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

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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Methodology for Computing Attorney’s Fees — Inherent Power Sanctions

From Mr. Rooter Corp. v. Mr. Plumber, Rooter & Plumbing Servs., LLC, 2008 U.S. Dist. LEXIS 85836 (D. Nev. Oct. 6, 2008): The federal court has inherent power to levy sanctions, including attorneys' fees, for "willful disobedience of a court order." Roadway Express v. Piper, 447 U.S. 752, 766 (1980).... [D]espite the court's rep ...
From Mr. Rooter Corp. v. Mr. Plumber, Rooter & Plumbing Servs., LLC, 2008 U.S. Dist. LEXIS 85836 (D. Nev. Oct. 6, 2008): The federal court has inherent power to levy sanctions, including attorneys’ fees, for “willful disobedience of a court…
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Erie — State Offer of Settlement Statute Is Substantive and Applies in Federal Court Diversity Action

From Wheatley v. Moe’s SW Grill, LLC, 2008 U.S. Dist. LEXIS 88108 (N.D. Ga. Sept. 30, 2008): ...Rule 68 and O.C.G.A. § 9-11-68 are not in "direct collision" with one another. Rule 68 is available only to a party defending against a claim, whereas O.C.G.A. § 9-11-68 is available to both plaintiffs and defendants. Moreover, Rule 68 a ...
From Wheatley v. Moe’s SW Grill, LLC, 2008 U.S. Dist. LEXIS 88108 (N.D. Ga. Sept. 30, 2008): …Rule 68 and O.C.G.A. § 9-11-68 are not in “direct collision” with one another. Rule 68 is available only to a party defending…
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Experts — Abusive Supplementation of Expert Report to Avoid Summary Judgment

From Gallagher v. Southern Source Packaging, 568 F. Supp. 2d 624 (E.D.N.C. 2008): Supplementation of an expert report permits a party to correct inadvertent errors or omissions. Supplementation, however, is not a license to amend an expert report to avoid summary judgment. See, e.g., Beller ex rel. Beller v. United States,
From Gallagher v. Southern Source Packaging, 568 F. Supp. 2d 624 (E.D.N.C. 2008): Supplementation of an expert report permits a party to correct inadvertent errors or omissions. Supplementation, however, is not a license to amend an expert report to avoid…
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RICO — Hub-and-Spoke Configuration ≠ Enterprise

In addition to finding that the “Google Network” was too diffuse to comprise a RICO enterprise, the Court in Vulcan Golf, LLC v. Google Inc., 2008 U.S. Dist. LEXIS 60608 (N.D. Ill. July 31, 2008), noted that, whatever validity a hub-and-spoke configuration may have as a form of conspiracy, it does not amount to a RICO enterprise: As . ...
In addition to finding that the “Google Network” was too diffuse to comprise a RICO enterprise, the Court in Vulcan Golf, LLC v. Google Inc., 2008 U.S. Dist. LEXIS 60608 (N.D. Ill. July 31, 2008), noted that, whatever validity a…
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Website Evidence — Self-Authentication

The case law is fairly uniform that printouts from government websites are self-authenticating under Fed.R.Evid. 902. See the article entitled Internet and Email Evidence 2008 on the Recent Articles page (http://www.josephny_live.com/articles/viewarticle.php?58). That doesn’t mean anything goes. There are still some hoops to be jumped. From Owens v. ...
The case law is fairly uniform that printouts from government websites are self-authenticating under Fed.R.Evid. 902. See the article entitled Internet and Email Evidence 2008 on the Recent Articles page (http://www.josephny_live.com/articles/viewarticle.php?58). That doesn’t mean anything goes. There are still some…
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Producing Documents in Non-Searchable TIFF Format Violates Rule 34 If Producing Party Maintains Them in Any Searchable Format

