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

Qui Tam Actions — Sanctions

The issue in United States v. Atkinson, 2007 U.S. Dist. LEXIS 88435 (E.D. Pa. Dec. 3, 2007), was the appropriateness of sanctions under the statutory sanctions provision of the False Claims Act, 31 U.S.C. § 3730(d)(4). The prevailing defendants requested an award of attorneys' fees and expenses at the conclusion of 13 years of litigation. The language of ...
The issue in United States v. Atkinson, 2007 U.S. Dist. LEXIS 88435 (E.D. Pa. Dec. 3, 2007), was the appropriateness of sanctions under the statutory sanctions provision of the False Claims Act, 31 U.S.C. § 3730(d)(4). The prevailing defendants requested…
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Merely Notarizing Email Does Not Render It Non-Hearsay

The bank in Shah v.Flagstar Bank, 2007 Mich. App. LEXIS 2678 (Mich. App. Nov. 29, 2007), a foreclosure action, moved for summary judgment. In order to prove non-payment, it offered a letter it sent to homeowners referencing their non-payment, but the court excluded the letter as hearsay when it was offered to establish the homeowners' failure to make payment ...
The bank in Shah v.Flagstar Bank, 2007 Mich. App. LEXIS 2678 (Mich. App. Nov. 29, 2007), a foreclosure action, moved for summary judgment. In order to prove non-payment, it offered a letter it sent to homeowners referencing their non-payment, but…
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No Subject Matter Jurisdiction Required for Criminal Contempt

The Supreme Court has ruled that a federal court must have subject matter jurisdiction to impose civil contempt sanctions but not Rule 11 sanctions. Compare U.S. Catholic Conference v. Abortion Rights Mobilization, Inc., 87 U.S. 72, 76-80 (1988) (civil contempt) with Willy v. Coastal Corp., 503 U.S. 131 (1992) (Rule 11). What about criminal contempt ...
The Supreme Court has ruled that a federal court must have subject matter jurisdiction to impose civil contempt sanctions but not Rule 11 sanctions. Compare U.S. Catholic Conference v. Abortion Rights Mobilization, Inc., 87 U.S. 72, 76-80 (1988) (civil contempt)…
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Contractual Spoliation

A contractual duty to preserve data may suffice to trigger spoliation sanctions if the data are destroyed in violation of the contract -- at least if another party to the contract is pursuing the claim. The Asset Purchase Agreement in In re: Quintus Corp. (Avaya, Inc. v. Gwynne), 2007 U.S. Dist. LEXIS 87628 (D. Del. Nov. 29, 2007), required the purchaser to ...
A contractual duty to preserve data may suffice to trigger spoliation sanctions if the data are destroyed in violation of the contract — at least if another party to the contract is pursuing the claim. The Asset Purchase Agreement in…
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Rule 502 in Congress

Federal Rule of Evidence 502 (Attorney-Client Privilege and Work Product; Limitations on Waiver) has a real prospect of being enacted in this session of Congress, which ends in mid-December. The Rule under consideration is substantially identical to that passed by the Advisory Committeee. ...
Federal Rule of Evidence 502 (Attorney-Client Privilege and Work Product; Limitations on Waiver) has a real prospect of being enacted in this session of Congress, which ends in mid-December. The Rule under consideration is substantially identical to that passed by…
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Restyled Federal Rules of Civil Procedure Go Into Effect Today

Download associated file: Restyled Fed R Civ P.pdf  Restyling the Federal Rules of Civil Procedure is like wrapping drapes around nude statutes or painting abs on the Venus de Milo. Nothing substantive changes but someone prefers the look. The new look — the text of t ...
Download associated file: Restyled Fed R Civ P.pdf  Restyling the Federal Rules of Civil Procedure is like wrapping drapes around nude statutes or painting abs on the Venus de Milo. Nothing substantive changes but someone prefers the look. The…
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Pleading in the Alternative — Judicial Admissions

Alternative & Inconsistent Pleading. Alternative and inconsistent pleading requires that you plead in the alternative. Mere inconsistency can be fatal. As the Ninth Circuit put it in Maloney v. Scottsdale Ins. Co., 2007 U.S. App. LEXIS 26639 (9th Cir. Nov. 14, 2007): “The Federal Rules of Civil Procedure allow parties to plead inconsistent factua ...
Alternative & Inconsistent Pleading. Alternative and inconsistent pleading requires that you plead in the alternative. Mere inconsistency can be fatal. As the Ninth Circuit put it in Maloney v. Scottsdale Ins. Co., 2007 U.S. App. LEXIS 26639 (9th Cir. Nov.…
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Final Judgments; Appealability; Fraudulent Concealment

If an action is dismissed in part with prejudice and in part without prejudice, can it be final for appeal purposes within 28 U.S.C. § 1291? Generally, the answer is “No” because the plaintiff is free to refile by amending (Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064 (4th Cir. 1993)). But the answer was “Yes” in GO Computer ...
If an action is dismissed in part with prejudice and in part without prejudice, can it be final for appeal purposes within 28 U.S.C. § 1291? Generally, the answer is “No” because the plaintiff is free to refile by amending…
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Work Product Protection — Non-Party’s Standing to Assert

Plaintiff One sues defendant. Plaintiff One then subpoenas the litigation consultant retained by Plaintiff Two, who also has a claim against the same defendant. As observed by Magistrate Judge Mikel Williams, “The literal language of the Rule [26(b)(3)] protects materials prepared for any litigation or trial only if they were prepared by or for a party to the su ...
Plaintiff One sues defendant. Plaintiff One then subpoenas the litigation consultant retained by Plaintiff Two, who also has a claim against the same defendant. As observed by Magistrate Judge Mikel Williams, “The literal language of the Rule [26(b)(3)] protects materials…
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Spoliation on Summary Judgment

Typically, we think about spoliation and its utility at trial — specifically, the impact of an adverse inference instruction. The issue in Hamilton v. Mount Sinai Hospital, 2007 U.S. Dist. LEXIS 85593 (S.D.N.Y. Nov. 21, 2007), was the impact of the spoliation inference at summary judgment. Magistrate Judge Gabriel W. Gorenstein summarized Second Circuit l ...
Typically, we think about spoliation and its utility at trial — specifically, the impact of an adverse inference instruction. The issue in Hamilton v. Mount Sinai Hospital, 2007 U.S. Dist. LEXIS 85593 (S.D.N.Y. Nov. 21, 2007), was the impact of…
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Recent Posts

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

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”)

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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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