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

Administrative Agencies, Retroactive Rulings and Extent of Judicial Deference

From NetworkIP, LLC v. FCC, 2008 U.S. App. LEXIS 23264 (D.C. Cir. Nov. 7, 2008): Though agencies are entitled to deference, they may not retroactively change the rules at will. Indeed, that "[e]lementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their con ...
From NetworkIP, LLC v. FCC, 2008 U.S. App. LEXIS 23264 (D.C. Cir. Nov. 7, 2008): Though agencies are entitled to deference, they may not retroactively change the rules at will. Indeed, that “[e]lementary considerations of fairness dictate that individuals should…
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Testimony That Is Inadmissible under Rule 26(a)(2) May Be Received on Daubert Motion

From City of Owensboro v. Kentucky Utilities Co., 2008 U.S. Dist. LEXIS 79292 (W.D. Ky. Oct. 8, 2008): [Plaintiff] OMU filed a Daubert motion to exclude the testimony of KU's damages expert, Mr. William Abington. In support of Plaintiffs' motion, OMU submitted the affidavit of Mark McClernon, OMU's expert rebuttal witness on KU's ...
From City of Owensboro v. Kentucky Utilities Co., 2008 U.S. Dist. LEXIS 79292 (W.D. Ky. Oct. 8, 2008): [Plaintiff] OMU filed a Daubert motion to exclude the testimony of KU’s damages expert, Mr. William Abington. In support of Plaintiffs’ motion,…
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Drafts of Affidavit Protected by Work Product Protection — Protection Not Waived by Filing Final

From Randleman v. Fidelity Nat’l Title Ins. Co., 251 F.R.D. 281 (N.D. Ohio 2008): The Southern District of Ohio, in Tuttle v. Tyco Electronics Installation Services, 2007 U.S. Dist. LEXIS 95527, 2007 WL 4561530, at *2 (S.D. Ohio) (Frost, J.), unambiguously stated that the work product doctrine protects information about the evol ...
From Randleman v. Fidelity Nat’l Title Ins. Co., 251 F.R.D. 281 (N.D. Ohio 2008): The Southern District of Ohio, in Tuttle v. Tyco Electronics Installation Services, 2007 U.S. Dist. LEXIS 95527, 2007 WL 4561530, at *2 (S.D. Ohio) (Frost, J.),…
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Mental-Impression Work Product Protection Afforded Attorney Notes of Interview with Witness

The plaintiffs in Mass Engineered Design, Inc. v. Ergotron, Inc., 2008 U.S. Dist. LEXIS 89151 (E.D. Tex. Oct. 31, 2008), had engaged a Canadian lawyer/U.S. patent agent named Waraksa but later became dissatisfied with his work. In this patent action, defense counsel interviewed Waraksa and sought to take his deposition. Plaintiffs’ counsel sought the inte ...
The plaintiffs in Mass Engineered Design, Inc. v. Ergotron, Inc., 2008 U.S. Dist. LEXIS 89151 (E.D. Tex. Oct. 31, 2008), had engaged a Canadian lawyer/U.S. patent agent named Waraksa but later became dissatisfied with his work. In this patent action,…
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Arbitration: “Manifest Disregard of the Law,” but Not of the Evidence, Survives Hall Street — Circuit Split

Earlier this year, the Supreme Court ruled in Hall Street Assocs. LLC v. Mattel, Inc., 128 S.Ct. 1396 (2008), that the Federal Arbitration Act “confines its expedited judicial review to the grounds listed in 9 U.S.C. §§ 10 and 11,” id. at 1408, and “manifest disregard of the law” nowhere appears in those sections. Therefore, one would think, the ma ...
Earlier this year, the Supreme Court ruled in Hall Street Assocs. LLC v. Mattel, Inc., 128 S.Ct. 1396 (2008), that the Federal Arbitration Act “confines its expedited judicial review to the grounds listed in 9 U.S.C. §§ 10 and 11,”…
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The Impact of Federal Rule of Evidence 502(d) on Protective Orders

A new article, entitled The Impact of Federal Rule of Evidence 502(d) on Protective Orders has been posted on the Recent Articles page at http://www.josephny_live.com/articles/viewarticle.php?59. The article discusses the manner in which protective orders -- specifically, provisions clawing back privileged information that has been disclosed -- should now be ...
A new article, entitled The Impact of Federal Rule of Evidence 502(d) on Protective Orders has been posted on the Recent Articles page at http://www.josephny_live.com/articles/viewarticle.php?59. The article discusses the manner in which protective orders — specifically, provisions clawing back privileged…
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Spoliation Sanctions — State vs. Federal Law

From Wilson v. Wal-Mart Stores, Inc., 2008 U.S. Dist. LEXIS 88429 (M.D.Fla Oct. 17, 2008), an employment action predicated on both federal and state law claims: While federal law governs the imposition of sanctions for spoliation of evidence, the Court may look to state law for guidance to the extent that it is consistent with federal law ...
From Wilson v. Wal-Mart Stores, Inc., 2008 U.S. Dist. LEXIS 88429 (M.D.Fla Oct. 17, 2008), an employment action predicated on both federal and state law claims: While federal law governs the imposition of sanctions for spoliation of evidence, the Court…
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Fraudulent Joinder — Standards — Fifth Circuit

From Gipson v. Wal-Mart Stores, Inc., 2008 U.S. Dist. LEXIS 88928 (S.D. Tex. Nov. 3, 2008): [Footnote] 2 "Fraudulent joinder" does not require a showing that the plaintiff had an intent to deceive or knew that the facts alleged were false. [Citation omitted; end of footnote.] The burden of persuasion on those who claim fraudulen ...
From Gipson v. Wal-Mart Stores, Inc., 2008 U.S. Dist. LEXIS 88928 (S.D. Tex. Nov. 3, 2008): [Footnote] 2 “Fraudulent joinder” does not require a showing that the plaintiff had an intent to deceive or knew that the facts alleged were…
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Reliance on Deposition Summaries Prepared by Counsel Renders Expert Opinion Unreliable

From Sommerfield v. City of Chicago, 2008 U.S. Dist. LEXIS 88760 (N.D. Ill. Nov. 3, 2008): Acceptance of the notion that an expert can reasonably base his opinion on summaries of deposition testimony prepared by a party's lawyer would effectively eliminate Daubert 's insistence that an expert's opinion be grounded on reliable infor ...
From Sommerfield v. City of Chicago, 2008 U.S. Dist. LEXIS 88760 (N.D. Ill. Nov. 3, 2008): Acceptance of the notion that an expert can reasonably base his opinion on summaries of deposition testimony prepared by a party’s lawyer would effectively…
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Privilege & Work Product — Choice of Law in Diversity Action — Privilege Governed by State Law, Work Product by Federal Law

From Randleman v. Fidelity Nat’l Title Ins. Co., 251 F.R.D. 281 (N.D. Ohio 2008): Although questions of evidentiary privilege arising in the context of a state law claim are governed by state law, Fed. R. Evid. 501, the work product doctrine, Fed. R. Civ. P. 26(b)(3), is not an evidentiary privilege. Consequently, the scope of the wor ...
From Randleman v. Fidelity Nat’l Title Ins. Co., 251 F.R.D. 281 (N.D. Ohio 2008): Although questions of evidentiary privilege arising in the context of a state law claim are governed by state law, Fed. R. Evid. 501, the work product…
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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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