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

Recalculation of Damages after Plaintiffs Cannot Explain Charts at Their Depositions Insufficient to Warrant § 1927 or Inherent Power Sanctions

From Gortat v. Capala Bros., Inc., 2008 U.S. Dist. LEXIS 102500 (E.D.N.Y. Dec. 18, 2008): Although it is somewhat disconcerting that plaintiffs' damages were recalculated after plaintiffs were deposed, this in itself hardly constitutes misconduct warranting sanctions. In wage and hour violation cases, a plaintiff's calculation of the dam ...
From Gortat v. Capala Bros., Inc., 2008 U.S. Dist. LEXIS 102500 (E.D.N.Y. Dec. 18, 2008): Although it is somewhat disconcerting that plaintiffs’ damages were recalculated after plaintiffs were deposed, this in itself hardly constitutes misconduct warranting sanctions. In wage and…
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Experts: Failure to Act upon Receipt of Inadequate 26(a)(2) Disclosure = Unacceptable Gamesmanship

From Foreman v. Am. Road Lines, Inc., 2008 U.S. Dist. LEXIS 102278 (S.D. Ala. Dec. 16, 2008): Unquestionably, it was incumbent on defendants to comply fully and timely with the disclosure requirements of Rule 26(a)(2), including specifically providing plaintiffs with a list of other cases in which Dr. Davis has testified in the last four ...
From Foreman v. Am. Road Lines, Inc., 2008 U.S. Dist. LEXIS 102278 (S.D. Ala. Dec. 16, 2008): Unquestionably, it was incumbent on defendants to comply fully and timely with the disclosure requirements of Rule 26(a)(2), including specifically providing plaintiffs with…
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8(a), 9(b) and RICO

From Pineda v. Saxon Mortg. Servs., 2008 U.S. Dist. LEXIS 102439 (C.D. Cal. Dec. 10, 2008) (Selna, J.): First, Pineda does not state a claim under Rule 8(a), which is subject to the pleading requirements set forth in Twombly. "The elements of a civil RICO claim are as follows: (1) conduct (2) of an enterprise (3) through a patter ...
From Pineda v. Saxon Mortg. Servs., 2008 U.S. Dist. LEXIS 102439 (C.D. Cal. Dec. 10, 2008) (Selna, J.): First, Pineda does not state a claim under Rule 8(a), which is subject to the pleading requirements set forth in Twombly. “The…
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Third Party, But Not First Party, Spoliation States a Claim in Montana

From Peschel v. City of Missoula, 2008 U.S. Dist. LEXIS 98651 (D. Mont. Dec. 5, 2008): The Montana Supreme Court has recognized the torts of negligent and intentional spoliation as viable independent causes of action. Oliver v. Stimson Lumber Co., 1999 MT 328, P40, 297 Mont. 336, 993 P.2d 11. These torts, however, are cognizable ...
From Peschel v. City of Missoula, 2008 U.S. Dist. LEXIS 98651 (D. Mont. Dec. 5, 2008): The Montana Supreme Court has recognized the torts of negligent and intentional spoliation as viable independent causes of action. Oliver v. Stimson Lumber Co.,…
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RICO Enterprise — Ascertainable Structure Requirement — Supreme Court Argument on Wednesday, January 14

On Wednesday, January 14, 2008, the Supreme Court will hear argument in Boyle v. United States, No. 07-1309, to address the Circuit split as to whether the enterprise requirement of RICO requires the existence of an ascertainable structure (and, if so, what that structure must consist of). See our posts of March 10, 2008; July 6, 2007; and May 8, 2007. < ...
On Wednesday, January 14, 2008, the Supreme Court will hear argument in Boyle v. United States, No. 07-1309, to address the Circuit split as to whether the enterprise requirement of RICO requires the existence of an ascertainable structure (and, if…
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Sanctions Exclusion in Legal Malpractice Policy Does Not Bar Coverage of Sanctions Motion Joined in by Lawyer’s Own Client

The plaintiffs in Post v. St. Paul Travelers Ins. Co., 2009 U.S. Dist. LEXIS 641 (E.D. Pa. Jan. 7, 2009), were lawyers who had represented Mercy Hospital in a medical malpractice case. Mercy Hospital put the lawyers on notice that it intended to pursue a legal malpractice claim against them, contending that counsel’s discovery abuse forced it to settle the ...
The plaintiffs in Post v. St. Paul Travelers Ins. Co., 2009 U.S. Dist. LEXIS 641 (E.D. Pa. Jan. 7, 2009), were lawyers who had represented Mercy Hospital in a medical malpractice case. Mercy Hospital put the lawyers on notice that…
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Experts — Sanctions — Discretion Shrinks as Severity Grows

From Junk v. Terminix Intl. Co., 2008 U.S. Dist. LEXIS 102161 (S.D. Iowa Aug. 15, 2008): "When a party fails to provide information or identify a witness in compliance with Rule 26(a) or (e), the district court has wide discretion to fashion a remedy or sanction as appropriate for the particular circumstances of the case. Wegener v. J ...
From Junk v. Terminix Intl. Co., 2008 U.S. Dist. LEXIS 102161 (S.D. Iowa Aug. 15, 2008): “When a party fails to provide information or identify a witness in compliance with Rule 26(a) or (e), the district court has wide discretion…
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Electronic Discovery — Presumptive Right to Electronically-Stored Information in Native Format

From Superior Prod. P’ship v. Gordon Auto Body Parts, 2008 U.S. Dist. LEXIS 97535 (S.D. Ohio Dec. 2, 2008): The first issue raised by the motion to compel is whether Gordon should be required to produce documents in their native electronic format. The parties agree that Gordon keeps information in electronic format, but it has produce ...
From Superior Prod. P’ship v. Gordon Auto Body Parts, 2008 U.S. Dist. LEXIS 97535 (S.D. Ohio Dec. 2, 2008): The first issue raised by the motion to compel is whether Gordon should be required to produce documents in their native…
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Letters Threatening Rule 11 Sanctions Do Not Violate Order Staying All Proceedings

The lawsuit in Nilssen v. General Electric Co., 2008 U.S. Dist. LEXIS 94448 (N.D. Ill. Nov. 12, 2008), was stayed at the plaintiff’s request pending the appeal of another action deciding that the plaintiff’s patents were unenforceable. Plaintiffs also take issue with four letters that GE sent to Plaintiffs' counsel, either threatenin ...
The lawsuit in Nilssen v. General Electric Co., 2008 U.S. Dist. LEXIS 94448 (N.D. Ill. Nov. 12, 2008), was stayed at the plaintiff’s request pending the appeal of another action deciding that the plaintiff’s patents were unenforceable. Plaintiffs also take…
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Cause of Action for Negligent Spoliation of Evidence Recognized in Connecticut

From Basso v. Boston Scientific Corp., 2008 Conn. Super. LEXIS 3020 (Conn. Super. Ct. Nov. 21, 2008): The hospital ... moves to strike counts seven and eight on the grounds that Connecticut does not recognize the tort of negligent spoliation of evidence. Although at least two Superior Court judges have ruled that a plaintiff cannot proc ...
From Basso v. Boston Scientific Corp., 2008 Conn. Super. LEXIS 3020 (Conn. Super. Ct. Nov. 21, 2008): The hospital … moves to strike counts seven and eight on the grounds that Connecticut does not recognize the tort of negligent spoliation…
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Recent Posts

RICO Person vs. Enterprise: Subsidiary in Typical Corporate Structure Does Not Control Parent And Therefore Does Not Conduct Parent’s Affairs

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

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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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