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

Work Product Protection as Applicable Only to Parties and Inapplicable Even to Non-Parties Litigating a Related Action

From SEC v. Microtune, Inc., 2009 U.S. Dist. LEXIS 47091 (N.D. Tex. June 4, 2009) (dictum): [Footnote 3] ... Under the plain language of Rule 26(b)(3), only a party can claim work product protection. See, e.g. FTC v. Grolier, 462 U.S. 19, 25, 103 S.Ct. 2209, 2213, 76 L.Ed.2d 387 (1983) (dictum); Tambourine Comercio Internati ...
From SEC v. Microtune, Inc., 2009 U.S. Dist. LEXIS 47091 (N.D. Tex. June 4, 2009) (dictum): [Footnote 3] … Under the plain language of Rule 26(b)(3), only a party can claim work product protection. See, e.g. FTC v. Grolier, 462…
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Arbitration — Order of Priority of the Federal Arbitration Act, New York Convention and Inter-American Convention (Chapters 1, 2 and 3 of Title 9)

From RZS Holdings AVV v. PDVSA Petroleos S.A., 2009 U.S. Dist. LEXIS 47126 (E.D. Va. Feb. 5, 2009): The Court holds that the terms and provisions of the Inter-American Convention on International Commercial Arbitration ("the Inter-American Convention" or "Chapter Three") govern this arbitral award, and not Chapter One of the Federal Arbi ...
From RZS Holdings AVV v. PDVSA Petroleos S.A., 2009 U.S. Dist. LEXIS 47126 (E.D. Va. Feb. 5, 2009): The Court holds that the terms and provisions of the Inter-American Convention on International Commercial Arbitration (“the Inter-American Convention” or “Chapter Three”)…
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Authentication of Chat Room Evidence

From State v. Bell, 2009 Ohio 2335; 2009 Ohio App. LEXIS 2112 (Ohio Ct. App. May 18, 2009): [A]ppellant argues that the trial court erred by admitting printouts of the alleged on-line conversations and e-mail messages between T.W., one of the teenage victims, and appellant "that took place through MySpace" because the disputed documents w ...
From State v. Bell, 2009 Ohio 2335; 2009 Ohio App. LEXIS 2112 (Ohio Ct. App. May 18, 2009): [A]ppellant argues that the trial court erred by admitting printouts of the alleged on-line conversations and e-mail messages between T.W., one of…
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Rule 701 vs. Rule 702 — Lay Opinion Testimony — Is the Absence of Expertise an Advantage?

From San Luis & Delta-Mendota Water Authority v. Salazar, 2009 U.S. Dist. LEXIS 45137 (E.D. Cal. May 29, 2009): Federal Rule of Evidence 602 limits lay witness testimony to factual matters of which the witness has personal knowledge. Federal Rule of Evidence 701 limits opinion testimony by lay witnesses to "opinions or inferences which ...
From San Luis & Delta-Mendota Water Authority v. Salazar, 2009 U.S. Dist. LEXIS 45137 (E.D. Cal. May 29, 2009): Federal Rule of Evidence 602 limits lay witness testimony to factual matters of which the witness has personal knowledge. Federal Rule…
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Contractual Designation of State’s Law as Governing Does Not Evidence Parties’ Intent to Preclude Application of Federal Arbitration Act

From Precision Press, Inc. v. MLP USA, Inc., 2009 U.S. Dist. LEXIS 46107 (N.D. Iowa June 1, 2009): MLP argues that the Sales Agreement's arbitration clause is governed by federal law, the FAA. Anderson Brothers contends that state law should govern because of the parties' incorporation of a choice of law clause in paragraph 13(g) of the ...
From Precision Press, Inc. v. MLP USA, Inc., 2009 U.S. Dist. LEXIS 46107 (N.D. Iowa June 1, 2009): MLP argues that the Sales Agreement’s arbitration clause is governed by federal law, the FAA. Anderson Brothers contends that state law should…
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RICO Standing Unaffected by Plaintiff’s Post-Injury Change of State of Incorporation — RICO Conspiracy Claim Contingent on Viable Substantive Claim

From Blythe Holdings, Inc. v. Flawless Fin. Corp., 2009 U.S. Dist. LEXIS 2727 (N.D. Ill. Jan. 15, 2009): [Change of State of Incorporation.] …[Defendant] Coleman contends that Plaintiffs do not have standing pursuant to § 1962(c) to bring their RICO claims because of the six predicate acts upon which the RICO claims are based ...
From Blythe Holdings, Inc. v. Flawless Fin. Corp., 2009 U.S. Dist. LEXIS 2727 (N.D. Ill. Jan. 15, 2009): [Change of State of Incorporation.] …[Defendant] Coleman contends that Plaintiffs do not have standing pursuant to § 1962(c) to bring their RICO…
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Trustee of Litigation Trust Succeeds to Attorney-Client Privilege of Creditors’ Committee for Reports Prepared by Committee Counsel — Common Interest and Work Product also Extend to Reports

The Creditors’ Committee in Osherow v. Vann, 2009 Bankr. LEXIS 1152 (Bankr. W.D. Tex. April 13, 2009), retained counsel to evaluate claims held by the debtor. After the reports were prepared, a Litigation Trust was appointed. It was assigned the claims and designated a successor-in-interest to the Committee. The Trustee of the Litigation Trust asserted a ...
The Creditors’ Committee in Osherow v. Vann, 2009 Bankr. LEXIS 1152 (Bankr. W.D. Tex. April 13, 2009), retained counsel to evaluate claims held by the debtor. After the reports were prepared, a Litigation Trust was appointed. It was assigned the…
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Cross-Examination of Expert Using Treatise to be Authenticated by Subsequently-Testifying Expert

