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

Denial of Sanctions Affirmed Where Party “Substantially Complied” with Discovery Orders

From Guimaraes v. NORS, 2010 U.S. App. LEXIS 2953 (11th Cir. Feb. 16, 2010): Under Rule 16(f), a court may impose sanctions if a party or its attorney violates a scheduling or other pretrial order, including a discovery order. Fed.R.Civ.P. 16(f)(1)(C). We have upheld the denial of sanctions where the non-moving party had not timely p ...
From Guimaraes v. NORS, 2010 U.S. App. LEXIS 2953 (11th Cir. Feb. 16, 2010): Under Rule 16(f), a court may impose sanctions if a party or its attorney violates a scheduling or other pretrial order, including a discovery order. Fed.R.Civ.P.…
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Measuring Veracity for Securities Fraud Purposes

From Operating Local 649 Annuity Trust fund v. Smith Barney Fund Mgmt., LLC, 2010 U.S. App. LEXIS 2954 (2d Cir. Feb. 16, 2010): The veracity of a statement or omission is measured not by its literal truth, but by its ability to accurately inform rather than mislead prospective buyers. Cf. Greenapple v. Detroit Edison Co., 6 ...
From Operating Local 649 Annuity Trust fund v. Smith Barney Fund Mgmt., LLC, 2010 U.S. App. LEXIS 2954 (2d Cir. Feb. 16, 2010): The veracity of a statement or omission is measured not by its literal truth, but by its…
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SEC vs. Private 10b-5 Actions — Differences in Elements — Does the PSLRA Inferentially Demonstrate That Recklessness Is Enough?

From Gebhart v. SEC, 2010 U.S. App. LEXIS 3043 (9th Cir. Feb. 17, 2010): [Footnote] 8 The elements of a section 10(b) or Rule 10b-5 claim vary depending on the identities of the parties and the nature of the relief sought. In a private securities fraud action, the plaintiff generally must prove five elements: (1) a ...
From Gebhart v. SEC, 2010 U.S. App. LEXIS 3043 (9th Cir. Feb. 17, 2010): [Footnote] 8 The elements of a section 10(b) or Rule 10b-5 claim vary depending on the identities of the parties and the nature of the relief…
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Tripartite Arbitration Panel’s Ex Parte Session with Expert Did Not Violate Federal Arbitration Act or Vitiate Award — Test Is Fundamental Fairness — Prejudice Required for Violation of § 10(a)(3) of FAA

From U.S. Life Ins. Co. v. Superior Nat’l Ins. Co., 591 F.3d 1167 (9th Cir. 2010): We are asked to determine whether an arbitration panel violated the Federal Arbitration Act (FAA), 9 U.S.C. §§ 2-16. The process employed by the arbitration panel, which included an ex parte meeting with panel-retained workers' compensation experts, wa ...
From U.S. Life Ins. Co. v. Superior Nat’l Ins. Co., 591 F.3d 1167 (9th Cir. 2010): We are asked to determine whether an arbitration panel violated the Federal Arbitration Act (FAA), 9 U.S.C. §§ 2-16. The process employed by the…
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RICO § 1962(a) and (b) Requirements

From Carmona v. Spanish Broad. Sys., 2009 U.S. Dist. LEXIS 26479 (S.D.N.Y. Mar. 30, 2009): To succeed under 1962(a), the alleged use or investment injury must be "distinct from the injuries resulting from predicate acts" themselves. Conclusory allegations that defendants used or invested income received from plaintiffs are insufficient ...
From Carmona v. Spanish Broad. Sys., 2009 U.S. Dist. LEXIS 26479 (S.D.N.Y. Mar. 30, 2009): To succeed under 1962(a), the alleged use or investment injury must be “distinct from the injuries resulting from predicate acts” themselves. Conclusory allegations that defendants…
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Motions for Reconsideration under Rule 59(e) — Standards — Third Circuit

From Peng v. Gabay, 2009 U.S. Dist. LEXIS 121004 (D.N.J. Dec. 29, 2009): Motion for Reconsideration A motion to reconsider, pursuant to FED. R. CIV. P. 59(e) and L. CIV. R. 7.1(i), is "an extremely limited procedural vehicle," and requests pursuant to these rules are to be granted "sparingly." P. Schoenfeld Asset Mgmt ...
From Peng v. Gabay, 2009 U.S. Dist. LEXIS 121004 (D.N.J. Dec. 29, 2009): Motion for Reconsideration A motion to reconsider, pursuant to FED. R. CIV. P. 59(e) and L. CIV. R. 7.1(i), is “an extremely limited procedural vehicle,” and requests…
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Sanctions — PSLRA Mandatory Rule 11 Review Triggered by Summary Judgment on Federal Securities Claims Even If Pendent State Law Claims Dismissed without Prejudice

From Libaire v. Kaplan, 2010 U.S. Dist. LEXIS 4640 (E.D.N.Y. Jan. 21, 2010): Under the PSLRA, "upon final adjudication of the action" a court is required to make specific findings regarding compliance with each requirement of Rule 11(b). See 15 U.S.C. § 78u-4(c)(1). Relying upon Unite Here v. Cintas Corp., 500 F. Supp. 2 ...
From Libaire v. Kaplan, 2010 U.S. Dist. LEXIS 4640 (E.D.N.Y. Jan. 21, 2010): Under the PSLRA, “upon final adjudication of the action” a court is required to make specific findings regarding compliance with each requirement of Rule 11(b). See 15…
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Substantive Causation Requirements Do Not Control the Admissibility of Expert Evidence Offered on the Issue of Causation

From Lofton v. McNeil Consumer & Specialty Pharm., 2010 U.S. Dist. LEXIS 6390 (N.D. Tex. Jan. 27, 2010): The court next considers Defendants' argument that [ Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997)] controls the court's determination of relevancy in the context of the admissibility of expert testim ...
From Lofton v. McNeil Consumer & Specialty Pharm., 2010 U.S. Dist. LEXIS 6390 (N.D. Tex. Jan. 27, 2010): The court next considers Defendants’ argument that [ Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997)] controls the court’s…
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Sovereign Immunity — Education Department Immune from FDCPA Suit Relating to Student Loan — Unequivocal Congressional Waiver Required

From Ha v. U.S. Dep’t of Educ., 2010 U.S. Dist. LEXIS 2870 (D.D.C. Jan. 14, 2010): Incredibly, the determination of whether the FDCPA contains a waiver of sovereign immunity is a matter of first impression within our Circuit. At least one U.S. Court of Appeals and several U.S. District Courts, however, have evaluated this issue and fou ...
From Ha v. U.S. Dep’t of Educ., 2010 U.S. Dist. LEXIS 2870 (D.D.C. Jan. 14, 2010): Incredibly, the determination of whether the FDCPA contains a waiver of sovereign immunity is a matter of first impression within our Circuit. At least…
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Post-Judgment Amendment of Complaint

From In re Assicurazioni Generali, S.P.A., 2010 U.S. App. LEXIS 953 (2d Cir. Feb. 9, 2010): The filing of an amended complaint is not permissible once a judgment is entered unless the judgment is set aside or vacated pursuant to Rule 59 of the Federal Rules of Civil Procedure. Nat'l Petrochemical Co. of Iran v. M/T Stolt Sheaf, 9 ...
From In re Assicurazioni Generali, S.P.A., 2010 U.S. App. LEXIS 953 (2d Cir. Feb. 9, 2010): The filing of an amended complaint is not permissible once a judgment is entered unless the judgment is set aside or vacated pursuant to…
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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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