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

Rule 701 vs. 702: Witness with Technical or Specialized Knowledge May Provide 701 Opinion Directly Related to Witness’s Personal Knowledge without Making 702 Expert Disclosure — Expert Opining as Such Must Make Timely Disclosure

 Modern Auto. Network, LLC v. E. Alliance Ins. Co., 2019 U.S. Dist. LEXIS 161850Before the Court are Defendants' Motion for Summary Judgment, (ECF No. 32), Plaintiff's Motion to Strike, (ECF No. 35), and Defendants' ...
Modern Auto. Network, LLC v. E. Alliance Ins. Co., 2019 U.S. Dist. LEXIS 161850Before the Court are Defendants' Motion for Summary Judgment, (ECF No. 32), Plaintiff's Motion to Strike, (ECF No. 35), and Defendants' Motion in Limine, (ECF No.…
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In Diversity Case, Does State or Federal Law Determine Whether Judge May Inform Jury of Effect of Its Findings? — Federal, Because It’s Procedural — Judge Not Required to, But May, Do So, in Instructions or Verdict Form

 Ermini v. Scott, 2019 U.S. App. LEXIS 27206 (11th Cir. Sept. 10, 2019): This case arises out of a routine wellness check that went badly awry. The underlying episode began with three Lee County deputies sto ...
Ermini v. Scott, 2019 U.S. App. LEXIS 27206 (11th Cir. Sept. 10, 2019): This case arises out of a routine wellness check that went badly awry. The underlying episode began with three Lee County deputies stopping by to check on…
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Untimely Expert Report — Rule 37(c)(1) Exclusion Is Matter of Discretion for District Court — Harmless Error May Be Inferred from Facts before District Court

 Long v. E. Coast Waffles, Inc., 762 Fed. Appx. 869 (11th Cir. Mar. 8, 2019) (unpublished): PER CURIAM: East Coast Waffles, Inc. appeals from the district court's judgment in favor of plai ...
Long v. E. Coast Waffles, Inc., 762 Fed. Appx. 869 (11th Cir. Mar. 8, 2019) (unpublished): PER CURIAM: East Coast Waffles, Inc. appeals from the district court's judgment in favor of plaintiff Steve Long after a jury found East Coast …
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Work Product Protection Can Be Waived by Oral Statements — Here, Public Statements — Sufficiently Specific to Be Tantamount to Public Disclosure of the Contents of the Protected Material [Privilege]

 N.Y. Times Co. v. United States DOJ, 2019 U.S. App. LEXIS 29198 (2d Cir. Sept. 27, 2019): Plaintiffs-appellees The New York Times and reporter Charlie Savage (collectively "The Times") see ...
N.Y. Times Co. v. United States DOJ, 2019 U.S. App. LEXIS 29198 (2d Cir. Sept. 27, 2019): Plaintiffs-appellees The New York Times and reporter Charlie Savage (collectively "The Times") seek access under the Freedom of Information Act ("FOIA") to five …
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Common Interest Doctrine Requires That Shared Interest Be (1) Identical, Not Similar, and (2) Legal, Not Solely Commercial — Proponent of Attorney-Client Privilege Bears Burden of Proving Non-Waiver

 D.M. v. Wesley Med. Ctr. LLC, 2019 U.S. Dist. LEXIS 160886 (D. Kan. Sept. 19, 2019); MEMORANDUM & ORDER DENYING PLAINTIFF'S MOTION TO COMPEL Now before the Court i ...
D.M. v. Wesley Med. Ctr. LLC, 2019 U.S. Dist. LEXIS 160886 (D. Kan. Sept. 19, 2019); MEMORANDUM & ORDER DENYING PLAINTIFF'S MOTION TO COMPEL Now before the Court is Plaintiff's Motion to Compel (Doc. 365), seeking production by non-party CarePoint, …
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Attorney-Client Privilege: Parents’ Presence at Adult Child’s Consultation with Counsel Destroys Privilege — 3d Party’s Presence, Objectively Viewed, Must Be Reasonably Necessary, Or Another Exception Must Apply

