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

The Real Peril in Overreaching in Argument

From Targin Sign Sys. v. Preferred Chiropractic Ctr., Ltd., 2010 U.S. Dist. LEXIS 4581 (N.D. Ill. Jan. 21, 2010) (Shadur, J.): [B]efore this opinion turns to the reason for so stating, counsel's effort evokes a concern that is familiar to judges but too often escapes lawyers: the potential risk to counsel when they push obviously ground ...
From Targin Sign Sys. v. Preferred Chiropractic Ctr., Ltd., 2010 U.S. Dist. LEXIS 4581 (N.D. Ill. Jan. 21, 2010) (Shadur, J.): [B]efore this opinion turns to the reason for so stating, counsel’s effort evokes a concern that is familiar to…
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Diversity Jurisdiction — Where Administration of Trust Attacked, Fiduciary Breach Alleged and Removal of Trustee Sought, Amount in Controversy Properly Determined by Reference to Corpus of Trust — Circuit Split

From Glass v. Steinberg, 2010 U.S. Dist. LEXIS 3483 (W.D. Ky. Jan. 15, 2010): Plaintiff, Richard Glass, brought this action in Kentucky state court seeking the following remedies: (1) removal of Defendant, Larry Steinberg, as trustee over two trusts created by Plaintiff's aunt, Sylvia Goldstein; (2) an order compelling Defendant to accou ...
From Glass v. Steinberg, 2010 U.S. Dist. LEXIS 3483 (W.D. Ky. Jan. 15, 2010): Plaintiff, Richard Glass, brought this action in Kentucky state court seeking the following remedies: (1) removal of Defendant, Larry Steinberg, as trustee over two trusts created…
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Settlement Payments Doctrine Exempts from Avoidance Commercial Paper Redemptions Made Through DTC — Rule of the Last Antecedent

From Alfa, S.A.B. de C.V. v. Enron Creditors Recovery Corp., 2009 U.S. Dist. LEXIS 123259 (S.D.N.Y. Nov. 20, 2009): The instant appeal is limited to a single question — whether the § 546(e) "safe harbor," which bars avoidance of transfers that constitute "settlement payments" made in connection with transactions in securities, extends ...
From Alfa, S.A.B. de C.V. v. Enron Creditors Recovery Corp., 2009 U.S. Dist. LEXIS 123259 (S.D.N.Y. Nov. 20, 2009): The instant appeal is limited to a single question — whether the § 546(e) “safe harbor,” which bars avoidance of transfers…
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§ 12(a)(2) Claims Subject to Rule 9(b) Requirements — Caselaw Split

From Greer v. Advanced Equities, Inc., 2010 U.S. Dist. LEXIS 3142 (N.D. Ill. Jan. 15, 2010): While not directly raised by the parties, the court notes that whether § 12(a)(2) claims are governed by Rule 9(b)'s specificity requirements is not a settled issue. While some courts have concluded that Rule 9(b)'s particularity requirement app ...
From Greer v. Advanced Equities, Inc., 2010 U.S. Dist. LEXIS 3142 (N.D. Ill. Jan. 15, 2010): While not directly raised by the parties, the court notes that whether § 12(a)(2) claims are governed by Rule 9(b)’s specificity requirements is not…
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Res Judicata, as Affirmative Defense, Should be Raised by a 12(c) Motion for Judgment on the Pleadings, Not a 12(b)(6) Dismissal Motion — Claim-Splitting — Illinois’ Single-Refiling Rule

From Carr v. Tillery, 2010 U.S. App. LEXIS 685 (7th Cir. Jan. 12, 2010): Rex Carr, a successful class action lawyer in southern Illinois, is locked in mortal combat with his former law partners, the defendants in a RICO case (with a supplemental state-law claim, 28 U.S.C. § 1367) that he brought in federal district court. The dispute is ...
From Carr v. Tillery, 2010 U.S. App. LEXIS 685 (7th Cir. Jan. 12, 2010): Rex Carr, a successful class action lawyer in southern Illinois, is locked in mortal combat with his former law partners, the defendants in a RICO case…
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New York Judiciary Law § 487 Not Limited to Attorney Misconduct in Courts within the State of New York — Second Circuit Limitation Rejected by Bronx Supreme

