New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
Commercial Litigation and Arbitration

Complex Lit Blog

Enrolling and Enforcing a Foreign Judgment under Uniform Enforcement of Foreign Judgments Act = Transacting Business in the State and Subjects Filer to Personal Jurisdiction

From St. Paul Mercury Ins. Co. v. Cueto, 2010 U.S. Dist. LEXIS 20020 (D. Md. Mar. 5, 2010): The Maryland courts have not yet addressed the question of whether enrollment of foreign judgments constitutes purposeful availment of state law and satisfies the "[t]ransacts any business" requirement of the state's long-arm statute. Even outsi ...
From St. Paul Mercury Ins. Co. v. Cueto, 2010 U.S. Dist. LEXIS 20020 (D. Md. Mar. 5, 2010): The Maryland courts have not yet addressed the question of whether enrollment of foreign judgments constitutes purposeful availment of state law and…
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Magistrate Judge’s Denial of Motion to Stay Arbitration Is Non-Dispositive and Reviewed under Clearly Erroneous / Contrary to Law Standard — Issue of First Impression

From Powershare, Inc. v. Syntel, Inc., 597 F.3d 10 (1st Cir. 2010): The Federal Magistrates Act confers authority upon district judges to designate magistrate judges to hear pretrial motions. 28 U.S.C. § 636(b)(1). Magistrate judges serve as aides to, and under the supervision of, district judges; but magistrate judges are not themselve ...
From Powershare, Inc. v. Syntel, Inc., 597 F.3d 10 (1st Cir. 2010): The Federal Magistrates Act confers authority upon district judges to designate magistrate judges to hear pretrial motions. 28 U.S.C. § 636(b)(1). Magistrate judges serve as aides to, and…
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Res Judicata Effect of Federal Judgment Rendered in Diversity Case Determined by State Law — New York and Federal Law Substantially the Same

From Rafter v. Liddle, 2010 U.S. Dist. LEXIS 33952 (S.D.N.Y. Mar. 30, 2010): As an initial matter, the Court will examine whether New York or federal preclusion law (also referred to as res judicata) applies. In the Previous Action, the district court exercised diversity jurisdiction. *** Where a decision "claimed to have preclusive e ...
From Rafter v. Liddle, 2010 U.S. Dist. LEXIS 33952 (S.D.N.Y. Mar. 30, 2010): As an initial matter, the Court will examine whether New York or federal preclusion law (also referred to as res judicata) applies. In the Previous Action, the…
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Standing Challenge Decided under Rule 12(b)(1) as an Aspect of Subject Matter Jurisdiction — Personal Jurisdiction Decided under Rule 12(b)(2) — Determining Personal Jurisdiction in a Federal Question Case

From Cascade Fund LLLP v. Absolute Capital Mgmt. Holdings Ltd., 2010 U.S. Dist. LEXIS 32255 (D. Colo. Mar. 31, 2010): The issue of standing to bring a claim is considered a component of subject-matter jurisdiction and analyzed under Fed.R.Civ.P. 12(b)(1). The party asserting the existence of subject matter jurisdiction bears the burden o ...
From Cascade Fund LLLP v. Absolute Capital Mgmt. Holdings Ltd., 2010 U.S. Dist. LEXIS 32255 (D. Colo. Mar. 31, 2010): The issue of standing to bring a claim is considered a component of subject-matter jurisdiction and analyzed under Fed.R.Civ.P. 12(b)(1).…
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Pro Hac Vice Status Denied on Advocate-Witness and Conflict of Interest Grounds Where One Former Class Counsel Seeks to Sue Others for Malpractice in Earlier Class Action

From Decker v. Nagel Rice LLC, 2010 U.S. Dist. LEXIS 26530 (S.D.N.Y. Mar. 22, 2010): On November 2000, a ski train fire in Kaprun, Austria killed 155 individuals and left twelve survivors. In addition to a mediation that took place in Austria, American and foreign survivors and/or relatives of those who died in the fire brought multiple ...
From Decker v. Nagel Rice LLC, 2010 U.S. Dist. LEXIS 26530 (S.D.N.Y. Mar. 22, 2010): On November 2000, a ski train fire in Kaprun, Austria killed 155 individuals and left twelve survivors. In addition to a mediation that took place…
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Sanctions — Position Not Frivolous Where Supported by One, Out-of-Circuit, Lower Court, Minority-View Opinion and There Is No Binding Supreme Court Precedent

