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

Sanctions — IRS Ordered to Pay $1 Million in Attorneys’ Fees for Fraud on the Tax Court to Counsel Who Agreed to Appear Pro Bono or for Only Those Amounts Awarded by the Court — Interest Awarded

When it is not just the Government but the Internal Revenue Service that is sanctioned for more than one million dollars, one can’t help but wonder if life gets better than this. From Dixon v. Comm’r of Internal Revenue, 2009 U.S. Tax Ct. LEXIS 5 (U.S. Tax Court Mar. 23, 2009): These cases are part of the Kersting tax shelter litigat ...
When it is not just the Government but the Internal Revenue Service that is sanctioned for more than one million dollars, one can’t help but wonder if life gets better than this. From Dixon v. Comm’r of Internal Revenue, 2009…
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No Interlocutory Appeal of Privilege Decisions via Collateral Order Doctrine

Resolving a Circuit split, the Supreme Court, in Mohawk Indus. v. Carpenter, 2009 U.S. LEXIS 8942 (Dec. 8, 2009), declined to extend the collateral order doctrine to permit interlocutory appeals of district court decisions overruling assertions of attorney-client privilege. The Court pointed to “rulemaking, ‘not expansion by court decision,’ as the pre ...
Resolving a Circuit split, the Supreme Court, in Mohawk Indus. v. Carpenter, 2009 U.S. LEXIS 8942 (Dec. 8, 2009), declined to extend the collateral order doctrine to permit interlocutory appeals of district court decisions overruling assertions of attorney-client privilege. The…
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Lawyer Providing Conventional Legal Advice Does Not Violate RICO — Non-Moving Defendants Standing in the Same Posture as Moving Defendants May Be Dismissed on Court’s Initiative

From Melton v. Blankenship, 2009 U.S. App. LEXIS 686 (6th Cir. Jan 13, 2009): Plaintiffs filed a civil RICO claim against defendants, arguing that defendants conspired against them in a previous suit by maliciously filing a counterclaim that lacked a factual basis. Because we conclude that the remedy for this alleged injury lies in state ...
From Melton v. Blankenship, 2009 U.S. App. LEXIS 686 (6th Cir. Jan 13, 2009): Plaintiffs filed a civil RICO claim against defendants, arguing that defendants conspired against them in a previous suit by maliciously filing a counterclaim that lacked a…
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Mere Inability to Locate Cell Phone Photos Does Not Necessarily Constitute Spoliation

From McClain v. Norfolk So. Rwy. Co., 2009 U.S. Dist. LEXIS 22474 (N.D. Ohio Mar. 16, 2009): Through counsel, plaintiff volunteered during his deposition that he took pictures of the catwalk. Now he can't retrieve them from his cell phone. He doesn't know what happened. According to the plaintiff's opposition to defendant's motio ...
From McClain v. Norfolk So. Rwy. Co., 2009 U.S. Dist. LEXIS 22474 (N.D. Ohio Mar. 16, 2009): Through counsel, plaintiff volunteered during his deposition that he took pictures of the catwalk. Now he can’t retrieve them from his cell phone.…
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Spoliation — Two Tests Used to Determine Appropriate Sanction

From One Beacon Ins. Co. v. Elec. Power Eng’g (Scotland), Ltd., 2009 U.S. Dist. LEXIS 111048 (E.D. La. Nov. 24, 2009): The spoliation of evidence doctrine concerns the intentional destruction of evidence. See Menges v. Cliffs Drilling Co. , 2000 U.S. Dist. LEXIS 8478, 2000 WL 765082 at *1 (E.D. La.) (Vance, J.) (citing Voduse ...
From One Beacon Ins. Co. v. Elec. Power Eng’g (Scotland), Ltd., 2009 U.S. Dist. LEXIS 111048 (E.D. La. Nov. 24, 2009): The spoliation of evidence doctrine concerns the intentional destruction of evidence. See Menges v. Cliffs Drilling Co. , 2000…
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Sanctions — Failing to Advise Client of Meritlessness of Claim Warrants § 1927 Sanctions — Sixth Circuit § 1927 Standards

