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

Spoliation — Deeming Facts Admitted in Addition to Adverse Inference and Fees

Chevron USA, Inc. v. M & M Petroleum Servs., Inc., 2009 U.S. Dist. LEXIS 68829 (C.D. Cal. Aug. 6, 2009): (a) The Court deems established —- and draws an inference adverse to M&M and concludes that the documents spoliated by M&M support Chevron's allegations of the following facts: (i) the Secret Books (Ex 90; 111-113 and 133) are ...
Chevron USA, Inc. v. M & M Petroleum Servs., Inc., 2009 U.S. Dist. LEXIS 68829 (C.D. Cal. Aug. 6, 2009): (a) The Court deems established —- and draws an inference adverse to M&M and concludes that the documents spoliated by…
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Sanctions — The Relationship Between 35 U.S.C. § 285 and the Inherent Power of the Court

From Kellogg v. Nike, Inc., 2010 U.S. Dist. LEXIS 8576 (D. Neb. Jan. 20, 2010): The purpose of 35 U.S.C. § 285 is to compensate the prevailing party for its monetary outlays in the prosecution or defense of the suit and those fees include the "sums that the prevailing party incurs in the preparation for and performance of legal services ...
From Kellogg v. Nike, Inc., 2010 U.S. Dist. LEXIS 8576 (D. Neb. Jan. 20, 2010): The purpose of 35 U.S.C. § 285 is to compensate the prevailing party for its monetary outlays in the prosecution or defense of the suit…
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RICO Statute of Limitations — Notice of Injury vs. Fraudulent Concealment — Disregard of Prior Order as Tolling Statute

From Pecot v. S.F. Deputy Sheriff’s Ass’n, 2009 U.S. Dist. LEXIS 21710 (N.D. Cal. Mar. 6, 2009): Civil RICO claims are subject to a four-year statute of limitations. Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 156 (1987). "The limitations period for civil RICO actions begins to run when a plaintiff know ...
From Pecot v. S.F. Deputy Sheriff’s Ass’n, 2009 U.S. Dist. LEXIS 21710 (N.D. Cal. Mar. 6, 2009): Civil RICO claims are subject to a four-year statute of limitations. Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 156…
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Court of Appeals Declines, and May Be Unable, to Rule on a Rule 59 Motion for a New Trial Based on the Weight of the Evidence When the Trial Court Hasn’t — “Clear” Abuse of Discretion

From Kode v. Carlson, 2010 U.S. App. LEXIS 3936 (9th Cir. Feb. 25, 2010): Whether we may rule on the merits of a Rule 59 motion for a new trial based on the weight of the evidence where the district court has not yet done so because it found the motion waived appears to present an issue of first impression in this court. Assuming, withou ...
From Kode v. Carlson, 2010 U.S. App. LEXIS 3936 (9th Cir. Feb. 25, 2010): Whether we may rule on the merits of a Rule 59 motion for a new trial based on the weight of the evidence where the district…
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Party Accepting a Rule 68 Offer of Judgment Is a Prevailing Party for Purposes of Recovering Statutory Attorneys’ Fees

From Walsh v. Boston Univ., 661 F. Supp. 2d 91 (D. Mass. 2009): The motion raises an issue of first impression in this circuit regarding whether plaintiff, who obtained a Rule 68, Fed. R. Civ. P. ("Rule 68"), judgment in the amount of $15,000 in his favor, is a "prevailing party" within the meaning of the American Disabilities Act, 42 U.S. ...
From Walsh v. Boston Univ., 661 F. Supp. 2d 91 (D. Mass. 2009): The motion raises an issue of first impression in this circuit regarding whether plaintiff, who obtained a Rule 68, Fed. R. Civ. P. (“Rule 68”), judgment in…
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No Tort Cause of Action for First-Part Spoliation in Vermont — Erie Prognosis

From Naylor v. Rotech Healthcare, Inc., 2009 U.S. Dist. LEXIS 120142 (D. Vt. Dec. 23, 2009): The main issue is whether or not spoliation of evidence constitutes an independent cause of action. Federal courts look to state law to define the substantive claims in diversity cases such as this one. *** States are split on whether spoliation ...
From Naylor v. Rotech Healthcare, Inc., 2009 U.S. Dist. LEXIS 120142 (D. Vt. Dec. 23, 2009): The main issue is whether or not spoliation of evidence constitutes an independent cause of action. Federal courts look to state law to define…
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Extraterritorial Application of U.S. Securities Laws — Conduct Test in Second Circuit — Rule 12(b)(1) Standards

From Terra Secs. v. Citigroup, Inc., 2010 U.S. Dist. LEXIS 14378 (S.D.N.Y. Feb. 16, 2010): The inquiry on a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) concerns whether the district court has the statutory or constitutional power to adjudicate the case. See Makarova, 201 F.3d at 113. "[J]urisdict ...
From Terra Secs. v. Citigroup, Inc., 2010 U.S. Dist. LEXIS 14378 (S.D.N.Y. Feb. 16, 2010): The inquiry on a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) concerns whether the district court has the statutory or…
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Clergy-Communicant Privilege Not Waived by Presence of Third Parties