From Burns v. George Basilikas Trust, 2010 U.S. App. LEXIS 6290 (D.C. Cir. Mar. 26, 2010) (issue of statutory construction): In awarding sanctions, the bankruptcy court relied on the proposition that "§ 109(h)(3)(A), when read in the context of § 109(h) as a whole, cannot in any fashion be read to support" an interpretation that a pe ...
From Burns v. George Basilikas Trust, 2010 U.S. App. LEXIS 6290 (D.C. Cir. Mar. 26, 2010) (issue of statutory construction): In awarding sanctions, the bankruptcy court relied on the proposition that “§ 109(h)(3)(A), when read in the context of §…
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RICO — Dilution of Minority Shareholders through Extra Compensation to Majority = Derivative, Not Direct, Injury; Abusive Litigation Tactics ≠ Extortion; PSLRA Bars Claim that Purpose of Squeeze-Out was to Bar Minority from Follow-Up Merger

From Bixler v. Foster, 596 F.3d 751 (10th Cir. 2010): According to the complaint, defendants Duncan, Sapper, and Malone were directors and majority shareholders of METCO, a New Mexico uranium mining company. ***[T]hey negotiated a trade of METCO's uranium mining claims to subsidiaries of defendant Uranium King, Ltd. (UKL), an Australian c ...
From Bixler v. Foster, 596 F.3d 751 (10th Cir. 2010): According to the complaint, defendants Duncan, Sapper, and Malone were directors and majority shareholders of METCO, a New Mexico uranium mining company. ***[T]hey negotiated a trade of METCO’s uranium mining…
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Securities — Bespeaks Caution vs. Duty to Update — 2d Circuit

From Ill. State Board of Inv. v. Authentidate Holdings Corp., 2010 U.S. App. LEXIS 5226 (2d Cir. Mar. 12, 2010) (summary order): The district court found the statement in the September 8 press release nonactionable, in part, because Authentidate noted that there was "no guarantee" that an agreement would be reached. We agree that the sta ...
From Ill. State Board of Inv. v. Authentidate Holdings Corp., 2010 U.S. App. LEXIS 5226 (2d Cir. Mar. 12, 2010) (summary order): The district court found the statement in the September 8 press release nonactionable, in part, because Authentidate noted…
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Legal Malpractice — Continuing Representation Must Relate to the Specific Matter and Is Not Satisfied by Merely a “Continuing Relation”

From MIG, Inc. v. Paul Weiss Rifkin Wharton & Garrison, LLP, 2010 U.S. Dist. LEXIS 29548 (S.D.N.Y. Mar. 29, 2010): New York's statute of limitations for legal malpractice is three years. See N.Y. C.P.L.R. § 214(6). The claim accrues when the malpractice is committed. Shumsky v. Eisenstein, 96 N.Y.2d 164, 166 (2001). Ac ...
From MIG, Inc. v. Paul Weiss Rifkin Wharton & Garrison, LLP, 2010 U.S. Dist. LEXIS 29548 (S.D.N.Y. Mar. 29, 2010): New York’s statute of limitations for legal malpractice is three years. See N.Y. C.P.L.R. § 214(6). The claim accrues when…
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Rule 15(c) Does Not Permit Relation Back of Amendment Adding New Plaintiffs Whose Claims Are Untimely, Except in Cases of Misnomer, of Misdescription, of Change in Capacity in Which Suit Is Brought, to Add Real-Party-in-Interest or in a Class Action

From Asher v. Unarco Material Handling, Inc., 596 F.3d 313 (6th Cir. 2010): The parties agree that the question of whether Rule 15(c) permits relation back of an amendment adding otherwise untimely plaintiffs and their claims to a timely-filed complaint is an issue of first impression for our circuit. Nevertheless, in urging Rule 15(c)'s ...
From Asher v. Unarco Material Handling, Inc., 596 F.3d 313 (6th Cir. 2010): The parties agree that the question of whether Rule 15(c) permits relation back of an amendment adding otherwise untimely plaintiffs and their claims to a timely-filed complaint…
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Recent Posts