There is a split in the Circuits on the issue whether subjective bad faith is a prerequisite to imposition of sanctions under 28 U.S.C. § 1927. See Joseph, Sanctions: The Federal Law of Litigation Abuse § 23(B)(1) (4th ed. 2008). From Royal Oak Entm’t, LLC v. City of Royal Oak, 2009 U.S. App. LEXIS 5439 (6th Cir. Mar. 17, 2009):
There is a split in the Circuits on the issue whether subjective bad faith is a prerequisite to imposition of sanctions under 28 U.S.C. § 1927. See Joseph, Sanctions: The Federal Law of Litigation Abuse § 23(B)(1) (4th ed. 2008).…
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Common Interest/Joint Defense Privilege — Legal vs. Commercial Interests — Commercial Interest Insufficient to Afford Common Interest Protection Suffices to Avoid Work Product Waiver

From Ayers Oil Co. v. Am. Bus. Brokers, Inc., 2009 U.S. Dist. LEXIS 111928 (E.D. Mo. Dec. 2, 2009): This action is before the court on the motion of plaintiff Ayers Oil Co. (Ayers) to compel defendant American Business Brokers, Inc. (ABB) to produce an email communication from ABB corporate president Terry Monroe to non-party Bill Fecht.. ...
From Ayers Oil Co. v. Am. Bus. Brokers, Inc., 2009 U.S. Dist. LEXIS 111928 (E.D. Mo. Dec. 2, 2009): This action is before the court on the motion of plaintiff Ayers Oil Co. (Ayers) to compel defendant American Business Brokers,…
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Evidence of Earlier Preliminary Injunction Ruling and Other Litigations Excluded from Jury Trial Under 403 — Prior Arbitration Award Excluded as Hearsay — Brief of Party in Other Litigation Excluded as Hearsay

From Park West Radiology v. CareCore Nat’l LLC, 2009 U.S. Dist. LEXIS 110282 (S.D.N.Y. Nov. 19, 2009): [Preliminary Injunction Ruling.] Plaintiffs move to exclude any references to the Court's Preliminary Injunction Ruling as irrelevant and prejudicial pursuant to FRE 402 and 403. Defendants seek to introduce evidence ...
From Park West Radiology v. CareCore Nat’l LLC, 2009 U.S. Dist. LEXIS 110282 (S.D.N.Y. Nov. 19, 2009): [Preliminary Injunction Ruling.] Plaintiffs move to exclude any references to the Court’s Preliminary Injunction Ruling as irrelevant and prejudicial pursuant to FRE 402…
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For RICO Statute of Limitations Accrual Purposes, Date of Injury = Date of Investment

From Daly v. Pearl Spirits, Inc., 2009 U.S. Dist. LEXIS 108188 (N.D. Cal. Nov. 19, 2009): In Volk v. Davidson, 816 F.2d 1406 (9th Cir. 1987), the Ninth Circuit held that receiving written disclosure of the possibility of injury was sufficient to put a RICO plaintiff on constructive notice of his injury.... There, the plaintiffs had ...
From Daly v. Pearl Spirits, Inc., 2009 U.S. Dist. LEXIS 108188 (N.D. Cal. Nov. 19, 2009): In Volk v. Davidson, 816 F.2d 1406 (9th Cir. 1987), the Ninth Circuit held that receiving written disclosure of the possibility of injury was…
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Fiduciary Exception to Attorney-Client Privilege — ERISA

From Comrie v. IPSCO, Inc., 2009 U.S. Dist. LEXIS 111965 (N.D. Ill. Nov. 30, 2009): Plaintiff ... contends that the document-even if privileged and not waived-falls within the "fiduciary exception" and, therefore, is discoverable. This exception applies where the beneficiary requests from "a fiduciary of an ERISA plan . . . 'any communic ...
From Comrie v. IPSCO, Inc., 2009 U.S. Dist. LEXIS 111965 (N.D. Ill. Nov. 30, 2009): Plaintiff … contends that the document-even if privileged and not waived-falls within the “fiduciary exception” and, therefore, is discoverable. This exception applies where the beneficiary…
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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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