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 Testimony Disallowed but Testimony from Witness Elucidating Research Allowed as Factual

In the MTBE mass tort litigation, In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig., 2008 U.S. Dist. LEXIS 44216 (S.D.N.Y. June 4, 2008), homeowners in a small town in Orange County, New York, contended that their property values had been damaged by MTBE pollution. Their expert was prepared to testify that property values had declined 15% based ...
In the MTBE mass tort litigation, In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., 2008 U.S. Dist. LEXIS 44216 (S.D.N.Y. June 4, 2008), homeowners in a small town in Orange County, New York, contended that their property values…
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Sanctions — Settlement & Mootness

Fleming & Assoc’s v. Newby & Tittle, 2008 U.S. App. LEXIS 11764 (5th Cir. May 30, 2008) presented the following factual scenario: September 14, 2006 — District Court issues order sanctioning plaintiffs’ counsel “for changing the [plaintiffs’] expert witness report” and orders reimbursement of certain defendants’ attorneys' ...
Fleming & Assoc’s v. Newby & Tittle, 2008 U.S. App. LEXIS 11764 (5th Cir. May 30, 2008) presented the following factual scenario: September 14, 2006 — District Court issues order sanctioning plaintiffs’ counsel “for changing the [plaintiffs’] expert witness report”…
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RICO — Plaintiff Need Not Have Relied on Mail Fraud If It Was in Fact Injured as a Result of the Fraud

From the Supreme Court's decision in Bridge v. Phoenix Bond & Indem. Co., 2008 U.S. LEXIS 4703 (U.S. June 9, 2008): 1. First Party Reliance Not Required. “[A] plaintiff asserting a RICO claim predicated on mail fraud need not show, either as an element of its claim or as a prerequisite to establishing proximate causation, ...
From the Supreme Court’s decision in Bridge v. Phoenix Bond & Indem. Co., 2008 U.S. LEXIS 4703 (U.S. June 9, 2008): 1. First Party Reliance Not Required. “[A] plaintiff asserting a RICO claim predicated on mail fraud need not show,…
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Expert Opinions Not Disclosed in Report — Admitted Anyway

Rule No. 1: Know your Judge. Under Fed.R.Civ.P. 37(c)(1), if a party fails to disclose expert opinions or exhibits in his or her Rule 26(a)(2)(B) report, the undisclosed matter is automatically excluded at trial, unless there is "substantial justification" for the failure to disclose or the "failure is harmless." That rule of exclusion is often strictly enforced. ...
Rule No. 1: Know your Judge. Under Fed.R.Civ.P. 37(c)(1), if a party fails to disclose expert opinions or exhibits in his or her Rule 26(a)(2)(B) report, the undisclosed matter is automatically excluded at trial, unless there is “substantial justification” for…
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§ 1927 Sanctions Not Precluded but Generally Inappropriate for Discovery Abuse Subject to Rule 37

From New England Surfaces v. E. I. DuPont de Nemours & Co., , 2008 U.S. Dist. LEXIS 43530 (D. Me. June 3, 2008): Unlike the inherent power, the Supreme Court and the First Circuit have not instructed that § 1927 can only be used when the Rules do not cover the conduct. Thus, the failure to invoke the Rules when they are available does ...
From New England Surfaces v. E. I. DuPont de Nemours & Co., , 2008 U.S. Dist. LEXIS 43530 (D. Me. June 3, 2008): Unlike the inherent power, the Supreme Court and the First Circuit have not instructed that § 1927…
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Spoliation — Not the Kind of Testimony You Want a Client to Give

From Brown v. Brown, 2008 Bankr. LEXIS 1503 (Bankr. D. N.H. May 19, 2008): Defense witness No. 1 testified: Q. And--and you have no documents because you--you don't retain documents. A. No. Q. You discard them. A. Yes. Q. And since the commencement of this litigation you continued to discard documents. < ...
From Brown v. Brown, 2008 Bankr. LEXIS 1503 (Bankr. D. N.H. May 19, 2008): Defense witness No. 1 testified: Q. And–and you have no documents because you–you don’t retain documents. A. No. Q. You discard them. A. Yes. Q. And…
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Failure to Provide Notice of Rule 45 Subpoenas and to Provide Copies of Documents Received Is Sanctionable under the Inherent Power of the Court

From Judson Atkinson Candies, Inc. v. Dhimantec, 2008 U.S. App. LEXIS 11771 (7th Cir. June 3, 2008): The facts strongly suggest that Judson Atkinson was less than forthright in its use of third-party subpoenas. First, defense counsel was not provided with copies of the subpoenas. Then, although Judson Atkinson began receiving documents i ...
From Judson Atkinson Candies, Inc. v. Dhimantec, 2008 U.S. App. LEXIS 11771 (7th Cir. June 3, 2008): The facts strongly suggest that Judson Atkinson was less than forthright in its use of third-party subpoenas. First, defense counsel was not provided…
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Factors in Setting Supersedeas Bond under Fed.R.Civ.P. 62(d) — District Court Jurisdiction to Enforce Judgment After Notice of Appeal

From Dell, Inc. v. Advicon Computer Servs., Inc., 2008 U.S. Dist. LEXIS 40881 (E.D. Mich. May 22, 2008): The Sixth Circuit has explained that this Rule "entitles a party who files a satisfactory supersedeas bond to a stay of money judgment as a matter of right." Arban v. West Pub. Corp., 345 F.3d 390, 409 (6th Cir. 2003). The amo ...
From Dell, Inc. v. Advicon Computer Servs., Inc., 2008 U.S. Dist. LEXIS 40881 (E.D. Mich. May 22, 2008): The Sixth Circuit has explained that this Rule “entitles a party who files a satisfactory supersedeas bond to a stay of money…
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Spoliation — State v. Federal Law

The Sixth Circuit, the lone Court of Appeals to hold that state law governs punishment for spoliation in federal court (see our posts of July 18, 2007, and September 28, 2007), seems to have abandoned that position — wisely — while acknowledging that in the past it has adhered to the contrary view and continuing to assert that: “We are bound by these decision ...
The Sixth Circuit, the lone Court of Appeals to hold that state law governs punishment for spoliation in federal court (see our posts of July 18, 2007, and September 28, 2007), seems to have abandoned that position — wisely —…
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Fraudulent Concealment / Fraudulent Misrepresentation Claims Dismissed as Equivalent to Spoliation Claim Prohibited in New York

From IDT Corp. v. Morgan Stanley Dean Witter & Co., 2008 N.Y. Misc. LEXIS 2721 (Sup. Ct. New York County, April 4, 2008): This Court is constrained to follow Ortega v. City of New York, and find that these causes of action for fraud and fraudulent concealment are essentially third party spoliation claims. Spoliation has been defined as " ...
From IDT Corp. v. Morgan Stanley Dean Witter & Co., 2008 N.Y. Misc. LEXIS 2721 (Sup. Ct. New York County, April 4, 2008): This Court is constrained to follow Ortega v. City of New York, and find that these causes…
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Recent Posts

Rule 11 and § 1927 Sanctions — Jurisdiction to Sanction Survives Demise of Case — Rule 11 Sanctions Require Both a Baseless Pleading And an Unreasonable Inquiry (The Latter of Which May Be Inferable from the Former) — Amount of Time Available Affects Analysis of What Investigation Is Reasonable — Meaning of “Bad Faith” for § 1927 Sanctions in Ninth Circuit

Today Is The 24th Anniversary Of The Firm

RICO Person vs. Enterprise: Subsidiary in Typical Corporate Structure Does Not Control Parent And Therefore Does Not Conduct Parent’s Affairs

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

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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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