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 “Facially Conclusive” Exception to Younger Abstention

From HSBC Bank USA, N.A. v. N.Y. City Comm’n on Human Rights, 2009 U.S. Dist. LEXIS 110112 (S.D.N.Y. Nov. 25, 2009): On October 21, 2009, Plaintiffs filed their complaint against the Commission ("Complaint") seeking a declaratory judgment that §§ 8-107(10) and (11) of the [New York City Administrative] Code 1 are preempted by 12 U.S. ...
From HSBC Bank USA, N.A. v. N.Y. City Comm’n on Human Rights, 2009 U.S. Dist. LEXIS 110112 (S.D.N.Y. Nov. 25, 2009): On October 21, 2009, Plaintiffs filed their complaint against the Commission (“Complaint”) seeking a declaratory judgment that §§ 8-107(10)…
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Printout from Internet Archive Sufficiently Authenticated by Affidavit from Manager Explaining How Internet Archive Saves Old Web Pages

From SP Techs., LLC v. Garmin Int’l, Inc., 2009 U.S. Dist. LEXIS 110536 (N.D. Ill. Sept. 30, 2009) (on summary judgment motion; IP case): Plaintiff has moved to strike Defendant's Exhibit D, which consists of a print-out of a website showing the twenty lines of code that are in dispute. The website is maintained by the Internet Archive, ...
From SP Techs., LLC v. Garmin Int’l, Inc., 2009 U.S. Dist. LEXIS 110536 (N.D. Ill. Sept. 30, 2009) (on summary judgment motion; IP case): Plaintiff has moved to strike Defendant’s Exhibit D, which consists of a print-out of a website…
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Sanctions — Pro Se Inmate’s Letter to Court Laced with Obscenities and Charges of Racism Directed at Judge and Court Reporter Sent with “Improper Purpose” of Harassment, within Rule 11(b)(1)

From Kelly v. Null, 2009 U.S. Dist. LEXIS 109356 (S.D. Ill. Nov. 23, 2009): [T]his is not a situation in which the Court is threatening to impose sanctions on Kelly for making a layperson's mistake of law; rather, as is aptly demonstrated by even a cursory glance at Kelly's October 19 letter, Kelly's abuse of the judicial process is gross ...
From Kelly v. Null, 2009 U.S. Dist. LEXIS 109356 (S.D. Ill. Nov. 23, 2009): [T]his is not a situation in which the Court is threatening to impose sanctions on Kelly for making a layperson’s mistake of law; rather, as is…
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December 1, 2009: Immediate Changes to Federal Practice

Download associated file: 1 Dec 2009 Amendments to Federal Rules of Civil Procedure.pdf  Federal practice changes substantially on December 1, 2009. Principal changes to the Federal Rules of Civil Procedure effective 12/1/09: 1. A complaint ...
Download associated file: 1 Dec 2009 Amendments to Federal Rules of Civil Procedure.pdf  Federal practice changes substantially on December 1, 2009. Principal changes to the Federal Rules of Civil Procedure effective 12/1/09: 1. A complaint can be amended as…
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Intervention — Piggyback Standing — Intervenor Cannot Establish Piggyback Standing Where the Court Has Retained Jurisdiction to Enforce Its Order but There Is No Pending Dispute between the Parties

From City of Colo. Springs v. Climax Molybdenum Co., 2009 U.S. App. LEXIS 25854 (10th Cir. Nov. 25, 2009): In this water law litigation, Climax Molybdenum Company ("Climax") appeals the district court's denial of its motion to intervene in a set of consolidated cases over which the district court retained jurisdiction after first deciding ...
From City of Colo. Springs v. Climax Molybdenum Co., 2009 U.S. App. LEXIS 25854 (10th Cir. Nov. 25, 2009): In this water law litigation, Climax Molybdenum Company (“Climax”) appeals the district court’s denial of its motion to intervene in a…
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RICO — Proximate Cause Lacking Where Injury Results Not from Racketeering Acts but from Exposure or Disclosure of, or Government Crackdown on, Racketeering Activity

From McBrearty v. Vanguard Group, Inc., 2009 U.S. App. LEXIS 25675 (2d Cir. Nov. 20, 2009): To state a civil RICO claim, plaintiffs must show that they were injured "by reason of" the alleged racketeering activity, 18 U.S.C. § 1964(c), that is, that the defendant's RICO violation proximately caused plaintiffs' injuries.... In the RICO co ...
From McBrearty v. Vanguard Group, Inc., 2009 U.S. App. LEXIS 25675 (2d Cir. Nov. 20, 2009): To state a civil RICO claim, plaintiffs must show that they were injured “by reason of” the alleged racketeering activity, 18 U.S.C. § 1964(c),…
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Failure to Assert Privilege in Initial Responses to Requests for Production ≠ Per Se Waiver

From Coalition for a Sustainable Delta v. Koch, 2009 U.S. Dist. LEXIS 100728 (E.D. Cal. Oct. 15, 2009): Plaintiffs complain (1) that Defendants failure to assert the deliberative process privilege in their initial responses to certain RFPs [Rule 34 requests for production] constitutes per se waiver, and (2) that Defendants' subseq ...
From Coalition for a Sustainable Delta v. Koch, 2009 U.S. Dist. LEXIS 100728 (E.D. Cal. Oct. 15, 2009): Plaintiffs complain (1) that Defendants failure to assert the deliberative process privilege in their initial responses to certain RFPs [Rule 34 requests…
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Non-FAA Arbitration — Order Denying Stay of Litigation in Case Outside Federal Arbitration Act Is Not Immediately Appealable — Circuit Split

From Sherwood v. Marquette Transp. Co., 2009 U.S. App. LEXIS 25581 (7th Cir. 2009): This leads Bluegrass Marine to invoke the collateral-order doctrine. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949). The last decision treating the denial of a stay as an appealable collateral or ...
From Sherwood v. Marquette Transp. Co., 2009 U.S. App. LEXIS 25581 (7th Cir. 2009): This leads Bluegrass Marine to invoke the collateral-order doctrine. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed.…
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Misdirected Email Sent to Person Outside the Privilege Due to Autofill Addressing Function Does Not Effect Waiver under Rule 502(b)

From Multiquip Inc. v. Water Mgmt. Sys. LLC, 2009 U.S. Dist. LEXIS 109148 (D. Idaho Nov. 23, 2009): On March 31, 2009, Defendants' counsel, Rick Klingbeil, wrote an email to his client, Defendant David Muhs.... On April 8, 2009, Mr. Muhs responded to Mr. Klingbeil via email, also directing his correspondence (with the underlying March 31, ...
From Multiquip Inc. v. Water Mgmt. Sys. LLC, 2009 U.S. Dist. LEXIS 109148 (D. Idaho Nov. 23, 2009): On March 31, 2009, Defendants’ counsel, Rick Klingbeil, wrote an email to his client, Defendant David Muhs…. On April 8, 2009, Mr.…
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Class Action Settlement Agreement May Establish Cy Pres Fund for Charitable Purposes — Issue of First Impression for 1st Circuit

From In re Pharma. Indus. Average Wholesale Price Litig. 2009 U.S. App. LEXIS 25536 (1st Cir. Nov. 19, 2009): This circuit has not had occasion to consider whether settlement agreements in class actions may establish cy pres funds. Other circuits have approved agreements that provide for cy pres funds, particularly those negotiated at ar ...
From In re Pharma. Indus. Average Wholesale Price Litig. 2009 U.S. App. LEXIS 25536 (1st Cir. Nov. 19, 2009): This circuit has not had occasion to consider whether settlement agreements in class actions may establish cy pres funds. Other circuits…
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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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