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

Contempt — Enforcement of Obey-the-Law Consent Decree — Issue of First Impression

As now-Judge Martin Glenn pointed out in a valuable paper on Civil and Criminal Contempt he prepared for the Federal Bar Council two years ago, there is a split in the Circuits as to whether violation of a consent decree that simply tracks the language of a statute may be punished by contempt. The Eleventh Circuit says no (SEC v. Smyth, 420 F.3d 1225, 1233 n.14 (11 ...
As now-Judge Martin Glenn pointed out in a valuable paper on Civil and Criminal Contempt he prepared for the Federal Bar Council two years ago, there is a split in the Circuits as to whether violation of a consent decree…
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Sanctions — District Court Must Decide Pending Rule 11 Motion before Entering Final Judgment

The Third Circuit held in Gary v. Braddock Cemetery, 2008 U.S. App. LEXIS 2533 (3d Cir. Feb. 5, 2008) that it is error for a District Court not to resolve a pending Rule 11 (or, by implication, any other sanctions motion) prior to entering final judgment. The Third Circuit has a unique a supervisory rule "that counsel seeking Rule 11 sanctions must file thei ...
The Third Circuit held in Gary v. Braddock Cemetery, 2008 U.S. App. LEXIS 2533 (3d Cir. Feb. 5, 2008) that it is error for a District Court not to resolve a pending Rule 11 (or, by implication, any other sanctions…
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The Impact of CAFA on the Federal Courts — FJC Study

Download associated file: FJC CAFA Study.pdf  Attached is the April 2007 Federal Judicial Center Report, The Impact of the Class Action Fairness Act of 2005 on the Federal Courts by Tom Willging and Emery Lee of the FJC. One of a series of reports prepared for the ...
Download associated file: FJC CAFA Study.pdf  Attached is the April 2007 Federal Judicial Center Report, The Impact of the Class Action Fairness Act of 2005 on the Federal Courts by Tom Willging and Emery Lee of the FJC. One…
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Connecticut State Court Recognizes Tort of Intentional Spoliation of Evidence by Non-Party

The Connecticut Superior Court recognized a cause of action for third-party intentional spoliation of evidence in Diana v. NetJets Servs., Inc.,2007 Conn. Super. LEXIS 3491 (Conn. Super. Dec. 27, 2007), a personal injury action brought by an individual injured on airport property against, inter alia, the airport owner, which had received an incident report ab ...
The Connecticut Superior Court recognized a cause of action for third-party intentional spoliation of evidence in Diana v. NetJets Servs., Inc.,2007 Conn. Super. LEXIS 3491 (Conn. Super. Dec. 27, 2007), a personal injury action brought by an individual injured on…
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How Many Points to Raise on Appeal

From Gary v. Braddock Cemetery, 2008 U.S. App. LEXIS 2533 (3d Cir. Feb. 5, 2008): With a decade and a half of federal appellate court experience behind me, I can say that even when we reverse a trial court it is rare that a brief successfully demonstrates that the trial court committed more than one or two reversible errors. I have said in ...
From Gary v. Braddock Cemetery, 2008 U.S. App. LEXIS 2533 (3d Cir. Feb. 5, 2008): With a decade and a half of federal appellate court experience behind me, I can say that even when we reverse a trial court it…
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Limits of Expert Testimony

Highland Capital Mgmt., LP v. Schneider, 2008 U.S. Dist. LEXIS 7019 (S.D.N.Y. Jan. 28, 2008): 1. No Testimony as to Witness Credibility. “[Expert] Duval's opinion as to the credibility of witnesses is inadmissible.... [T]he credibility of witnesses is exclusively for the determination of the jury.... Such subjective review of ...
Highland Capital Mgmt., LP v. Schneider, 2008 U.S. Dist. LEXIS 7019 (S.D.N.Y. Jan. 28, 2008): 1. No Testimony as to Witness Credibility. “[Expert] Duval’s opinion as to the credibility of witnesses is inadmissible…. [T]he credibility of witnesses is exclusively for…
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Exclusion of Hearsay Dooms Death Case

Facts known only to a decedent can be deadly difficult to prove. The plaintiff’s decedent in Brown v. SmithKline Beecham Corp., 2008 U.S. Dist. LEXIS 5091 (N.D. Ill. Jan. 18, 2008), died as a result of a stroke that his widow attributed to his ingestion of Contac.® It was essential on the issue of causation to prove ingestion within 72 hours of death, but the p ...
Facts known only to a decedent can be deadly difficult to prove. The plaintiff’s decedent in Brown v. SmithKline Beecham Corp., 2008 U.S. Dist. LEXIS 5091 (N.D. Ill. Jan. 18, 2008), died as a result of a stroke that his…
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Email Evidence — Admissibility of Text Messages

The admissibility of text messages from the defendant to the victim was a key issue in State v. Espiritu, 2008 Haw. LEXIS 15 (Haw. Sup. Ct. Jan. 28, 2008), an appeal from a conviction for attempted murder and other offenses. The defendant conceded that the text messages “would arguably be admissible as an exception to the hearsay rule as an admission by a party-o ...
The admissibility of text messages from the defendant to the victim was a key issue in State v. Espiritu, 2008 Haw. LEXIS 15 (Haw. Sup. Ct. Jan. 28, 2008), an appeal from a conviction for attempted murder and other offenses.…
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Privilege Developments in the Corporate Context — 2008

A new article discussing recent developments in attorney-client privilege and work product protection in the corporate context has been posted on the Recent Articles page. It can be found at http://www.josephny_live.com/articles/viewarticle.php?54. ...
A new article discussing recent developments in attorney-client privilege and work product protection in the corporate context has been posted on the Recent Articles page. It can be found at http://www.josephny_live.com/articles/viewarticle.php?54.
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No Rule 16(f) Sanctions for Prompt Dismissal of Case Following Pretrial Conference

Some good deeds go unpunished. The plaintiff in Allen v. Tribune N.Y. Newspaper Holdings, LLC, 246 F.R.D. 465 (S.D.N.Y. 2007), dismissed a weak case and managed not to get sanctioned as a result of dismissing it. Several hours after an initial status conference before Judge Jed S. Rakoff, plaintiffs’ voluntarily dismissed their complaint. (It must have been som ...
Some good deeds go unpunished. The plaintiff in Allen v. Tribune N.Y. Newspaper Holdings, LLC, 246 F.R.D. 465 (S.D.N.Y. 2007), dismissed a weak case and managed not to get sanctioned as a result of dismissing it. Several hours after an…
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Recent Posts

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

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

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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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