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

Expert Report Even if Sanctionable Is Not Violative of Rule 26(g)

Plaintiff Johnson in Johnson v. Bon-Ton Dep’t Stores, Inc., 2008 U.S. App. LEXIS 10920 (2d Cir. May 21, 2008) appealed from an order denying her motion to strike Defendant Bon-Ton's defenses as a sanction pursuant to Federal Rule of Civil Procedure 26(g) for submitting an allegedly false expert report. Reliance on Rule 26(g) was important to the plaintiff ...
Plaintiff Johnson in Johnson v. Bon-Ton Dep’t Stores, Inc., 2008 U.S. App. LEXIS 10920 (2d Cir. May 21, 2008) appealed from an order denying her motion to strike Defendant Bon-Ton’s defenses as a sanction pursuant to Federal Rule of Civil…
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Liability Insurer Owes Third-Party Claimant Duty Not to Spoliate Evidence by Repairing Insured’s Property

A fire in the insured’s mobile home caused damage to the plaintiff’s equipment that was in the adjacent space, in Coleman Constr., Inc. v. Diamond State Ins. Co., 2008 U.S. Dist. LEXIS 44735 (D. Mont. June 5, 2008). After adjusting its insured’s loss, the insurer promptly paid to have the fire-damaged property restored. The plaintiff, who did not fil ...
A fire in the insured’s mobile home caused damage to the plaintiff’s equipment that was in the adjacent space, in Coleman Constr., Inc. v. Diamond State Ins. Co., 2008 U.S. Dist. LEXIS 44735 (D. Mont. June 5, 2008). After adjusting…
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Demise of “Manifest Disregard” Disregarded

Kashner Davidson Securities Corp. v. Mscisz, 2008 U.S. App. LEXIS 13562 (1st Cir. June 28, 2008) must have been briefed and argued before the Supreme Court’s March 25, 2008 decision in Hall Street Assocs. LLC v. Mattel, Inc., 128 S.Ct. 1396 (2008), given that the Supreme Court jettisoned the “manifest disregard of law” standard of review for arb ...
Kashner Davidson Securities Corp. v. Mscisz, 2008 U.S. App. LEXIS 13562 (1st Cir. June 28, 2008) must have been briefed and argued before the Supreme Court’s March 25, 2008 decision in Hall Street Assocs. LLC v. Mattel, Inc., 128 S.Ct.…
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Interrogatories — How to Count Subparts for Purposes of the Limit of 25 Interrogatories per Party

Rule 33(a)(1) of the Federal Rules of Civil Procedure provides that "[u]nless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts." The question is what constitutes just “one” interrogatory. From Mitchell Co. v. Campus, 2008 U.S. Dist. LEXIS 47505 (S. ...
Rule 33(a)(1) of the Federal Rules of Civil Procedure provides that “[u]nless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts.” The question is…
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Sanctions — Abuse-of-Discretion Review Is Not Toothless

From Judge Sloviter’s dissent (on the issue of sanctions only) in Brubaker Kitchens Inc. v. Brown, 2008 U.S. App. LEXIS 11046 (3d Cir. May 21, 2008): I do not disagree with the majority that our standard of review of the District Court's imposition of sanctions is abuse of discretion. But that standard does not emasculate the courts o ...
From Judge Sloviter’s dissent (on the issue of sanctions only) in Brubaker Kitchens Inc. v. Brown, 2008 U.S. App. LEXIS 11046 (3d Cir. May 21, 2008): I do not disagree with the majority that our standard of review of the…
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Experts and Hidden Compensation — Do We Really Know How Much Our Experts Are Being Compensated? Have We Disclosed It Accurately?

In the past 24 hours I’ve received two calls, one from a friend at a preeminent Manhattan law firm and the other from an expert consulting firm that everyone uses, with the same message: Many academic and other experts that are retained through the blue chip consulting firms (Analysis Group, Charles River, Cornerstone, FTI, NERA, etc.) receive a percentage of the ...
In the past 24 hours I’ve received two calls, one from a friend at a preeminent Manhattan law firm and the other from an expert consulting firm that everyone uses, with the same message: Many academic and other experts that…
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New York State Spoliation Standards: Negligence Suffices

From Cordero v. St. Vincent's Hospital and Medical Center of N.Y., 2008 N.Y. Misc. LEXIS 3315, 239 N.Y.L.J. 102 (Sup. Ct. N.Y. County May 7, 2008): Spoliation of evidence occurs when "a party alters, loses, or destroys key evidence before it can be examined by the other party's expert..." Squitieri v. City of New York, 248 A.D.2 ...
From Cordero v. St. Vincent’s Hospital and Medical Center of N.Y., 2008 N.Y. Misc. LEXIS 3315, 239 N.Y.L.J. 102 (Sup. Ct. N.Y. County May 7, 2008): Spoliation of evidence occurs when “a party alters, loses, or destroys key evidence before…
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Federal Arbitration Law — 2008 Developments

A new article, Arbitration 2008, has been posted on the recent articles page (http://www.josephny_live.com/articles/viewarticle.php?56). It analyzes recent developments in the field of arbitration, including two U.S. Supreme Court decisions, one of which illustrates perhaps unexpected implications of incorporating the arbitral rules of the American Arbitrati ...
A new article, Arbitration 2008, has been posted on the recent articles page (http://www.josephny_live.com/articles/viewarticle.php?56). It analyzes recent developments in the field of arbitration, including two U.S. Supreme Court decisions, one of which illustrates perhaps unexpected implications of incorporating the arbitral…
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Lerner Article — What Goes Around Comes Around: Putting the “Civil” Back in Civil Litigation