Under Fed.R.Evid. 803(18), learned treatises need not be acknowledged as reliable by the testifying expert. They are “not excluded by the hearsay rule . . . [t]o the extent called to the attention of an expert witness upon cross-examination [and] established as a reliable authority . . . by other expert testimony or by judicial notice.” They can be authenticat ...
Under Fed.R.Evid. 803(18), learned treatises need not be acknowledged as reliable by the testifying expert. They are “not excluded by the hearsay rule . . . [t]o the extent called to the attention of an expert witness upon cross-examination [and]…
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Sanctions — Unasserted, After-the-Fact Rationale Insufficient to Defeat Rule 11 or § 1927 Sanctions — Vicarious Liability

From Vazquez v. Central States Joint Bd., 2009 U.S. Dist. LEXIS 16987 (N.D. Ill. Mar. 3, 2009): [After-the-Fact Research.] ***Plaintiffs' newly developed argument in support of their previous position is irrelevant to the issue of sanctions. What matters is whether Plaintiffs made a non-frivolous argument in support of their p ...
From Vazquez v. Central States Joint Bd., 2009 U.S. Dist. LEXIS 16987 (N.D. Ill. Mar. 3, 2009): [After-the-Fact Research.] ***Plaintiffs’ newly developed argument in support of their previous position is irrelevant to the issue of sanctions. What matters is whether…
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Sanctions — Prejudgment Appeal of Sanction Order Premature and Not Revived by Subsequent Entry of Judgment — Separate, Timely Post-Judgment Appeal Required

From Adams v. Ford Motor Co., 2009 U.S. App. LEXIS 6460 (3d Cir. Mar. 26, 2009): On May 27, 2008, the District Court entered an order declaring, inter alia, that "the Court finds that Vincent A. Colianni, Sr., [counsel for the plaintiff] has engaged in misconduct by his post-verdict communication with a juror in contravention of Am ...
From Adams v. Ford Motor Co., 2009 U.S. App. LEXIS 6460 (3d Cir. Mar. 26, 2009): On May 27, 2008, the District Court entered an order declaring, inter alia, that “the Court finds that Vincent A. Colianni, Sr., [counsel for…
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Recent Posts

Patently Frivolous RICO Complaint Fails to Confer Federal Question Jurisdiction — Subject to Rule 12(b)(1) for Lack of Subject Matter Jurisdiction

Inherent Power Sanctions — Dismissal — Abuse of Discretion Review Is “More Exacting” When Judge is “Accuser, Fact Finder and Sentencing Judge All in One” — Client Responsible for Her Lawyer’s Discovery Defalcations — No Need for Evidentiary Hearing When Sanctions Based Entirely on an Established Record — Lesser Sanctions Reasonably Determined to be Ineffective Given Record of Repeated Discovery Abuses

Inherent Power Sanction of Dismissal for Fraud on the Court — Fabrication of Evidence and Lying about It to the Court — 2-Part Test for Dismissal Sanction (Eleventh Circuit) — Whether Fraud on Court Was Committed for the Court, Not a Jury

New York Law Firm That Advised Florida Resident for Years Subject to Personal Jurisdiction in Florida, Thus Subject to 28 U.S.C. § 1782 in Florida — Court Cannot Amend Protective Order Following Dismissal of Case Unless the Order Retains Jurisdiction Post-Dismissal — Parties Can Enforce Stipulated Protective Order Post-Dismissal Through Breach of Contract Action

Rule 37(e)/Spoliation — “Intent to Deprive” Determined under the Preponderance of the Evidence Standard — Court May Make Determination Or Allow Jury to Do So — Lesser “Culpable Conduct” Standard of Residential Funding Continues to Apply in Second Circuit Outside ESI Context — Once Judge Has Definitively Ruled on the Record Denying A Requested Instruction, Counsel Is Not Required to Object to the Charge Again at Trial to Preserve Issue for Appeal

Rule 11 (9011) and Inherent Power Sanctions for “Unapologetic [Refusal to Apologize] Defiance” of Court’s Rules and Orders — Advising Client to Take Steps That Same Judge Had Told Lawyer Were Improper in Prior Case — Obstinate Recidivism — Silence upon Withdrawal of Motion As Rule 11 (9011) Violation (Noted But Not Addressed on Appeal)

Rule 37 Sanctions Properly Denied for Failure to Produce Documents That Were Already in the Requester’s Possession And Were Not Relevant to The Principal Issue in the Lawsuit — Experts/Daubert: Exclusion Appropriate Where Opinion Was Predicated on Erroneous Assumptions of Law

Supreme Court: Obtaining a Preliminary Injunction Does Not Render the Plaintiff a “Prevailing Party” Entitled to Attorney’s Fees — Must Win “Enduring Relief” On The Merits From A Judicial Order — Extraneous Events, Like Legislation, That Preserve The Outcome And Moot The Lawsuit Do Not Turn The Plaintiff into A Prevailing Party (Note, However, That A Defendant Need Not Obtain A Favorable Judgment On The Merits In Order To Be A “Prevailing Party”)

Supreme Court: When A Plaintiff Amends The Complaint To Delete The Federal-Law Claims That Enabled Removal To Federal Court, Leaving Only State-Law Claims, The Federal Court Loses Supplemental Jurisdiction, And The Case Must Be Remanded To State Court

Supreme Court: A Rule 41(a) Voluntary Dismissal Without Prejudice = A Final Proceeding Within Rule 60(b) — Advisory Committee Notes Are “A Reliable Source Of Insight Into The Meaning Of A Rule” — Prior to Dismissal or Entry of Judgment, A District Court May Always Rehear and Reconsider Prior Rulings

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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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