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

Second Circuit Panel Unable to Agree as to whether Magistrate Judges May Impose Rule 11 Sanctions — Circuit Split

From Kiobel v. Millson, 2010 U.S. App. LEXIS 378 (2d Cir. Jan. 8, 2010): Opinion of Court In this appeal we consider a challenge to the imposition of sanctions under Rule 11 of the Federal Rules of Civil Procedure. Appellants are defense counsel in an action brought pursuant to the Alien Tort Statute ("ATS"), 28 U.S.C. § ...
From Kiobel v. Millson, 2010 U.S. App. LEXIS 378 (2d Cir. Jan. 8, 2010): Opinion of Court In this appeal we consider a challenge to the imposition of sanctions under Rule 11 of the Federal Rules of Civil Procedure. Appellants…
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Civil Contempt Standards — Order of Civil Contempt for Failure to Pay Sanctions Award Vacated — Unresolved Question as to Contemnor’s Ability to Pay

From Camerons Hardware Inc. v. Independence Blue Cross, 2010 U.S. App. LEXIS 2028 (3d Cir. Jan. 15, 2010): On July 28, 2008, the District Court, after a hearing, granted the motions for sanctions. The Court concluded that "[a]t the time Mr. Otter filed the Complaint on behalf of his clients, he had been informed four times previously his ...
From Camerons Hardware Inc. v. Independence Blue Cross, 2010 U.S. App. LEXIS 2028 (3d Cir. Jan. 15, 2010): On July 28, 2008, the District Court, after a hearing, granted the motions for sanctions. The Court concluded that “[a]t the time…
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Email Authentication Other than through the Author

From EEOC v. Olsten Staffing Servs. Corp., 2009 U.S. Dist. LEXIS 88903 (W.D. Wis. Sept. 28, 2009): This case raises questions about the scope of an employment agency's obligations under the Americans with Disabilities Act. Zachary Schaefer is a deaf person who sought employment unsuccessfully through defendant Olsten Staffing Services Co ...
From EEOC v. Olsten Staffing Servs. Corp., 2009 U.S. Dist. LEXIS 88903 (W.D. Wis. Sept. 28, 2009): This case raises questions about the scope of an employment agency’s obligations under the Americans with Disabilities Act. Zachary Schaefer is a deaf…
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Standards for Proving “Deliberate Ignorance” to Establish Knowledge — Collective Knowledge Not Appropriate to Establish Subjective Intent

From Chaney v. Dreyfus Service Corp., 2010 U.S. App. LEXIS 1572 (5th Cir. Jan. 25, 2010): Plaintiffs, receivers of seven insurance companies (the "Receivers"), appeal the grant of summary judgment in favor of Dreyfus Service Corporation ("DSC"). Throughout the 1990s the insurance companies' assets were looted through a complex fraud sche ...
From Chaney v. Dreyfus Service Corp., 2010 U.S. App. LEXIS 1572 (5th Cir. Jan. 25, 2010): Plaintiffs, receivers of seven insurance companies (the “Receivers”), appeal the grant of summary judgment in favor of Dreyfus Service Corporation (“DSC”). Throughout the 1990s…
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Supplemental Jurisdiction Over Issues of First Impression under European Antitrust Law Declined

From Carpenter Co. v. BASF SE, 2010 U.S. Dist. LEXIS 5791 (D. Kan. Jan. 25, 2010): Section 1367(c) provides that a district court may decline to exercise supplemental jurisdiction if "(1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court ...
From Carpenter Co. v. BASF SE, 2010 U.S. Dist. LEXIS 5791 (D. Kan. Jan. 25, 2010): Section 1367(c) provides that a district court may decline to exercise supplemental jurisdiction if “(1) the claim raises a novel or complex issue of…
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Inherent Power, But Not §1927, Sanctions Appropriate for Pre-Litigation Misconduct — §1927 Sanctions Imposable on Pro Se Lawyer Representing Self

From Carr v. Tillery, 2010 U.S. App. LEXIS 685 (7th Cir. Jan. 12, 2010): Turning now to the cross-appeal, we think the defendants' motion for sanctions should not have been denied. *** The motion complained that [plaintiff] Carr is harassing the defendants with repetitive litigation, including a suit — this suit — that borders ...
From Carr v. Tillery, 2010 U.S. App. LEXIS 685 (7th Cir. Jan. 12, 2010): Turning now to the cross-appeal, we think the defendants’ motion for sanctions should not have been denied. *** The motion complained that [plaintiff] Carr is harassing…
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RICO — Even Boyle’s Generous Definition of “Enterprise” Unsatisfied

From Rao v. BP Prods. N. Am., Inc., 589 F.3d 389 (7th Cir. 2009): After BP Products North America, Inc. ("BP") determined that Salik Rao had secretly paid a BP manager to influence the award of operating agreements in Rao's favor, BP told Rao it was terminating its franchise relationship with him at his two BP gas stations. *** The ...
From Rao v. BP Prods. N. Am., Inc., 589 F.3d 389 (7th Cir. 2009): After BP Products North America, Inc. (“BP”) determined that Salik Rao had secretly paid a BP manager to influence the award of operating agreements in Rao’s…
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“Zubulake Revisited: Six Years Later” — Excerpts from Judge Scheindlin’s Major New Electronic Spoliation Sanctions Decision

Titled “Zubulake Revisited: Six Years Later,” Judge Scheindlin’s new decision in Pension Comm. of Univ. of Montreal, 2010 U.S. Dist. LEXIS 4546 (S.D.N.Y. Jan. 15, 2010) (amended opinion) explores critical spoliation sanctions issues, including important procedural nuances. Key excerpts: I. INTRODUCTION In a ...
Titled “Zubulake Revisited: Six Years Later,” Judge Scheindlin’s new decision in Pension Comm. of Univ. of Montreal, 2010 U.S. Dist. LEXIS 4546 (S.D.N.Y. Jan. 15, 2010) (amended opinion) explores critical spoliation sanctions issues, including important procedural nuances. Key excerpts: I.…
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Neither Jury Demand Nor Non-Core Character of Action Necessitate Withdrawal of Reference to Bankruptcy Court, At Least Not Immediately

From Tate v. CitiMortgage, Inc., 2010 U.S. Dist. LEXIS 3675 (S.D. Ala. Jan 18, 2010): [E]ven if the Bankruptcy Court's decision to strike CitiMortgage's jury demand was erroneous, the mere presence of a jury demand would not justify withdrawal of the reference at this time. Federal courts have universally held that "a Seventh Amendment j ...
From Tate v. CitiMortgage, Inc., 2010 U.S. Dist. LEXIS 3675 (S.D. Ala. Jan 18, 2010): [E]ven if the Bankruptcy Court’s decision to strike CitiMortgage’s jury demand was erroneous, the mere presence of a jury demand would not justify withdrawal of…
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Plaintiff May Not Amend Complaint Via Arguments in Brief Opposing Summary Judgment

From Lawshe v. Squeri, 2010 U.S. Dist. LEXIS 3590 (D.N.J. Jan. 19, 2010): Plaintiffs now state that they are bringing claims under the civil Racketeer and Corrupt Organizations Act (RICO). (Pl. Opp'n at 18.) Plaintiffs argue that, because the RICO Act has a statute of limitations period that is longer than one year, their claims are no ...
From Lawshe v. Squeri, 2010 U.S. Dist. LEXIS 3590 (D.N.J. Jan. 19, 2010): Plaintiffs now state that they are bringing claims under the civil Racketeer and Corrupt Organizations Act (RICO). (Pl. Opp’n at 18.) Plaintiffs argue that, because the RICO…
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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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