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

To Determine a “Mass Action” within CAFA, the Court Does Not Pierce Corporations and Partnerships to Count Beneficial Owners, Not Even in Derivative Actions

From Anwar v. Fairfield Greenwich Ltd., 2009 U.S. Dist. LEXIS 120533 (S.D.N.Y. Nov. 30/Dec. 23, 2009): Plaintiffs in numerous actions consolidated by this Court for pretrial proceedings assert claims for financial losses allegedly arising from the fraudulent scheme perpetrated by Bernard L. Madoff. Four of those cases were originally fil ...
From Anwar v. Fairfield Greenwich Ltd., 2009 U.S. Dist. LEXIS 120533 (S.D.N.Y. Nov. 30/Dec. 23, 2009): Plaintiffs in numerous actions consolidated by this Court for pretrial proceedings assert claims for financial losses allegedly arising from the fraudulent scheme perpetrated by…
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Federal Jurisdiction over State Law Legal Malpractice Claim that Raises a Substantial, Contested Question of Patent Law that Congress Intended for Resolution in Federal Court

From Rockwood Retaining Walls, Inc. v. Patterson, Thuente, Skaar & Christensen, P.A., 2009 U.S. Dist. LEXIS 119349 (D. Minn. Dec. 22, 2009): The Federal Circuit has held that federal courts have jurisdiction over malpractice actions alleging sub-standard legal representation in patent prosecution and litigation suits if "the patent in ...
From Rockwood Retaining Walls, Inc. v. Patterson, Thuente, Skaar & Christensen, P.A., 2009 U.S. Dist. LEXIS 119349 (D. Minn. Dec. 22, 2009): The Federal Circuit has held that federal courts have jurisdiction over malpractice actions alleging sub-standard legal representation in…
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Advising Client to Pursue Litigation in Allegedly “Biased” Court Does Not Constitute Legal Malpractice — Conflict of Interest States No Claim Absent Damages

From Stonewell Corp. v. Jerseysearch Title Servs., 2010 U.S. Dist. LEXIS 1107 (S.D.N.Y. Jan. 7, 2010): The Court is not persuaded by Stonewell's contention that Dollinger was negligent in advising Stonewell to proceed in the "bias[ed] forum" of the Middle District of Florida instead of the more "impartial" forum of the New York district c ...
From Stonewell Corp. v. Jerseysearch Title Servs., 2010 U.S. Dist. LEXIS 1107 (S.D.N.Y. Jan. 7, 2010): The Court is not persuaded by Stonewell’s contention that Dollinger was negligent in advising Stonewell to proceed in the “bias[ed] forum” of the Middle…
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Implied Waiver of the Attorney-Client Privilege — Assertion of Good Faith Defense and Mention of Consultation with Counsel

From Henry v. Quicken Loans, Inc., 2008 U.S. Dist. LEXIS 112025 (E.D. Mich. Dec. 24, 2008): Magistrate Judge Pepe did *** find that statements by the defendants in their Good Faith Motion provided what he called the "plus factor" that pushed the defendants' assertions into an area of implied waiver. Specifically, in their Good Faith Moti ...
From Henry v. Quicken Loans, Inc., 2008 U.S. Dist. LEXIS 112025 (E.D. Mich. Dec. 24, 2008): Magistrate Judge Pepe did *** find that statements by the defendants in their Good Faith Motion provided what he called the “plus factor” that…
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What Constitute “Substantial Grounds for Difference of Opinion” for Purposes of 28 U.S.C. § 1292(b) — Second Circuit Standards

From U.S. ex rel Colucci v. Beth Israel Med. Ctr., 2009 U.S. Dist. LEXIS 117587 (S.D.N.Y. Dec. 15, 2009): Courts have found substantial ground for difference of opinion where there is conflicting authority on the issue or the issue is particularly difficult and one of first impression in the Second Circuit. Klinqhoffer, 921 F.2d ...
From U.S. ex rel Colucci v. Beth Israel Med. Ctr., 2009 U.S. Dist. LEXIS 117587 (S.D.N.Y. Dec. 15, 2009): Courts have found substantial ground for difference of opinion where there is conflicting authority on the issue or the issue is…
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Sanctions — An Argument May be Frivolous Even If It Concerns a Matter of First Impression

