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 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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Remand Order under 28 U.S.C. § 1447(c) Is “Dispositive” — Magistrate Judge’s Decision Is Subject to De Novo Review by District Court

From Williams v. Beemiller, Inc., 2008 U.S. App. LEXIS 11276 (2d Cir. May 28, 2008): The question of whether a magistrate judge may order a case remanded to state court under § 1447(c) is one of first impression in this Circuit. All three of our sister circuits that have considered the matter have concluded that such orders are disposit ...
From Williams v. Beemiller, Inc., 2008 U.S. App. LEXIS 11276 (2d Cir. May 28, 2008): The question of whether a magistrate judge may order a case remanded to state court under § 1447(c) is one of first impression in this…
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Why Sur-Replies Are Disfavored — Good Quote

From Wood v. B.C. Daniels, Inc., 2008 U.S. Dist. LEXIS 40955 (S.D. Ala. May 21, 2008): [T]he filing of sur-replies is discouraged because of the inefficiencies inherent in an interminable thrust-and-parry debate between the parties.... ...
From Wood v. B.C. Daniels, Inc., 2008 U.S. Dist. LEXIS 40955 (S.D. Ala. May 21, 2008): [T]he filing of sur-replies is discouraged because of the inefficiencies inherent in an interminable thrust-and-parry debate between the parties….
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Securities — No Private Right of Action for Money Damages under § 13(d) — Damages Remedy Provided by § 18(a)

From Motient Corp. v. Dondero, 2008 U.S. App. LEXIS 11380 (5th Cir. Mary 27, 2008): No other Circuit has found a private right of action for money damages under Section 13(d) [15 U.S.C. § 78m(d)]. The Second Circuit held that Section 13(d) does not provide a damages remedy to issuers. Hallwood Realty Partners, L.P. v. Gotham Partners ...
From Motient Corp. v. Dondero, 2008 U.S. App. LEXIS 11380 (5th Cir. Mary 27, 2008): No other Circuit has found a private right of action for money damages under Section 13(d) [15 U.S.C. § 78m(d)]. The Second Circuit held that…
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Recent Posts

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

Supreme Court: Obtaining a Preliminary Injunction Does Not Render the Plaintiff a “Prevailing Party” Entitled to Attorney’s Fees — Must Win “Enduring Relief” On The Merits From A Judicial Order — Extraneous Events, Like Legislation, That Preserve The Outcome And Moot The Lawsuit Do Not Turn The Plaintiff into A Prevailing Party (Note, However, That A Defendant Need Not Obtain A Favorable Judgment On The Merits In Order To Be A “Prevailing Party”)

Supreme Court: When A Plaintiff Amends The Complaint To Delete The Federal-Law Claims That Enabled Removal To Federal Court, Leaving Only State-Law Claims, The Federal Court Loses Supplemental Jurisdiction, And The Case Must Be Remanded To State Court

Supreme Court: A Rule 41(a) Voluntary Dismissal Without Prejudice = A Final Proceeding Within Rule 60(b) — Advisory Committee Notes Are “A Reliable Source Of Insight Into The Meaning Of A Rule” — Prior to Dismissal or Entry of Judgment, A District Court May Always Rehear and Reconsider Prior Rulings

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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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