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

Twombly and Iqbal Apply to All Four Elements of Civil RICO Claim — Nexus Must Exist Between Racketeering Activity and Enterprise

From Smartix International Corporation v. MasterCard Int’l LLC, 2009 U.S. App. LEXIS 23810 (2d Cir. Oct. 29, 2009): "[I]n order to establish a RICO violation under § 1962(c), a plaintiff . . . must allege and prove four elements: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." City of N.Y. v. ...
From Smartix International Corporation v. MasterCard Int’l LLC, 2009 U.S. App. LEXIS 23810 (2d Cir. Oct. 29, 2009): “[I]n order to establish a RICO violation under § 1962(c), a plaintiff . . . must allege and prove four elements: (1)…
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Supplemental Jurisdiction Appropriately Declined Over State Law Issue that Is Novel, Complex or a Matter of First Impression

From Mt Holly Citizens in Action, Inc. v. Township of Mount Holly, 2009 U.S. Dist. LEXIS 100032 (D.N.J. Oct. 23, 2009): Plaintiffs claim that the Township's use of its municipal powers to redevelop existing low income residential neighborhoods violates the General Welfare Clause of the New Jersey Constitution. Plaintiffs' claim is bas ...
From Mt Holly Citizens in Action, Inc. v. Township of Mount Holly, 2009 U.S. Dist. LEXIS 100032 (D.N.J. Oct. 23, 2009): Plaintiffs claim that the Township’s use of its municipal powers to redevelop existing low income residential neighborhoods violates the…
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Sanctions — Inclusion of Show-Cause Language in Magistrate Judge’s Report Rather than Stand-Alone Order Satisfies Rule 11(c)(3)

From Brunig v. Clark, 2009 U.S. App. LEXIS 3513 (5th Cir. Feb. 17, 2009): Brunig's brief asserts that the district court never issued a show cause order. This assertion misstates the record — the magistrate report's final section described Brunig's conduct, recommended that the district court judge impose sanctions, and directed Bruni ...
From Brunig v. Clark, 2009 U.S. App. LEXIS 3513 (5th Cir. Feb. 17, 2009): Brunig’s brief asserts that the district court never issued a show cause order. This assertion misstates the record — the magistrate report’s final section described Brunig’s…
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FSIA — Expropriation Exception — Foreign State Defendant Need Not Be the State that Wrongfully Expropriated — Foreign Exhaustion Discretionary — Commercial Activity Includes Ads, Press Releases

From Cassirer v. Kingdom of Spain, 580 F.3d 1048 (9th Cir. 2009): Claude Cassirer ("Cassirer") filed this action in federal district court against the Kingdom of Spain ("Spain") and the Thyssen-Bornemisza Collection Foundation (the "Foundation") 1 to recover a Camille Pissarro painting now on display at the Foundation's museum in Madrid, ...
From Cassirer v. Kingdom of Spain, 580 F.3d 1048 (9th Cir. 2009): Claude Cassirer (“Cassirer”) filed this action in federal district court against the Kingdom of Spain (“Spain”) and the Thyssen-Bornemisza Collection Foundation (the “Foundation”) 1 to recover a Camille…
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Alien Tort Statute — Sosa Does Not Incorporate Customary International Law, Wholesale, into ATS; RICO — § 1962(b) Elements

From In re Xe Servs. Alien Tort Litig., 2009 U.S. Dist. LEXIS 97994 (E.D. Va. Oct. 21, 2009): [Alien Tort Statute] Importantly, Sosa counsels the federal courts to engage in "vigilant doorkeeping" when determining whether to recognize a cause of action under the ATS for five reasons, each of which relates to the need ...
From In re Xe Servs. Alien Tort Litig., 2009 U.S. Dist. LEXIS 97994 (E.D. Va. Oct. 21, 2009): [Alien Tort Statute] Importantly, Sosa counsels the federal courts to engage in “vigilant doorkeeping” when determining whether to recognize a cause of…
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Inappropriate for Expert to Opine as to State of Mind, Summarize Documents with a “Tilt” or Offer Legal Conclusions — But Testimony as to the Reasonableness of a Party’s Behavior May Be Permissible