RICO: Indirect Purchasers (Car Buyers/Renters) Lack Standing to Sue Manufacturers for RICO Violations Even Though Intermediaries (Auto Dealer Direct Purchasers) Lack Any Damages

RICO: Statutory Requirement that RICO Be Liberally Construed Does Not Establish a More Liberal Pleading Standard for RICO Claims — “To Be Sure, Adequately Pleading a RICO Claim Can Be Challenging” (Good Quote) — Court May Dismiss Action Pursuant to Rule 41(b) Absent A Motion

Electronic Spoliation/Rule 37(e): (1) Finding of Recklessness But Neither Gross Negligence Nor Willfulness in Loss of Video Evidence Precludes Rule 37(e)(2)’s Severest Sanctions Because (i) No Intent to Deprive and (ii) Rule 37(e)(2) Displaces District Court’s Power to Invoke Inherent Power to Impose Those Sanctions — (2) Appellate Review = Abuse of Discretion, With The Caveat That Whether The District Court Applied The Correct Legal Standards Is Reviewed De Novo — (3) Inherent Power Is Often Available As An Alternate Source of Sanctioning Power But Can Be Limited by Rule or Statute, Something Which Courts Do Not Lightly Presume — (4) The Text of Rule 37(e)(2), As Confirmed by the Advisory Committee Note, Displaces Inherent Power to Impose the Sanctions Specified in the Rule or Any More Severe Sanctions — (5) “Intent to Deprive” in Rule 37(e)(2) = “The Willful Destruction Of Evidence With The Purpose Of Avoiding Its Discovery By An Adverse Party” — (6) Appellate Standing Conferred by Virtue of Issuance of Sanctions Regardless of Merits Outcome — (7) Value of Advisory Committee Notes in Interpreting Rules Enacted without Change Despite General Reticence to Rely on Legislative History

RICO: (1) Plaintiff Need Not Suffer Injury from Each Predicate Act to Establish Standing, And The Pattern May Include Predicates As to Which No Plaintiff Has Standing — (2) 7 Elements of a Civil RICO Claim (2d Circuit Articulation) Which Must Be Established As to Each Defendant — (3) Requirements of an Association-in-Fact Enterprise — (4) Each Defendant Must Personally Commit 2 or More Predicate Acts — (5) Pattern of Racketeering Activity: Horizontal and Vertical Elements — (6) No Requirement That All Members of a RICO Enterprise Joined at Inception — Can Join Over Time/Others Can Quit — (7) Cannot Charge 2 Predicate Acts Where One Action Violates Two Statutes — (8) A Footnote to Consider for Briefs: “Unless Otherwise Noted, When Quoting Judicial Decisions This Order Accepts All Alterations And Omits All Citations, Footnotes, And Internal Quotation Marks.”

For An Appeal to Be Timely, A Motion for Reconsideration in The District Court (A Rule 59(e) Motion) Must Be Filed, And Not Just Served within 30 Days of The Decision, to Toll The 30-Day Period for Filing An Appeal

There Is No Good-Faith Defense For Issuing An Overly Burdensome Subpoena

Purposes of Rule 37 and Section 1927 Sanctions

While Rule 11 Doesn’t Apply to Appellate Proceedings (Unless It Has Been Incorporated in Local Appellate Rules), Rule 11 Caselaw Is Looked to for Guidance in Interpreting Applicable Sanctions Powers on Appeal

Rule 11 Sanctions & Appellate Review: Abuse of Discretion Standard Applies Unless Sanctions Are Based Solely (Not Just in Part) on Legal Issues, in Which Case Review Is De Novo

Rule 37(b)(2)(A) Sanctions for Altering Expert’s 26(a)(2)(B) Report — Without the Expert’s Knowledge or Approval — by Converting It from PDF to Word, Changing Headings and Other Formatting, and Omitting a Page of Relevant Text and Appendices, Even Though Expert Testified That The Overall Substance of the Report Was Unchanged — Rule 37(b)(2)(A) Sanctions May Be Reversed If Failure to Comply with Discovery Order Was Due to Misunderstanding or Inability to Comply

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New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

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