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

Arbitration — Supreme Court Decision in Arthur Andersen v. Carlisle Applies to Cases Arising under New York Convention, Not Just under FAA

From Todd v. Steamship Mut. Underwriting Ass’n, 2010 U.S. App. LEXIS 5637 (5th Cir. Mar. 18, 2010): Early in 2000, Todd was injured while serving as a chef onboard the M/V AMERICAN QUEEN, a replica steamboat owned and operated by the Delta Queen Steam boat Company ("Delta Queen"). When the injury occurred, the ship was cruising along t ...
From Todd v. Steamship Mut. Underwriting Ass’n, 2010 U.S. App. LEXIS 5637 (5th Cir. Mar. 18, 2010): Early in 2000, Todd was injured while serving as a chef onboard the M/V AMERICAN QUEEN, a replica steamboat owned and operated by…
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Spoliation — Five-Factor Test for Case-Terminating Sanctions and the Exclusion of Evidence in the Ninth Circuit

From Kopitar v. Nationwide Mut. Ins. Co., 2010 U.S. Dist. LEXIS 25079 (E.D. Cal. Mar. 17, 2010): The Ninth Circuit has held that a district court has the authority to impose sanctions for spoliation pursuant to: "the inherent power of federal courts to levy sanctions in response to abusive litigation practices, and the availability of san ...
From Kopitar v. Nationwide Mut. Ins. Co., 2010 U.S. Dist. LEXIS 25079 (E.D. Cal. Mar. 17, 2010): The Ninth Circuit has held that a district court has the authority to impose sanctions for spoliation pursuant to: “the inherent power of…
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Attorney-Client Privilege — At Issue Waiver — Filing Fraud Claim Does Not Put Advice of Plaintiff’s Counsel at Issue, But Factual Information Conveyed Is Discoverable

From Ill. Central R.R. v. Harried, 2010 U.S. Dist. LEXIS 20938 (N.D. Ill. Feb . 11, 2010): In their Motion to Compel and in their Motion for Ruling regarding the documents for in camera review, the defendants argue that IC implicitly waived the attorney/client privilege by filing this fraud claim and making the question of "reliance" a ce ...
From Ill. Central R.R. v. Harried, 2010 U.S. Dist. LEXIS 20938 (N.D. Ill. Feb . 11, 2010): In their Motion to Compel and in their Motion for Ruling regarding the documents for in camera review, the defendants argue that IC…
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District Court May Not Entertain a Rule 60(b) Motion for Reconsideration of an Order Certifying a Class after Court of Appeals Denies Rule 23(f) Review — Issue Certified to Third Circuit

From In re Mercedes-Benz Tele Aid Contract Litig., 2010 U.S. Dist. LEXIS 23624 (D.N.J. Mar. 15, 2010): [T]he Court will certify an interlocutory appeal of *** [the issue] whether a district court may entertain a motion for reconsideration of an order certifying a class after a request for interlocutory appeal of that order pursuant to Fed ...
From In re Mercedes-Benz Tele Aid Contract Litig., 2010 U.S. Dist. LEXIS 23624 (D.N.J. Mar. 15, 2010): [T]he Court will certify an interlocutory appeal of *** [the issue] whether a district court may entertain a motion for reconsideration of an…
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Both Parties Consult with Individuals from the Same Expert Witness Firm — Defendant Retains First, and Individual Plaintiff Spoke with Co-Signs Defense Report — Standards for Disqualifying Side-Switching Experts

From Young v. So. Cal. Trans., Inc., 2010 U.S. Dist. LEXIS 22332 (S.D. Miss. Mar. 10, 2010): The plaintiff contends that the defendants' involvement of Dr. Metzler [with whom the plaintiff had discussions early on] as an expert in this case violates F.R.C.P. 26(b)(4)(B), which limits the ability of a party to discover facts known or opi ...
From Young v. So. Cal. Trans., Inc., 2010 U.S. Dist. LEXIS 22332 (S.D. Miss. Mar. 10, 2010): The plaintiff contends that the defendants’ involvement of Dr. Metzler [with whom the plaintiff had discussions early on] as an expert in this…
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Magistrate Judge’s Decisions — Standard of Review by District Court

From Hodczak v. Latrobe Spec. Steel Co., 2010 U.S. Dist. LEXIS 21267 (W.D. Pa. Mar. 9, 2010): The Federal Magistrates Act provides two separate standards for judicial review of a magistrate judge's decision: (i) "de novo" for magistrate resolution of dispositive matters, see 28 U.S.C. § 636(b)(1)(B)-(C), and (2) and (ii) "clea ...
From Hodczak v. Latrobe Spec. Steel Co., 2010 U.S. Dist. LEXIS 21267 (W.D. Pa. Mar. 9, 2010): The Federal Magistrates Act provides two separate standards for judicial review of a magistrate judge’s decision: (i) “de novo” for magistrate resolution of…
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Federal Arbitration Act § 10(a)(4) — Whether Arbitrator Exceeded Authority — Standards — Arbitration Agreement Must Require Explication of Reasoning

From In re Texans-Cuso Ins. Group, LLC, 421 B.R. 769 (Bankr. N.D. Tex. 2009): The Debtor relies on section 10(a)(4) of the FAA *** for its argument that the Accounting Arbitration Award should be vacated. The FAA provides that an arbitration award may be vacated when "the arbitrators exceeded their powers, or so imperfectly executed t ...
From In re Texans-Cuso Ins. Group, LLC, 421 B.R. 769 (Bankr. N.D. Tex. 2009): The Debtor relies on section 10(a)(4) of the FAA *** for its argument that the Accounting Arbitration Award should be vacated. The FAA provides that an…
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Ipse Dixit Pleading after Iqbal

From Willey v. J.P. Morgan Chase, N.A., 2009 U.S. Dist. LEXIS 57826 (S.D.N.Y. July 7, 2009): [I]pse dixit pleading is insufficient. *** Iqbal unequivocally rejects the notion that conclusory statements unsupported by factual allegations can subject a defendant to the burdens of discovery. Quoted with approval ...
From Willey v. J.P. Morgan Chase, N.A., 2009 U.S. Dist. LEXIS 57826 (S.D.N.Y. July 7, 2009): [I]pse dixit pleading is insufficient. *** Iqbal unequivocally rejects the notion that conclusory statements unsupported by factual allegations can subject a defendant to the…
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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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