From John Richards Homes Building Co. 2009 U.S. Dist. LEXIS 117913 (E.D. Mich. Dec. 17, 2009): It simply cannot be the case that a party who raises an issue of first impression in a jurisdiction is entitled to absolute immunity from sanctions in raising the issue. Such a rule would require that a patently frivolous, yet novel, le ...
From John Richards Homes Building Co. 2009 U.S. Dist. LEXIS 117913 (E.D. Mich. Dec. 17, 2009): It simply cannot be the case that a party who raises an issue of first impression in a jurisdiction is entitled to absolute immunity…
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FOIA — Second Circuit Recognizes Glomar Doctrine, Allowing Agency to Refuse to Confirm or Deny the Existence of Records Where to Do So Would Cause Harm Cognizable under FOIA — In Camera Review Unnecessary If Affidavits Sufficient

From Wilner v. Nat’l Security Agency, 2009 U.S. App. LEXIS 28610 (2d Cir. Dec. 30, 2009): Plaintiffs submitted FOIA requests to the NSA and DOJ seeking records showing whether the government has intercepted plaintiffs' communications relating to the representation of their detainee clients. The NSA and DOJ served and filed so-called
From Wilner v. Nat’l Security Agency, 2009 U.S. App. LEXIS 28610 (2d Cir. Dec. 30, 2009): Plaintiffs submitted FOIA requests to the NSA and DOJ seeking records showing whether the government has intercepted plaintiffs’ communications relating to the representation of…
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RICO — Distinctiveness Requirement of § 1962(c) Held Unsatisfied Where Defendants = Constituents of Enterprise

From Pena v. International Union of Operating Engineers Local 150, 2009 U.S. Dist. LEXIS 62263 (N.D. Ill. July 21, 2009): It is well-established that a RICO "person" must be distinct from the RICO "enterprise." Haroco, Inc. v. American National Bank & Trust Co. of Chicago, 747 F.2d 384, 400 (7th Cir. 1984). RICO prohibits defendan ...
From Pena v. International Union of Operating Engineers Local 150, 2009 U.S. Dist. LEXIS 62263 (N.D. Ill. July 21, 2009): It is well-established that a RICO “person” must be distinct from the RICO “enterprise.” Haroco, Inc. v. American National Bank…
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Where Expert Testimony Depends on Disputed Factual Testimony, Proper Procedure Is to Introduce the Disputed Witness Testimony First and then Frame the Expert Questions as Hypotheticals

From Evans v. Washington Met. Area Transit Auth., 2009 U.S. Dist. LEXIS 117608 (D.D.C. Dec. 16, 2009): WMATA agrees that Mr. Stopper is an expert in accident reconstruction and does not challenge his background, education or experience. Rather, it asserts that Mr. Stopper relied solely upon the two pedestrians whose versions of events could not be phys ...
From Evans v. Washington Met. Area Transit Auth., 2009 U.S. Dist. LEXIS 117608 (D.D.C. Dec. 16, 2009): WMATA agrees that Mr. Stopper is an expert in accident reconstruction and does not challenge his background, education or experience. Rather, it asserts…
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Enforcing Injunction Against Non-Party — Terms of Service Inadequate to Link Website Provider to Poster of Defamatory Statements Sufficiently to Subject Provider to Injunction

From Blockowicz v. Williams, 2009 U.S. Dist. LEXIS 118599 (N.D. Ill. Dec. 21, 2009): The Communications Decency Act ("CDA"), 47 U.S.C. § 230, limits the ability of an aggrieved party to sue an internet website host for defamatory statements posted on its site by third-parties. See 47 U.S.C. § 230(c). Avoiding the CDA's limitati ...
From Blockowicz v. Williams, 2009 U.S. Dist. LEXIS 118599 (N.D. Ill. Dec. 21, 2009): The Communications Decency Act (“CDA”), 47 U.S.C. § 230, limits the ability of an aggrieved party to sue an internet website host for defamatory statements posted…
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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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