From In Re Genetically Modified Rice Litigation, 2009 U.S. Dist. LEXIS 98302 (E.D. Mo. Oct. 9, 2002): Rule 702 permits expert testimony if it "will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed. R. Evid. 702. The key inquiries are the (1) factual basis of the opinion, (2) reliability of the m ...
From In Re Genetically Modified Rice Litigation, 2009 U.S. Dist. LEXIS 98302 (E.D. Mo. Oct. 9, 2002): Rule 702 permits expert testimony if it “will assist the trier of fact to understand the evidence or to determine a fact in…
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Multidistrict Litigation — When Transferee (MDL) Court May Overturn Decision of Transferor (Caselaw Split) — Mandamus to Review Transferee Court’s Refusal to Reconsider Decision of Transferor

From In re: Ford Motor Co., 580 F.3d 308 (5th Cir. 2009) [Note: Corrected opinion filed 12/16/09, reported at 2009 U.S. App. LEXIS 27637]: :The issue—whether we can grant mandamus on a district court's refusal to reconsider a pretrial MDL decision—is one of first impression in this circuit. *** We begin by addressing ho ...
From In re: Ford Motor Co., 580 F.3d 308 (5th Cir. 2009) [Note: Corrected opinion filed 12/16/09, reported at 2009 U.S. App. LEXIS 27637]: :The issue—whether we can grant mandamus on a district court’s refusal to reconsider a pretrial MDL…
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“Excusable Neglect” within Federal Rule of Civil Procedure 6(b) — Unawareness of ECF Message

From Kucik v. Yamaha Motor Corp., 2009 U.S. Dist. LEXIS 96704 (N.D. Ind. Oct. 16, 2009): Before this Court can consider the merits of the spoliation argument, it must address a procedural wrinkle that presented itself when the Plaintiff failed to timely respond to the Defendant's Motion to Dismiss. The Plaintiff's counsel advised during ...
From Kucik v. Yamaha Motor Corp., 2009 U.S. Dist. LEXIS 96704 (N.D. Ind. Oct. 16, 2009): Before this Court can consider the merits of the spoliation argument, it must address a procedural wrinkle that presented itself when the Plaintiff failed…
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Arbitration — Generic Choice of Law Provision Does Not Opt Out of Federal Arbitration Act and Permit Expanded Appellate Review Under State Law

From Oberwager v. McKenchnie Ltd., 2009 U.S. App. LEXIS 23006 (3d Cir. Oct. 20, 2009): This case arises from a stock purchase agreement ("SPA") entered into by the parties in 1999, providing for arbitration of any dispute arising from the agreement. The SPA also contained a generic choice-of-law provision which stated that the agreemen ...
From Oberwager v. McKenchnie Ltd., 2009 U.S. App. LEXIS 23006 (3d Cir. Oct. 20, 2009): This case arises from a stock purchase agreement (“SPA”) entered into by the parties in 1999, providing for arbitration of any dispute arising from the…
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D.C. Circuit Declines to Decide whether Sua Sponte Sanctions May Issue Only in Circumstances “Akin to Contempt” — Lingering Circuit Split

From Lucas v. Duncan, 574 F.3d 772 (D.C. Cir. 2009): Although both Karl and the Department of Education agree that this court should review the magistrate judge's order for abuse of discretion with particular care, ... they disagree as to the substantive standard that the judge should himself have applied. Karl notes that Rule 11(c)(2), ...
From Lucas v. Duncan, 574 F.3d 772 (D.C. Cir. 2009): Although both Karl and the Department of Education agree that this court should review the magistrate judge’s order for abuse of discretion with particular care, … they disagree as to…
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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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