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

In Diversity Action, Federal Court Applies Federal Law in Determining Enforceability of Forum Selection Clause — Circuit Split

From Wong v. Partygaming Ltd., 2009 U.S. App. LEXIS 27914; 2009 (6th Cir. Dec. 21, 2009): To support its dismissal for forum non conveniens, the district court cited to the Gibraltar forum selection clause. Thus, as a threshold matter, we must determine whether the clause should be enforced. We review the enforceability of a forum select ...
From Wong v. Partygaming Ltd., 2009 U.S. App. LEXIS 27914; 2009 (6th Cir. Dec. 21, 2009): To support its dismissal for forum non conveniens, the district court cited to the Gibraltar forum selection clause. Thus, as a threshold matter, we…
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Sanctions for Improper Removal under 28 U.S.C. § 1447(c) Must be Imposed on Party, Not Counsel — First Impression in Courts of Appeals — District Court Caselaw Split

From MR Crescent City, LLC v. Draper, 2009 U.S. App. LEXIS 26585 (4th Cir. Dec. 7, 2009): This case presents a purely legal question: whether 28 U.S.C. § 1447(c) permits the imposition of legal fees on an attorney who erroneously removes a case from state to federal court. The district court held that it does not. We affirm. Th ...
From MR Crescent City, LLC v. Draper, 2009 U.S. App. LEXIS 26585 (4th Cir. Dec. 7, 2009): This case presents a purely legal question: whether 28 U.S.C. § 1447(c) permits the imposition of legal fees on an attorney who erroneously…
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Damages Expert Testimony Relying Wholesale on Untested Opinions of Ultimate Party Client and Another Expert Excluded — Good Quotes

From Mooring Capital Fund, LLC v. Phoenix Central, Inc., 2009 U.S. Dist. LEXIS 117799 (W.D. Okla. Feb. 12, 2009): Dr. Horrell is offered as a damages expert. His expert report includes various tables purporting to summarize defendants' damages in three areas, each of which is essentially an element of a "lost profits" calculation: (1) ...
From Mooring Capital Fund, LLC v. Phoenix Central, Inc., 2009 U.S. Dist. LEXIS 117799 (W.D. Okla. Feb. 12, 2009): Dr. Horrell is offered as a damages expert. His expert report includes various tables purporting to summarize defendants’ damages in three…
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Post-Mohawk, Mandamus Available for Interlocutory Review of Denial of Privilege Assertion (Here, First Amendment Defense to Production of Internal Campaign Deliberations)

From Perry v. Schwarzenegger, 2009 U.S. App. LEXIS 27064 (9th Cir. Dec. 11, 2009): In the event that we do not have jurisdiction under the collateral order doctrine [in light of the Supreme Court’s decision in Mohawk Indus. v. Carpenter, 558 U.S. ___ (Dec. 8, 2009)], we would have authority to grant the remedy of mandamus. ...
From Perry v. Schwarzenegger, 2009 U.S. App. LEXIS 27064 (9th Cir. Dec. 11, 2009): In the event that we do not have jurisdiction under the collateral order doctrine [in light of the Supreme Court’s decision in Mohawk Indus. v. Carpenter,…
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No Injunctive Relief Available to Private Plaintiffs under RICO

From Minter v. Wells Fargo Bank, N.A., 2009 U.S. Dist. LEXIS 6230 (D. Md. Jan. 14, 2009): Unlike most of the issues raised by Defendants in their motion for summary judgment, whether injunctive relief is available under … civil RICO, is a purely legal question…. The only two courts of appeals to have addressed this issue directly, th ...
From Minter v. Wells Fargo Bank, N.A., 2009 U.S. Dist. LEXIS 6230 (D. Md. Jan. 14, 2009): Unlike most of the issues raised by Defendants in their motion for summary judgment, whether injunctive relief is available under … civil RICO,…
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Bulgaria, as an EU Nation, Is an Adequate Alternative Forum for Forum Non Conveniens Purposes, Despite Corruption Concerns, Limited Remedies, and Filing Fee of 4% of Total Claimed Damages

