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

Computer Crash as Spoliation (Part 3)

Whether a computer crash may constitute spoliation has been discussed in previous posts of June 29 and March 5, 2007. In this installment, the plaintiff in Orrell v. Motorcarparts of Am., Inc., 2007 U.S. Dist. LEXIS 89524 (W.D. N.C. Dec. 5, 2007), was once again not exactly pristine in preserving evidence. Among other things, she used the “Evidence Elimin ...
Whether a computer crash may constitute spoliation has been discussed in previous posts of June 29 and March 5, 2007. In this installment, the plaintiff in Orrell v. Motorcarparts of Am., Inc., 2007 U.S. Dist. LEXIS 89524 (W.D. N.C. Dec.…
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12(b)(6) Motions — Documents That May Be Considered

The critical issue on many motions to dismiss concerns just what extra-complaint documents the court may properly consider. Perhaps the most expansive formulation is employed in securities actions. The following is taken from Securities and Exchange Commission v. Power, 2007 U.S. Dist. LEXIS 87632 (S.D.N.Y. Nov. 27, 2007): On a motion t ...
The critical issue on many motions to dismiss concerns just what extra-complaint documents the court may properly consider. Perhaps the most expansive formulation is employed in securities actions. The following is taken from Securities and Exchange Commission v. Power, 2007…
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Sovereign Immunity — FDCPA

Can the federal government be sued under the Fair Debt Collection Practices Act for its efforts to collect student loans? Deciding this issue of first impression, the Fifth Circuit ruled negatively in Wagstaff v. U.S. Dep’t of Educ., 2007 U.S. App. LEXIS 28001 (Dec. 4, 2007), reasoning that the FDCPA lacks the prerequisite — a statutory provision “uneq ...
Can the federal government be sued under the Fair Debt Collection Practices Act for its efforts to collect student loans? Deciding this issue of first impression, the Fifth Circuit ruled negatively in Wagstaff v. U.S. Dep’t of Educ., 2007 U.S.…
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Attorney-Client Privilege — Subject Matter Waiver & In-House Counsel — How Far Does Seagate Go?

Our post of August 27, 2007, reported the Federal Circuit’s holding in In re Seagate Tech., LLC, 2007 U.S. App. LEXIS 19768 (Fed. Cir. Aug. 20, 2007), that — in a case charging willful infringement — the subject matter waiver effected by asserting the defense of advice of counsel was limited to the advice of opinion counsel (the pre-litigation counsel o ...
Our post of August 27, 2007, reported the Federal Circuit’s holding in In re Seagate Tech., LLC, 2007 U.S. App. LEXIS 19768 (Fed. Cir. Aug. 20, 2007), that — in a case charging willful infringement — the subject matter waiver…
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Senate Passes Bill to Allow Televising of Supreme Court Proceedings

Download associated file: S 344.pdf  On December 6, 2007, the Senate Judiciary Committee passed S.344 -- a bill to permit the televising of Supreme Court proceedings. It is attached. ...
Download associated file: S 344.pdf  On December 6, 2007, the Senate Judiciary Committee passed S.344 — a bill to permit the televising of Supreme Court proceedings. It is attached.…
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The Profession — The Wolters Sanctions Case

District Judge Harold Baer, Jr.’s opinion in Wolters Kluwer Fin. Servs. Inc. v. Scivantage, 2007 U.S. Dist. LEXIS 88052 (S.D.N.Y. Nov. 29, 2007), is worth reading. The findings are extensive but it is the analytical framework that merits attention. It is refreshing to abandon cynicism about the profession and to focus every once in a while on what the pra ...
District Judge Harold Baer, Jr.’s opinion in Wolters Kluwer Fin. Servs. Inc. v. Scivantage, 2007 U.S. Dist. LEXIS 88052 (S.D.N.Y. Nov. 29, 2007), is worth reading. The findings are extensive but it is the analytical framework that merits attention. It…
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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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Recent Posts

Spoliation: Dismissal Under Rule 37(e)(2) and Monetary Sanctions Under Rule 37(e)(1), Implicitly Reading The “Or” Between 37(e)(1) and 37(e)(2) As Conjunctive, Not Disjunctive — Clear Error Standard of Review for District Court’s Intent (= Bad Faith) Finding under 37(e)(2)(C) — Additional Monetary Sanctions Imposed on Claimants under 28 U.S.C. § 1927 and Rule 37(a)(5) — No Right to Jury Determination of Intent under Rule 37(e)(2) — “Substantially Justified” in Rule 37(a)(5) Has Same Meaning As In Equal Access to Justice Act and Thus Rule 11 — Meaning of “Unreasonable and Vexatious” in 7th Circuit

nherent Power Sanction of Dismissal — Preponderance of the Evidence Burden of Proof, Not Clear and Convincing Evidence (7th Circuit)

§ 1927 Sanctions — Must A Lawyer Who Unreasonably and Vexatiously Multiplies Federal Court Proceedings Be Acting “As An Attorney” When Committing the Misconduct To Be Subject to Sanction under § 1927?

Rule 37 Sanctions — Unfamiliarity With Litigation Process Does Not Excuse Intentional Disregard of Court Order — Also Affirming Rule 26(g) Sanctions on Clients and Counsel for False Representations That All Responsive Documents Had Been Produced

Supreme Court: Notice of Appeal Filed After The Original Deadline But Before Reopening by The District Court Is Timely — It Relates Forward to The Date of The Order Making The Appeal Possible — Second Notice of Appeal After Reopening Unnecessary

Rule 37 Default Judgment: Second Circuit’s Four-Factor Test for Imposing Defaults and Three-Factor Test for Lifting Them

Rule 37 Default Judgment — Tenth Circuit Multifactor Test Is Not Exhaustive But a Non-Exclusive List of “Sometimes-Helpful Criteria Or Guide Posts”— Appeal from Preliminary Injunction Mooted by Entry of Permanent Injunction — Difficulty in Collecting Damages Award May Equal Irreparable Injury — A Monetary Award For Past Conduct Does Not Preclude A Permanent Injunction Against Similar Wrongful Conduct Likely To Occur In The Future

RICO: Cover-Up Within Limitations Period of Untimely RICO Violation “Was Merely A Continuation” Of The Original Injury And Could Not Be Used “As A ‘Bootstrap’ To Salvage [The] Time-Barred Claims–Declining to Apply Pinkerton Doctrine to Civil RICO Claims

Inherent Power — Circumstantial Evidence — Fact That Bad Faith May Be Shown by Establishing That Conduct Was So Egregious It Was Necessarily Committed in Bad Faith Does Not Mean That Bad Faith Must Be The Sole Explanation for The Bad Conduct

RICO Causation: Testing Labs’ Misstatements As to Alcohol Tests’ Efficacy Not Communicated to Plaintiffs’ Employers Did Not Cause Plaintiffs’ Professional Harm

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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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