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

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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28 U.S.C. § 1782 Allows the Taking of Discovery for Use in a Foreign Commercial Arbitration — Circuit Split: 6th Cir. (Yes) vs. 2d & 5th Cirs. (No)

 Abdul Latif Jameel Transp. Co. v. FedEx Corp. (In re Application to Obtain Discovery for Use in Foreign Proceedings), 2019 U.S. App. LEXIS 28348 (6th Cir. Sept. 19, 2019): Thomas Jefferson once counseled hi ...
Abdul Latif Jameel Transp. Co. v. FedEx Corp. (In re Application to Obtain Discovery for Use in Foreign Proceedings), 2019 U.S. App. LEXIS 28348 (6th Cir. Sept. 19, 2019): Thomas Jefferson once counseled his nephew Peter Carr on how to…
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Daubert: Conclusion That X Is Prima Facie a Cause Of Y ≠ A Conclusion X Caused Y — Expert Must Apply The Methods Of His Or Her Discipline for Expert to Be Qualified to Testify As to Outcome

 In re Nat'l Prescription Opiate Litig., 2019 U.S. Dist. LEXIS 146608 (N.D. Ohio Aug. 28, 2019): OPINION AND ORDER GRANTING IN PART DEFENDANTS' MOTION TO EXCLUDE MARKETING CAUSATION OPINIO ...
In re Nat'l Prescription Opiate Litig., 2019 U.S. Dist. LEXIS 146608 (N.D. Ohio Aug. 28, 2019): OPINION AND ORDER GRANTING IN PART DEFENDANTS' MOTION TO EXCLUDE MARKETING CAUSATION OPINIONS OF SCHUMACHER, LEMBKE, AND KEYES Before the Court is Defendants' Motion…
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Attorney-Client Privilege Does Not Cover Attorney’s Mental Impressions — Must Assert Work Product (Not Just Privilege) Or Lose Protection

 Burke v. Regalado, 2019 U.S. App. LEXIS 24806 (10th Cir. Aug. 20, 2019): Footnote 47.  The Sheriffs also contend the court erroneously permitted questions about [Attorney] Ms. Wyrick's thinking about t ...
Burke v. Regalado, 2019 U.S. App. LEXIS 24806 (10th Cir. Aug. 20, 2019): Footnote 47.  The Sheriffs also contend the court erroneously permitted questions about [Attorney] Ms. Wyrick's thinking about the email [as to which privilege was forfeited because it…
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Attorney-Client Privilege: Call from Prisoner to Sister Relaying Message for Attorney Not Privileged Where Prisoner on Notice Calls Were Monitored and Sister Not Essential to Effective Communication with Lawyer — Communication Not in Confidence

 United States v. Mejia, 655 F.3d 126 (2d Cir. 2011): Defendant-Appellant Joel Rodriguez ("Rodriguez") appeals from a judgment of conviction entered on June 30, 2010, by Judge Denise Cote of the Un ...
United States v. Mejia, 655 F.3d 126 (2d Cir. 2011): Defendant-Appellant Joel Rodriguez ("Rodriguez") appeals from a judgment of conviction entered on June 30, 2010, by Judge Denise Cote of the United States District Court for the Southern District of…
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Exceptional Case Fees Per 28 U.S.C. §285 Require Winning — Even If District Court Found Litigation Misconduct, Fees Can’t Be Sustained on Appeal as Sanctions If Not Awarded as Sxs — Hiring Judge’s Ex-Partner to Disqualify = Litigation Misconduct

UCP Int’l Co. v. Balsam Brands Inc., 2019 WL 4509162 (Fed. Cir. Sept. 19, 2019): *1 The instant appeal is the companion to concurrently issuing Appeal No. 18-1256 (“the Merits Appeal”), where we determined that the U.S. District Court for the Northern District of California misconstrued the “pivot joint” cla ...
UCP Int’l Co. v. Balsam Brands Inc., 2019 WL 4509162 (Fed. Cir. Sept. 19, 2019): *1 The instant appeal is the companion to concurrently issuing Appeal No. 18-1256 (“the Merits Appeal”), where we determined that the U.S. District Court for…
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Recent Posts

Rule 37 Default Judgment Sanction: (1) Abuse of Discretion Review = Legal Conclusions De Novo. Factual Findings for Clear Error — (2) Client May Be Sanctioned for Misconduct of Its Counsel, Though Here Client Was Directly Involved in Bad Faith Misbehavior — (3) Is There A Difference, Under Rule 11 As Opposed to Rule 37, Concerning Whether A Client Can Be Sanctioned for Its Counsel’s Misconduct? — (4) While Sanctions of Last Resort (Dismissal/Default) Are Apt Only If Lesser Sanctions Wouldn’t Ensure Compliance, Rule 37 Doesn’t Require the Vain Gesture of First Imposing Lessert Sanctions When It Is Clear They Would be Ineffective — (5) Court’s Reconsideration of Non-Final Orders Is Governed by Rule 54(b), And Court’s Discretion under That Rule Is Governed by the Law-of-the-Case-Doctrine

RICO: (1) Special Pleading Requirements? — (2) Although Enterprise Must Be More Than a Summation of the Predicate Acts, The Predicate Acts Can Demonstrate the Existence of the Enterprise — (3) Requirement That Association-in-Fact Exist For Purposes Other Than Just to Commit Predicate Acts Merely Requires Continuity — (4) To State an Association-in-Fact Enterprise Consisting of One Natural Person and Collection of Legal Fictions Requires Factual Detail As to How They Acted Together — (5) “A § 1962(c) Enterprise Must Be More Than An Association of Individuals Or Entities Conducting the Normal Affairs of a Defendant Corporation” (Good Quote)

RICO: (1) Fee Award May Exceed Amount Recovered — Strict Proportionality Not Required — (2) Nonmonetary Benefits and Injunctive Relief Recovered Also Relevant Factors — (3) Loss on Some Claims Need Not Result in Lowered Fees, Especially When Both Arise Out of The Same Nucleus of Operative Facts

RICO: Indirect Purchasers (Car Buyers/Renters) Lack Standing to Sue Manufacturers for RICO Violations Even Though Intermediaries (Auto Dealer Direct Purchasers) Lack Any Damages

RICO: Statutory Requirement that RICO Be Liberally Construed Does Not Establish a More Liberal Pleading Standard for RICO Claims — “To Be Sure, Adequately Pleading a RICO Claim Can Be Challenging” (Good Quote) — Court May Dismiss Action Pursuant to Rule 41(b) Absent A Motion

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

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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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