Fox v. Alfini, 2018 CO 94, 432 P.3d 596 (Colo. 2018):  [**598]  en banc  [*P1]  In this original proceeding pursuant to
Fox v. Alfini, 2018 CO 94, 432 P.3d 596 (Colo. 2018):  [**598]  en banc  [*P1]  In this original proceeding pursuant to C.A.R. 21, we review the district court's order compelling production of a recording of petitioner Kayla Fox's …
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Attorney-Client Privilege: Employer As ERISA Fiduciary Can’t Assert Privilege against Beneficiaries on Matters of Plan Administration But Can As to Advice to Protect Self — Confidential Drafts of Disclosure Documents Privileged

 Baird v. Blackrock Institutional Trust Co., N.A., 2019 U.S. Dist. LEXIS 163615 (N.D. Cal. Sept. 24, 2019): On March 6, 2019, the parties filed a joint discovery letter regarding Defendants' discovery lo ...
Baird v. Blackrock Institutional Trust Co., N.A., 2019 U.S. Dist. LEXIS 163615 (N.D. Cal. Sept. 24, 2019): On March 6, 2019, the parties filed a joint discovery letter regarding Defendants' discovery log, in which Plaintiffs sought the production of thirty-three…
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No Federal Cause of Action for Spoliation Exists (Nor Does One Exist under Pennsylvania Law)

 Marinkovic v. Battaglia, 2019 U.S. Dist. LEXIS 162528 (W.D. Pa. Sept. 23, 2019): In these consolidated civil actions, pro se Plaintiff Mel Marinkovic ...
Marinkovic v. Battaglia, 2019 U.S. Dist. LEXIS 162528 (W.D. Pa. Sept. 23, 2019): In these consolidated civil actions, pro se Plaintiff Mel Marinkovic1 sued several former Armstrong County officials in connection with his attempts to purchase county-held properties through…
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Civil Contempt Appealable Only When Unconditional, Sanction Entered — Issue Is Compliance, Not Subjective Intent — Individuals Controlling Corp. Liable for Corp.’s Violation — Court Must Enter Findings, Conclusions (5th/11th Cirs.)

PlayNation Play Sys. v. Velex Corp., 2019 U.S. App. LEXIS 28810 (11th Cir. Sept. 24, 2019): PlayNation Play Systems, Inc., a company that makes and sells children's playground equipment, won a tra ...
PlayNation Play Sys. v. Velex Corp., 2019 U.S. App. LEXIS 28810 (11th Cir. Sept. 24, 2019): PlayNation Play Systems, Inc., a company that makes and sells children's playground equipment, won a trademark infringement verdict against Velex Corporation. This is the …
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Attorney-Client Privilege — Waiver — Advice of Counsel Defense — Voluntary Production of Documents Reflecting In-House Counsel’s Advice Waives Subject Matter, Requires Production of Outside Counsel’s Advice (Fed.R.Evid. 502(a))

 Stolarik v. New York Times Co., 2019 U.S. Dist. LEXIS 160994 (S.D.N.Y. Sept. 20, 2019): Plaintiff Robert Stolarik — a photographer who formerly worked for the New York Times (the "Times") — br ...
Stolarik v. New York Times Co., 2019 U.S. Dist. LEXIS 160994 (S.D.N.Y. Sept. 20, 2019): Plaintiff Robert Stolarik — a photographer who formerly worked for the New York Times (the "Times") — brings this action against the Times and Michele…
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Recent Posts

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

Spoliation: Fed. R. Civ. P. 37(e) Imposes a Higher Standard — Intent — Than Fourth Circuit Law Previously Applied to Spoliation of Electronically-Stored Information (And Still Does As to Non-ESI) — Willfulness vs. Intent

Inherent Power and § 1927 Sanctions: Removal of counsel from case, referral for disciplinary action, and award of fees and costs for assaulting opposing counsel at deposition — Failure to request hearing waive any right to a hearing — Notice and opportunity to be heard required before sua sponte sanctions imposed, whether under Rule 11, the inherent power of the court or § 1927 — Notice may come from court or opposing counsel — Order imposing sanctions cannot provide notice of sanctions — Nature of bad faith requirement for inherent power sanctions: bad faith to obstruct the judicial process or bring about violation of a court order — Sanctions proceeding need not defer (Younger abstention) to disciplinary proceeding involving the same conduct — Sanctions proceeding doesn’t threaten to interfere with disciplinary proceeding — Why District Court is accorded significant deference in matters concerning attorney’s fees

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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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