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 Fiduciary Exception to the Attorney-Client Privilege — History and Circuit Survey

From In re United States, 2009 U.S. App. LEXIS 28598 (Fed. Cir. Dec. 30, 2009): The United States petitions for a writ of mandamus to direct the Court of Federal Claims ("trial court") to vacate its orders requiring the United States to produce documents that it asserts are protected by the attorney-client privilege. Jicarilla Apache Nati ...
From In re United States, 2009 U.S. App. LEXIS 28598 (Fed. Cir. Dec. 30, 2009): The United States petitions for a writ of mandamus to direct the Court of Federal Claims (“trial court”) to vacate its orders requiring the United…
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The Ten Most Important Developments in Federal Civil Practice in the 00s

1. Twiqbal 2. Federal Rule of Evidence 502 3. The War Against Punitive Damages 4. The Eruption of Spoliation (Fewer than 180 state and federal decisions in 1999; more than 600 in 2009) 5. The Accretion of Federal Jurisdiction (E.g., CAFA, Exxon M ...
1. Twiqbal 2. Federal Rule of Evidence 502 3. The War Against Punitive Damages 4. The Eruption of Spoliation (Fewer than 180 state and federal decisions in 1999; more than 600 in 2009) 5. The Accretion of Federal Jurisdiction (E.g.,…
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The Five Most Important Developments in Federal Civil Practice in 2009

1. Iqbal and Congressional efforts to reverse it. 2. December 1, 2009 Civil Rules amendments — permitting post-answer amendment of complaint; limiting the time to amend after service of a motion to dismiss; and changing time periods and time computation rules 3. Mohawk Indus. v. Carpenter, 2009 U ...
1. Iqbal and Congressional efforts to reverse it. 2. December 1, 2009 Civil Rules amendments — permitting post-answer amendment of complaint; limiting the time to amend after service of a motion to dismiss; and changing time periods and time computation…
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RICO — Concrete, Definite, Tangible Losses Necessary to Establish RICO Injury

From Fisher v. Halliburton, 2009 U.S. Dist. LEXIS 117427 (S.D. Tex. Dec. 17, 2009): [P]laintiffs can only bring RICO claims for concrete, definite, and tangible losses. Price v. Pinnacle Brands, Inc., 138 F.3d 602, 607 (5th Cir. 1998) ("Injury to mere expectancy interests or to an 'intangible property interest' is not sufficient t ...
From Fisher v. Halliburton, 2009 U.S. Dist. LEXIS 117427 (S.D. Tex. Dec. 17, 2009): [P]laintiffs can only bring RICO claims for concrete, definite, and tangible losses. Price v. Pinnacle Brands, Inc., 138 F.3d 602, 607 (5th Cir. 1998) (“Injury to…
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Test for Obtaining Deposition of Trial Counsel — Sixth Circuit (and Eighth)

From No. Am. Rescue Prods., Inc. v. Bound Tree Medical, LLC, 2009 U.S. Dist. LEXIS 118316 (S.D. Ohio Nov. 19, 2009): [A] deposition of a trial attorney, for obvious reasons, is generally discouraged and may be ordered only under limited circumstances. In the Sixth Circuit, the party seeking the deposition must establish that (1) no other ...
From No. Am. Rescue Prods., Inc. v. Bound Tree Medical, LLC, 2009 U.S. Dist. LEXIS 118316 (S.D. Ohio Nov. 19, 2009): [A] deposition of a trial attorney, for obvious reasons, is generally discouraged and may be ordered only under limited…
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Pendent Personal Jurisdiction: Generally, Extending Personal Jurisdiction to State Law Claims Arising Out of the Same Nucleus of Operative Facts as a Federal Claim over which Personal Jurisdiction Is Statutorily Conferred

From Conwill v. Greenberg Traurig, LLP, 2009 U.S. Dist. LEXIS 119214 (E.D. La. Dec. 22, 2009): Conwill urges that "once personal jurisdiction is established over Mr. Gordon for the purposes of the RICO claim, then this Court has personal jurisdiction over him for the purposes of the other claims in the Complaint that arise out of the same ...
From Conwill v. Greenberg Traurig, LLP, 2009 U.S. Dist. LEXIS 119214 (E.D. La. Dec. 22, 2009): Conwill urges that “once personal jurisdiction is established over Mr. Gordon for the purposes of the RICO claim, then this Court has personal jurisdiction…
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Purchasers of Derivative Securities May Bring a 10(b)(5) Against the Issuer of the Underlying, Bundled Securities — Issue of First Impression — Link to “The Subprime Primer”

From Tolin v. AMBAC Fin. Group, 2009 U.S. Dist. LEXIS 119986 (S.D.N.Y. Dec. 23, 2009): This action raises what appears to be a question of first impression in this Circuit: does the Second Circuit's decision in Ontario Pub. Serv. Employees Union Pension Trust Fund v. Nortel Networks Corp., 369 F.3d 27 (2d Cir. 2004) (hereinafter "Nortel" ...
From Tolin v. AMBAC Fin. Group, 2009 U.S. Dist. LEXIS 119986 (S.D.N.Y. Dec. 23, 2009): This action raises what appears to be a question of first impression in this Circuit: does the Second Circuit’s decision in Ontario Pub. Serv. Employees…
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Materials Appropriately Considered on 12(b)(2) Motion to Dismiss for Lack of Jurisdiction — Effect on Construing Complaint in Plaintiff’s Favor

From Conwill v. Greenberg Traurig, LLP, 2009 U.S. Dist. LEXIS 119214 (E.D. La. Dec. 22, 2009): Before the Court is a motion to dismiss pursuant to 12(b)(2) of the Federal Rules of Civil Procedure***. The plaintiff bears the burden of establishing the Court's jurisdiction over a defendant, by making a prima facie case, if the Court ...
From Conwill v. Greenberg Traurig, LLP, 2009 U.S. Dist. LEXIS 119214 (E.D. La. Dec. 22, 2009): Before the Court is a motion to dismiss pursuant to 12(b)(2) of the Federal Rules of Civil Procedure***. The plaintiff bears the burden of…
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Rule 12(f) Motions to Strike and 12(e) Motions for a More Definite Statement — Standards

From Kauinui v. Citibank (South Dakota), N.A., 2009 U.S. Dist. LEXIS 100765 (D. Hawaii Oct. 28, 2009): Pursuant to Fed. R. Civ. P. 12(f), the Court may strike "from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). This includes striking parts of the prayer for ...
From Kauinui v. Citibank (South Dakota), N.A., 2009 U.S. Dist. LEXIS 100765 (D. Hawaii Oct. 28, 2009): Pursuant to Fed. R. Civ. P. 12(f), the Court may strike “from any pleading any insufficient defense or any redundant, immaterial, impertinent, or…
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In Prosecution of Judge for Receiving Bribes, Expert Testimony on the Correctness of Judge’s Allegedly-Influenced Rulings Excluded

From U.S. v. Whitfield, 2009 U.S. App. LEXIS 27003 (5th Cir. Dec. 11, 2009): Defendants-appellants, attorney Paul Minor and former Mississippi state judges John Whitfield and Walter ("Wes") Teel, were charged with participating in two separate bribery schemes in which Minor arranged, guaranteed, and eventually paid off loans for Whitfiel ...
From U.S. v. Whitfield, 2009 U.S. App. LEXIS 27003 (5th Cir. Dec. 11, 2009): Defendants-appellants, attorney Paul Minor and former Mississippi state judges John Whitfield and Walter (“Wes”) Teel, were charged with participating in two separate bribery schemes in which…
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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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