From Goodbys Creek, LLC v. Arch Ins. Co., 2008 U.S. Dist. LEXIS 79660 (M.D.Fla. Sept. 15, 2008): Neither party disputes Goodbys' failure to specify a desired format for the documents.... Because of such failure, Arch chose, of its own accord, to produce the requested documents "via TIFF images" rather than in their native format.... Pla ...
From Goodbys Creek, LLC v. Arch Ins. Co., 2008 U.S. Dist. LEXIS 79660 (M.D.Fla. Sept. 15, 2008): Neither party disputes Goodbys’ failure to specify a desired format for the documents…. Because of such failure, Arch chose, of its own accord,…
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Experts and Electronic Spoliation — Reliance on Internet Discussions with Other Experts Satisfies Fed.R.Evid. 703 — Reasonably Relied on by Experts in Forming Opinion

The plaintiff in Nucor Corp., v. Bell, 2008 U.S. Dist. LEXIS 86328 (D.S.C. Jan. 11, 2008), sued its former employee and his new employer for trade secret misappropriation. On the pending motion for sanctions, the plaintiff claimed that the defendants had spoliated evidence by wiping the hard drive of a laptop and disposing of a USB drive. The plaintiff mov ...
The plaintiff in Nucor Corp., v. Bell, 2008 U.S. Dist. LEXIS 86328 (D.S.C. Jan. 11, 2008), sued its former employee and his new employer for trade secret misappropriation. On the pending motion for sanctions, the plaintiff claimed that the defendants…
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Recent Posts

FRAP 38 Sanctions — Sixth Circuit Usually Declines to Impose FRAP 38 Sanctions Unless An Improper Purpose Was Behind the Appeal

FRAP 38: Permissible for Appeals Court to Affirm Sanctions But Deny FRAP 38 Sanctions for Appeal — A Defendant’s Voluntary Cessation of Complained of Behavior Does Not Moot a Case Unless It Is Clear That The Behavior Could Not Reasonably Be Expected to Recur

Rule 11: Violation of 21 Day Safe Harbor “Overlook[ed]” As Non-Prejudicial by First Circuit — “Rule 11 Monetary Sanctions Must Be Reasonable” (Good Quote) — Rule 11(c)(4) Requires Consideration of Offender’s Ability to Pay

Temporary Restraining Order = Preliminary Injunction: 3 Supreme Court Cases (TRO=PI x 3)

Rule 37(c)(1) Sanctions — Exclusion of Untimely Expert Report — Eighth Circuit’s 4-Factor Test

RICO: So Insubstantial A Claim As to Fail to Confer Subject Matter Jurisdiction

RICO: Distinctiveness Issues Most Likely to Appear When The Enterprise Is An Entity Capable of Being Sued, Like A Corporation

Supreme Court: RICO: (1) Injuries to Business or Property That Derive from a Personal Injury Are Recoverable — (2) “Injury” Is Interchangeable in Meaning with “Harm” And Other Terms Connoting Loss — (3) “The Clayton Act and § 1964(c) Are Not ‘Interchangeable’” (Good Quote)— (4) (4) “You Can’t Replace Something With Nothing” (Good Quote) — (5) The Recoverable Economic Harm Flowing from Personal Injuries, Like All Other Recoverable RICO Harm, Must be Direct — (6)” Harm Resulting from a Single Tort Is Not a Ticket to Federal Court for Treble Damages” (Good Quote)

FRAP 38 Sanctions: Eleventh Circuit Generally Declines to Impose FRAP 38 Sanctions on Pro Se Appellants Absent a History of Frivolous Litigation or an Explicit Warning

Inherent Power Sanctions for Bad Faith in (1) Misrepresenting Patent Ownership in Amended Complaint and (2) Failing to Supplement Discovery Responses to Rectify This after the Discovery Period Had Closed, Both of Which Led to Continued Litigation After One Plaintiff Had Lost Standing — The Duty To Supplement Discovery Responses under Rule 26(e) Continues Even After The Discovery Period Has Closed — Use of Inherent Power to Sanction Violation of Local Rules That Lack Sanctions Provisions (Sanction Reversed on Other Grounds)

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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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