Download associated file: Lerner Civility Article.pdf  Attached is an excellent article, What Goes Around Comes Around: Putting the "Civil" Back in Civil Litigation, by Jonathan J. Lerner, Esq., a senior partner at Skadden, Arps, Slate, Meagher & Flom, LLP, and on ...
Download associated file: Lerner Civility Article.pdf  Attached is an excellent article, What Goes Around Comes Around: Putting the “Civil” Back in Civil Litigation, by Jonathan J. Lerner, Esq., a senior partner at Skadden, Arps, Slate, Meagher & Flom, LLP,…
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Analyst Reports Uncited in Securities Complaint May Be Judicially Noticed on 12(b)(6) Motion

From Patel v. Parnes, 2008 U.S. Dist. LEXIS 46630 (C.D. Cal. May 19, 2008): While the court agrees with plaintiffs that the analyst reports may not be judicially noticed for the truth of the matters contained therein, it is appropriate to consider them for the purpose for which defendants offer them — i.e., to show "whether and when inf ...
From Patel v. Parnes, 2008 U.S. Dist. LEXIS 46630 (C.D. Cal. May 19, 2008): While the court agrees with plaintiffs that the analyst reports may not be judicially noticed for the truth of the matters contained therein, it is appropriate…
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Recent Posts

Inherent Power Sanctions — Dismissal for Threatening Defendant and Magistrate Judge — No First Amendment Right to Threaten Violence

RICO: Domestic Injury — Delivery of Fraudulently Non-Conforming Goods FOB Los Angeles for Shipment to China Means Injury Arose Domestically When Purchaser Took Title —Other Relevant Factors Include That The Non-Conforming Goods Were Sourced and Made in the U.S. and The Racketeering Activity (Mail/Wire Fraud) Occurred in, and Was Directed from, the United States — Irrelevant to Domestic Injury Inquiry Whether Property Is Tangible or Intangible — 7th Circuit’s “Injury-Felt” Test of Domestic Injury Rejected by Supreme Court — RICO Standing Requires Concrete Financial Loss, Not Merely Injury to Valuable Intangible Property Interest (9th Circuit)

RICO Causation: Parents of Children with Disabilities Deprived In-Person Education and Services during the Pandemic Were Not Causally Injured by Teachers’ False Assurances to Federal Authorities That IDEA-Complaint Policies Were in Place, Which Caused Funds to Issue But Not to the Benefit of the Disabled Children — Damages Too Indirect — Proper Plaintiff Is U.S. Government — Private Injunctive Relief Under RICO Uncertain in Third Circuit

Sanctions: Rule 37(b)(2) Dismissal — Sixth Circuit Factors

Inherent Power Sanctions — Extrajudicial Misconduct: Sanctions Power Extends to Conduct Intended to Sabotage Court’s Ability to Adjudicate the Case Before It, Here, By Commencing State Court Actions Seeking to Enjoin the Federal Plaintiffs from Proceeding with Their Federal Litigation — Sanctions Fee Awards: The Factors Used For Calculating A Fee Award To A Prevailing Party Do Not Govern — Under Goodyear, the Relevant Inquiry Is Whether There Is A Sufficient Causal Link Between The Sanctioned Misconduct And The Fees Awarded

RICO: Members of Association-in-Fact Enterprise Must Act with a Common Purpose—Mere Allegation That Various Defendants Agreed at Different Times to Engage in Various Fraudulent Schemes Does Not Plausibly Support the Essential Inference, That They Acted with s Sufficiently Common Purpose

RICO Causation: (1) State’s Misrepresentation to Federal Government That It Was Providing Plaintiffs with Mandated Special Education Did Not Cause Plaintiffs’ Injury Because The Failure to Provide The Education Was Not Caused by the Fraud on the Federal Government — (2) The Three Factors for Assessing RICO Causation — (3) Limits of the Second Circuit’s Decision in Alix v. McKinsey That Causation Can Be Established Where A Fraud On The Judiciary “Or Other Governmental Entity” Resulted In A Resource Going To Someone Less Deserving

Rule 41(b): Five Factors to Be Weighed in Deciding Whether Dismissal Is Appropriate (Second Circuit) — Is A Finding of Bad Faith or Fault Required if Dismissal Is Without Prejudice? — Undecided If Truly Without Prejudice But It Is Required If the Without Prejudice Dismissal Will Act as a Dismissal on the Merits (Here, Because of the Statute of Limitations) — Failure To Consider A Lesser Sanction Than Dismissal Is Generally An Abuse Of Discretion

Spoliation Sanctions/Mootness: Stipulation Resolving “All Pending Discovery Disputes,” Which Are Enumerated, Does Not Moot Subsequent Sanctions Motion for ESI Spoliation — Postjudgment Sanctions Order Is Appealable When District Court Has Finally Disposed of Both Liability and Amount

Rule 37 Default Judgment Sanction: (1) Default Judgment Appropriate Only As a Last Resort, When Less Drastic Sanctions Would Not Ensure Compliance with the Court’s Orders — (2) Default Judgment Sanction Requires Willful or Bad Faith Failure to Obey Discovery Order — (3) Fugitive Defendant’s Failure to Appear at Court-Ordered, Remote Deposition Despite Court Warning That Sanctions Could Follow Disobedience Warrants Default Judgment — (4) District Court Afforded Wide Discretion in Interpreting Its Own Orders — (5) Filing a Notice of Appeal from a Non-Appealable Order (Here, a Discovery Order) Does Not Deprive the District Court of Jurisdiction over the Case

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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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