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

Supplemental Jurisdiction — When to Retain or Relinquish Jurisdiction over State Law Claims after Federal Claims Dismissed

From Graham v. Barriger, 2009 U.S. Dist. LEXIS 107967 (S.D.N.Y. Nov. 17, 2009) (securities laws claims dismissed; breach of contract and common law fraud claims remained): [In] Valencia ex rel. Franco v. Lee, 316 F.3d 299, 305 (2d Cir. 2003), ... the Second Circuit held that the district court abused its discretion by exercisin ...
From Graham v. Barriger, 2009 U.S. Dist. LEXIS 107967 (S.D.N.Y. Nov. 17, 2009) (securities laws claims dismissed; breach of contract and common law fraud claims remained): [In] Valencia ex rel. Franco v. Lee, 316 F.3d 299, 305 (2d Cir. 2003),…
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RICO — Nationwide Jurisdiction — National vs. Local Contacts — Circuit Split

From Unencumbered Assets Trust v. JP Morgan Chase Bank, 2009 U.S. Dist. LEXIS 44174 (S.D. Ohio May 11, 2009): The UAT contends that when a federal RICO claim is asserted, courts evaluate personal jurisdiction based on nationwide contacts. The RICO statute provides for nationwide service of process, 18 U.S.C. § 1965, and some courts ha ...
From Unencumbered Assets Trust v. JP Morgan Chase Bank, 2009 U.S. Dist. LEXIS 44174 (S.D. Ohio May 11, 2009): The UAT contends that when a federal RICO claim is asserted, courts evaluate personal jurisdiction based on nationwide contacts. The RICO…
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Expert Report Consisting of Nothing More Than Conclusory Statements Supporting a Party’s Position Rejected — “Bad Faith” Insurance Expert Testimony Inadmissible (Caselaw Split)

From Imperial Trading Co. v. Travelers Prop. Cas. Co. of Am., 2009 U.S. Dist. LEXIS 105927 (E.D. La. July 31, 2009): [D]efendant challenges Mr. Knowe's testimony on the grounds that plaintiffs seek to introduce him as a "bad faith expert," which a number courts have excluded. This Court, in Marketfare Annunciation, LLC v. United Fire ...
From Imperial Trading Co. v. Travelers Prop. Cas. Co. of Am., 2009 U.S. Dist. LEXIS 105927 (E.D. La. July 31, 2009): [D]efendant challenges Mr. Knowe’s testimony on the grounds that plaintiffs seek to introduce him as a “bad faith expert,”…
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Judicial Estoppel Inappropriate Where Party Changes Position Due to Intervening Change in Law

From Longaberger Co. v. Kolt, 2009 U.S. App. LEXIS 25047 (6th Cir. Nov. 16, 2009): In its motion for injunctive relief, Longaberger stated that "if Kolt disburses or otherwise commingles or uses the settlement funds which he holds in constructive trust for the benefit of the Plan, the Plan will forever lose the ability to recover its prop ...
From Longaberger Co. v. Kolt, 2009 U.S. App. LEXIS 25047 (6th Cir. Nov. 16, 2009): In its motion for injunctive relief, Longaberger stated that “if Kolt disburses or otherwise commingles or uses the settlement funds which he holds in constructive…
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Rule 45 — Party May Object to Subpoena Served on Third Party Seeking Documents to Which Party Has Standing to Invoke Privilege or Personal Interest

From Iron Workers’ Local 25 Pension Fund v. Watson Wyatt & Co., 2009 U.S. Dist. LEXIS 18335 (E.D. Mich. Mar. 10, 2009): Although a party to a lawsuit typically has no standing to object to a subpoena directed at a non-party, standing exists when the party claims a privilege or other personal interest in regard to the requested docum ...
From Iron Workers’ Local 25 Pension Fund v. Watson Wyatt & Co., 2009 U.S. Dist. LEXIS 18335 (E.D. Mich. Mar. 10, 2009): Although a party to a lawsuit typically has no standing to object to a subpoena directed at a…
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Absence of Any Methodology by Expert in “Metaphorical Associations” Warrants Exclusion under Daubert and Rule 702 — Expert Unnecessary Where Jury Is Capable of Comprehending Facts and Drawing Conclusions