From WebXchange Inc. v. Dell Inc., 2010 U.S. Dist. LEXIS 12954 (D. Del. Feb. 16, 2010): The clergy-communicant privilege "protect[s] communications made (1) to a clergyperson (2) in his or her spiritual capacity (3) with a reasonable expectation of confidentiality." In re Grand Jury Investigation, 918 F.2d 374, 384 (1990). "The p ...
From WebXchange Inc. v. Dell Inc., 2010 U.S. Dist. LEXIS 12954 (D. Del. Feb. 16, 2010): The clergy-communicant privilege “protect[s] communications made (1) to a clergyperson (2) in his or her spiritual capacity (3) with a reasonable expectation of confidentiality.”…
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Summaries & Fed.R.Evid. 1006 — As Long as Underlying Documents Are Made Available to Opponent, Database Containing Them Need Not Be

From United States v. Lewis, 2010 U.S. App. LEXIS 2897 (10th Cir. Feb. 12, 2010): Using the bank records, the government created a computer database detailing the activity in some 170 accounts. The database of checks, wire transfers, deposits, and the like contained over 15,500 items. By making queries of the database, government agents ...
From United States v. Lewis, 2010 U.S. App. LEXIS 2897 (10th Cir. Feb. 12, 2010): Using the bank records, the government created a computer database detailing the activity in some 170 accounts. The database of checks, wire transfers, deposits, and…
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Witness’s Review of Privileged Notes of Conversations Before Deposition Waived Privilege — Production Ordered Under Fed.R.Evid. 612(2)

From Thomas v. Euro RSCG Life, 2010 U.S. Dist. LEXIS 14305 (S.D.N.Y. Feb. 18, 2010): At plaintiff's deposition on January 20, 2010, plaintiff testified that she had looked at notes in preparation for her deposition that recounted the dates and substance of conversations plaintiff had had with former in-house counsel for defendant Euro RSC ...
From Thomas v. Euro RSCG Life, 2010 U.S. Dist. LEXIS 14305 (S.D.N.Y. Feb. 18, 2010): At plaintiff’s deposition on January 20, 2010, plaintiff testified that she had looked at notes in preparation for her deposition that recounted the dates and…
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Recent Posts

Rule 37 Discovery Sanctions: Ninth Circuit’s Five-Factor Test for Gauging Appropriateness of Dismissal — The Limited Utility of Rule 12(f) Motions to Strike

RICO: Employer Suffered Harm to Business or Propoerty When Kickbacks Paid to Employees in Real Estate Transactions Done for Employer — Expert Testimony Sufficient to Prove Harm — Proof That Employer Paid Above-Market Prices Not Essential — Non-Disclosure of Certain Damages in Initial Disclosures Cured by Expert Report, Which Also Rendered Initial Non-Disclosure Harmless

Spoliation: Dismissal Under Rule 37(e)(2) and Monetary Sanctions Under Rule 37(e)(1), Implicitly Reading The “Or” Between 37(e)(1) and 37(e)(2) As Conjunctive, Not Disjunctive — Clear Error Standard of Review for District Court’s Intent (= Bad Faith) Finding under 37(e)(2)(C) — Additional Monetary Sanctions Imposed on Claimants under 28 U.S.C. § 1927 and Rule 37(a)(5) — No Right to Jury Determination of Intent under Rule 37(e)(2) — “Substantially Justified” in Rule 37(a)(5) Has Same Meaning As In Equal Access to Justice Act and Thus Rule 11 — Meaning of “Unreasonable and Vexatious” in 7th Circuit

Inherent Power Sanction of Dismissal — Preponderance of the Evidence Burden of Proof, Not Clear and Convincing Evidence (7th Circuit)

§ 1927 Sanctions — Must A Lawyer Who Unreasonably and Vexatiously Multiplies Federal Court Proceedings Be Acting “As An Attorney” When Committing the Misconduct To Be Subject to Sanction under § 1927?

Rule 37 Sanctions — Unfamiliarity With Litigation Process Does Not Excuse Intentional Disregard of Court Order — Also Affirming Rule 26(g) Sanctions on Clients and Counsel for False Representations That All Responsive Documents Had Been Produced

Supreme Court: Notice of Appeal Filed After The Original Deadline But Before Reopening by The District Court Is Timely — It Relates Forward to The Date of The Order Making The Appeal Possible — Second Notice of Appeal After Reopening Unnecessary

Rule 37 Default Judgment: Second Circuit’s Four-Factor Test for Imposing Defaults and Three-Factor Test for Lifting Them

Rule 37 Default Judgment — Tenth Circuit Multifactor Test Is Not Exhaustive But a Non-Exclusive List of “Sometimes-Helpful Criteria Or Guide Posts”— Appeal from Preliminary Injunction Mooted by Entry of Permanent Injunction — Difficulty in Collecting Damages Award May Equal Irreparable Injury — A Monetary Award For Past Conduct Does Not Preclude A Permanent Injunction Against Similar Wrongful Conduct Likely To Occur In The Future

RICO: Cover-Up Within Limitations Period of Untimely RICO Violation “Was Merely A Continuation” Of The Original Injury And Could Not Be Used “As A ‘Bootstrap’ To Salvage [The] Time-Barred Claims–Declining to Apply Pinkerton Doctrine to Civil RICO Claims

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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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