From Stroitelstvo Bulgaria Ltd. v. Bulgarian-Am. Enter. Fund, 2009 U.S. App. LEXIS 27257 (7th Cir. Dec. 14, 2009): A threshold requirement for any forum non conveniens dismissal is the existence of an alternative forum that is both "available" and "adequate." Kamel v. Hill-Rom Co., Inc., 108 F.3d 799, 802 (7th Cir. 1997). ...
From Stroitelstvo Bulgaria Ltd. v. Bulgarian-Am. Enter. Fund, 2009 U.S. App. LEXIS 27257 (7th Cir. Dec. 14, 2009): A threshold requirement for any forum non conveniens dismissal is the existence of an alternative forum that is both “available” and “adequate.”…
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Twombly and Iqbal Do Not Extend to Affirmative Defenses — Caselaw Split

From Charleswell v. Chase Manhattan Bank, N.A., 2009 U.S. Dist. LEXIS 116358 (D.V.I. Dec. 8, 2009): In their motion, plaintiffs assert that Lloyds's Affirmative Defenses Seven, Nine, and Fourteen are insufficiently plead under the standards set by two recent Supreme Court rulings — Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (20 ...
From Charleswell v. Chase Manhattan Bank, N.A., 2009 U.S. Dist. LEXIS 116358 (D.V.I. Dec. 8, 2009): In their motion, plaintiffs assert that Lloyds’s Affirmative Defenses Seven, Nine, and Fourteen are insufficiently plead under the standards set by two recent Supreme…
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Party Cannot Revive Moot Case by Making Its Outcome Determinative of Another, Live Dispute

In Chwarzynski v. Tebbens, 2009 U.S. App. LEXIS 27129 (7th Cir. Dec. 14, 2009), sanctions were entered against the client (Chwarzynski) and his lawyer (Maher) in the amount of $15,324.25. The client appealed the sanction; the lawyer did not. The plaintiff therefore proceeded to collect the full amount of the sanction from the insurance carrier for the lawy ...
In Chwarzynski v. Tebbens, 2009 U.S. App. LEXIS 27129 (7th Cir. Dec. 14, 2009), sanctions were entered against the client (Chwarzynski) and his lawyer (Maher) in the amount of $15,324.25. The client appealed the sanction; the lawyer did not. The…
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Third-Party Defendant May Remove Action, If at All, Only If the Third-Party Claim Is “Separate and Independent” from Main Cause of Action — Caselaw Split

From Bank of N.Y. v. Ukpe, 2009 U.S. Dist. LEXIS 115557 (D.N.J. Dec. 9, 2009): [W]hether a third-party defendant may remove an action has not been addressed by the United States Supreme Court or by the United States Court of Appeals for the Third Circuit. The majority of courts analyzing this issue have decided that a third-party ...
From Bank of N.Y. v. Ukpe, 2009 U.S. Dist. LEXIS 115557 (D.N.J. Dec. 9, 2009): [W]hether a third-party defendant may remove an action has not been addressed by the United States Supreme Court or by the United States Court of…
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Attorney-Client Privilege — Waiver by Use of Employer’s Email System — DOJ Attorney Does Not Waive Privilege by Communicating with Personal Attorney Using DOJ Email System

From Convertino v. U.S. Dep’t of Justice, 2009 U.S. Dist. LEXIS 115050 (D.D.C. Dec. 10, 2009): A party may waive either privilege by disclosing confidential information to a third-party, however, no waiver exists if "(1) the disclosure is inadvertent;" and "(2) the holder of the privilege or protection took reasonable steps to prevent ...
From Convertino v. U.S. Dep’t of Justice, 2009 U.S. Dist. LEXIS 115050 (D.D.C. Dec. 10, 2009): A party may waive either privilege by disclosing confidential information to a third-party, however, no waiver exists if “(1) the disclosure is inadvertent;” and…
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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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