From Flagstar Bank, FSB v. Freestar Bank, N.A., 2009 U.S. Dist. LEXIS 106106 (C.D. Ill. Nov. 13, 2009), a trademark infringement action: Dr. Edward Lee Lamoureux holds a Ph.D. from the University of Oregon in Rhetoric and Communication with an emphasis on conversation analysis, rhetoric, qualitative research methods, general speech, and i ...
From Flagstar Bank, FSB v. Freestar Bank, N.A., 2009 U.S. Dist. LEXIS 106106 (C.D. Ill. Nov. 13, 2009), a trademark infringement action: Dr. Edward Lee Lamoureux holds a Ph.D. from the University of Oregon in Rhetoric and Communication with an…
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No Fraud If Recipient of Falsehoods Was Not Deceived — Fraud Action May Not Be Based on Misrepresentations of Law

Calif. Pharm. Mgmt., LLC v. Redwood & Cas. Ins. Co., 2009 U.S. Dist. LEXIS 105770 (C.D. Cal. Oct. 26, 2009) (mail fraud-based RICO action; also upholding assignee’s standing to assert RICO claims without discussion): In dismissing the SAC, this Court identified two deficiencies with Plaintiff's RICO claim. First, the SAC's allegations could ...
Calif. Pharm. Mgmt., LLC v. Redwood & Cas. Ins. Co., 2009 U.S. Dist. LEXIS 105770 (C.D. Cal. Oct. 26, 2009) (mail fraud-based RICO action; also upholding assignee’s standing to assert RICO claims without discussion): In dismissing the SAC, this Court…
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RICO Claim Barred by Res Judicata Because It Was Not Asserted in Prior State Court Action Arising Out of the Same Nucleus of Operative Facts and State Court Did Not Split the Cause of Action

From Crooked Creek Properties, Inc. v. Ensley, 2009 U.S. Dist. LEXIS 100907 (M.D. Ala. Oct. 28, 2009): [A]lthough not all of the causes of action are the same in the present action and the Autauga County Suit, res judicata's same-cause-of-action element will be satisfied if the claims in the former and present actions arise out ...
From Crooked Creek Properties, Inc. v. Ensley, 2009 U.S. Dist. LEXIS 100907 (M.D. Ala. Oct. 28, 2009): [A]lthough not all of the causes of action are the same in the present action and the Autauga County Suit, res judicata’s same-cause-of-action…
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Constitutional Necessity (Ashwander) vs. Constitutional Avoidance

From United States v. Whitted, 541 F.3d 480 (3d Cir. 2008) (Chagares, J., concurring): "It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case." Burton v. United States, 196 U.S. 283, 295, 25 S. Ct. 243, 49 L. Ed. 482 (1905). Such restraint is well-est ...
From United States v. Whitted, 541 F.3d 480 (3d Cir. 2008) (Chagares, J., concurring): “It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.” Burton v.…
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The “Follow-the-Settlements” or “Follow-the-Fortunes” Doctrine in Reinsurance

From Global Reins. Corp. of Am. v. Argonaut Ins. Co., 634 F. Supp. 2d 342 (S.D.N.Y. 2009): The "follow-the-settlements" (or "follow-the-fortunes") doctrine "binds a reinsurer to accept the cedent's good faith decisions on all things concerning the underlying insurance terms and claims against the underlying insured: coverage, tactics, law ...
From Global Reins. Corp. of Am. v. Argonaut Ins. Co., 634 F. Supp. 2d 342 (S.D.N.Y. 2009): The “follow-the-settlements” (or “follow-the-fortunes”) doctrine “binds a reinsurer to accept the cedent’s good faith decisions on all things concerning the underlying insurance terms…
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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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