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

Securities — What Does It Mean to “Make” a Statement within 10b-5? — First Circuit En Banc — Good Quotes on Statutory Construction

From SEC v. Tambone, 2010 U.S. App. LEXIS 5031 (1st Cir. March 10, 2010): Rule 10b-5(b), promulgated by the Securities and Exchange Commission (SEC) under the aegis of section 10(b) of the Securities Exchange Act of 1934 (Exchange Act), renders it unlawful "[t]o make any untrue statement of a material fact . . . in connection with the pur ...
From SEC v. Tambone, 2010 U.S. App. LEXIS 5031 (1st Cir. March 10, 2010): Rule 10b-5(b), promulgated by the Securities and Exchange Commission (SEC) under the aegis of section 10(b) of the Securities Exchange Act of 1934 (Exchange Act), renders…
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RICO — Distinctiveness Requirement of § 1962(c) Unsatisfied by Enterprise Alleged to Consist of Defendants (Dentist and PCs He Formed to Defraud Insurer)

From State Farm Mut. Auto. Ins. Co. v. Cohan, 2009 U.S. Dist. LEXIS 125653 (E.D.N.Y. Dec. 30, 2009): The plaintiff argues, first, that it has sufficiently alleged that the defendants constitute an "association-in-fact enterprise" for RICO purposes. RICO defines an enterprise as "any individual, partnership, corporation, association, or ot ...
From State Farm Mut. Auto. Ins. Co. v. Cohan, 2009 U.S. Dist. LEXIS 125653 (E.D.N.Y. Dec. 30, 2009): The plaintiff argues, first, that it has sufficiently alleged that the defendants constitute an “association-in-fact enterprise” for RICO purposes. RICO defines an…
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Attorney-Client Privilege — Crime-Fraud Exception — 7th Circuit Standards

From United States v. Boender, 2010 U.S. Dist. LEXIS 20670 (N.D. Ill. Mar. 8, 2010): Unless limited by the U.S. Constitution, an Act of Congress, or a Supreme Court Rule, privileges are "governed by the principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience." Fed. R. ...
From United States v. Boender, 2010 U.S. Dist. LEXIS 20670 (N.D. Ill. Mar. 8, 2010): Unless limited by the U.S. Constitution, an Act of Congress, or a Supreme Court Rule, privileges are “governed by the principles of the common law…
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First Amendment Privilege Against Discovery

From In re Motor Fuel Temperature Sales Pracs. Litig., 2010 U.S. Dist. LEXIS 19752 (D. Kan. Mar. 4, 2010): In the first motion, plaintiffs sought information and documents from certain defendants relating to their communications with trade associations, weights and measures organizations and government agencies. *** Defendants objected th ...
From In re Motor Fuel Temperature Sales Pracs. Litig., 2010 U.S. Dist. LEXIS 19752 (D. Kan. Mar. 4, 2010): In the first motion, plaintiffs sought information and documents from certain defendants relating to their communications with trade associations, weights and…
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§ 1292(b) Interlocutory Appeal Standards — Second Circuit

From Goldberg v. UBS AG, 2010 U.S. Dist. LEXIS 19754 (E.D.N.Y. Mar. 5, 2010): A district court has the discretion to certify an order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) if the court "is of the opinion that: (1) the order 'involves a controlling question of law'; (2) 'as to which there is substantial ground for d ...
From Goldberg v. UBS AG, 2010 U.S. Dist. LEXIS 19754 (E.D.N.Y. Mar. 5, 2010): A district court has the discretion to certify an order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) if the court “is of the opinion…
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Attorney as Officer of the Court Is Not a Federal Officer Permitting Removal under 28 U.S.C. § 1442 — Fees Awarded under § 1447(c) — Fed.R.App.P. 38 Sanctions Imposed

From Howard v. St. Germain, 2010 U.S. App. LEXIS 4727 (5th Cir. Mar. 5, 2010): Appellants do not seek review of the district court's decision to remand. See 28 U.S.C. § 1447(d). Thus, we only consider the district court's decision to impose liability on all Appellants for Appellee's legal fees. We review a district court's awa ...
From Howard v. St. Germain, 2010 U.S. App. LEXIS 4727 (5th Cir. Mar. 5, 2010): Appellants do not seek review of the district court’s decision to remand. See 28 U.S.C. § 1447(d). Thus, we only consider the district court’s decision…
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Newspaper Has Standing to Object to Subpoena to Protect Privacy of Anonymous Posters to Its Website — The Privacy Right of Anonymity

From McVicker v. King, 2010 U.S. Dist. LEXIS 18864 (W.D. Pa. Mar. 3, 2010): Presently before the Court is the MOTION TO COMPEL RESPONSE TO SUBPOENA directed to non-party Trib Total Media, Inc.... For the reasons that follow, the Motion to Compel Response to Subpoena will be denied. *** On April 14, 2009, Plaintiff, William L. McVic ...
From McVicker v. King, 2010 U.S. Dist. LEXIS 18864 (W.D. Pa. Mar. 3, 2010): Presently before the Court is the MOTION TO COMPEL RESPONSE TO SUBPOENA directed to non-party Trib Total Media, Inc…. For the reasons that follow, the Motion…
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Non-Self-Executing Treaty Does Not Support a Claim Under the Alien Tort Claims Act

From Veiga v. World Meteorological Org., 2010 U.S. App. LEXIS 4440 (2d Cir. Mar. 3, 2010): Maria Do Rosario Veiga appeals from the judgment of the United States District Court for the Southern District of New York (Marrero, J.) dismissing her claims for lack of subject-matter jurisdiction. Rosario Veiga brought suit against the World Mete ...
From Veiga v. World Meteorological Org., 2010 U.S. App. LEXIS 4440 (2d Cir. Mar. 3, 2010): Maria Do Rosario Veiga appeals from the judgment of the United States District Court for the Southern District of New York (Marrero, J.) dismissing…
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Recurring Misapplications of RICO

From Meier v. Musburger, 588 F. Supp. 2d 883 (N.D. Ill. 2008): Congress passed RICO in an effort to combat organized, long-term criminal activity. H.J. Inc. v. Northwestern Bell Telephone Co. , 492 U.S. 229, 242, 109 S. Ct. 2893, 106 L. Ed. 2d 195 (1989); Midwest Grinding Co., Inc. v. Spitz, 976 F.2d 1016, 1019 (7th Cir. 1 ...
From Meier v. Musburger, 588 F. Supp. 2d 883 (N.D. Ill. 2008): Congress passed RICO in an effort to combat organized, long-term criminal activity. H.J. Inc. v. Northwestern Bell Telephone Co. , 492 U.S. 229, 242, 109 S. Ct. 2893,…
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Spoliation — Deeming Facts Admitted in Addition to Adverse Inference and Fees

Chevron USA, Inc. v. M & M Petroleum Servs., Inc., 2009 U.S. Dist. LEXIS 68829 (C.D. Cal. Aug. 6, 2009): (a) The Court deems established —- and draws an inference adverse to M&M and concludes that the documents spoliated by M&M support Chevron's allegations of the following facts: (i) the Secret Books (Ex 90; 111-113 and 133) are ...
Chevron USA, Inc. v. M & M Petroleum Servs., Inc., 2009 U.S. Dist. LEXIS 68829 (C.D. Cal. Aug. 6, 2009): (a) The Court deems established —- and draws an inference adverse to M&M and concludes that the documents spoliated by…
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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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