From Cinao v. Reers, 2010 NY Slip Op 20006, 2010 N.Y. Misc. LEXIS 30 (Jan. 14, 2010): Judiciary Law § 487 "descends from the first Statute of Westminster, which was adopted by the Parliament summoned by King Edward I of England in 1275." (See Amalfitano v Rosenberg, 12 NY3d 8, 12 [2009].) The statute reads in its entiret ...
From Cinao v. Reers, 2010 NY Slip Op 20006, 2010 N.Y. Misc. LEXIS 30 (Jan. 14, 2010): Judiciary Law § 487 “descends from the first Statute of Westminster, which was adopted by the Parliament summoned by King Edward I of…
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Electronic Spoliation — Purpose and Limitations of Rule 37(e)

From Tech. Sales Assoc’s, Inc. v. Ohio Star Forge Co., 2009 U.S. Dist. LEXIS 22431 (E.D. Mich. Mar. 19, 2009): Fed. R. Civ. P. 37(e) states as follows: (e) Failure to Produce Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party fo ...
From Tech. Sales Assoc’s, Inc. v. Ohio Star Forge Co., 2009 U.S. Dist. LEXIS 22431 (E.D. Mich. Mar. 19, 2009): Fed. R. Civ. P. 37(e) states as follows: (e) Failure to Produce Electronically Stored Information. Absent exceptional circumstances, a court…
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Tests for Finding Spoliation and Determining Sanctions — Third Circuit

From Bensel v. Allied Pilots Ass’n, 2009 U.S. Dist. LEXIS 118342 (D.N.J. Dec. 17, 2009): Generally, to determine spoliation of evidence, four factors must be found: (1) the evidence in question must be within the party's control; (2) it must appear that there has been actual suppression or withholding of the evidence; (3) the evidence de ...
From Bensel v. Allied Pilots Ass’n, 2009 U.S. Dist. LEXIS 118342 (D.N.J. Dec. 17, 2009): Generally, to determine spoliation of evidence, four factors must be found: (1) the evidence in question must be within the party’s control; (2) it must…
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Pre-Removal State Court Sanction Treated as if Entered by Federal District Court — “Reconsideration” Denied — Law of the Case Doctrine (Good Quote)

The state court in Paschen v. Estate of McDaniel, 2010 U.S. Dist. LEXIS 1066 (D. Idaho Jan. 7, 2010), entered a monetary sanction in the amount of $7,955 — for attorneys' fees — pursuant to Idaho Rule of Civil Procedure 11, prior to removal. The sanctioned party moved the federal district court for reconsideration after removal: Up ...
The state court in Paschen v. Estate of McDaniel, 2010 U.S. Dist. LEXIS 1066 (D. Idaho Jan. 7, 2010), entered a monetary sanction in the amount of $7,955 — for attorneys’ fees — pursuant to Idaho Rule of Civil Procedure…
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RICO — Activities of Enterprise, Not Each Predicate Act, Must Affect Interstate Commerce

From Aguilar v. Mega Lighting, Inc., 2009 U.S. Dist. LEXIS 28348 (C.D. Cal. April 6, 2009): RICO grants jurisdiction over "any enterprise engaged in, or the activities of which affect[] interstate or foreign commerce," which is used for "a pattern of racketeering activity." 18 U.S.C. § 1962(c). RICO requires that the activities of t ...
From Aguilar v. Mega Lighting, Inc., 2009 U.S. Dist. LEXIS 28348 (C.D. Cal. April 6, 2009): RICO grants jurisdiction over “any enterprise engaged in, or the activities of which affect[] interstate or foreign commerce,” which is used for “a pattern…
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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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