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

Rule 103(b): If Court Denies Motion in Limine But Invites More Foundation at Trial, Is MIL Ruling “Definitive”? (Probably) — Emails Downloaded 16 Yrs Earlier from Unknown Computer by Unknown Person Who Could’ve Altered Them Not Authenticated

United States v. Johns, 2018 U.S. App. LEXIS 35543 (6th Cir. Dec. 19, 2018): This case is about two women, Johns and Westphal, who maintained a secret lesbian relationship for nearly a ...
United States v. Johns, 2018 U.S. App. LEXIS 35543 (6th Cir. Dec. 19, 2018): This case is about two women, Johns and Westphal, who maintained a secret lesbian relationship for nearly a year. When Westphal attempted to end the…
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Rule 803(6): Email from Ex-Opposing Lawyer Years after Litigation Ended, Solicited for Purposes of New Case, Not a Business Record (BR) of Soliciting Firm &, Even if BR of Sending Firm, Is Untrustworthy—R. 1006 Summary: Summed Data Must Be Admissible

Harpst v. George Fleming & Fleming & Assocs., 2018 Tex. App. LEXIS 10719 (Tex. Ct. App. Dec. 21, 2018): After a law firm settled tort claims against a drug manufacturer on behal ...
Harpst v. George Fleming & Fleming & Assocs., 2018 Tex. App. LEXIS 10719 (Tex. Ct. App. Dec. 21, 2018): After a law firm settled tort claims against a drug manufacturer on behalf of approximately 8,000 clients, about half the …
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Experts — Report to Contradict or Rebut Opposing Expert Must Be Served within 30 Days, Absent Court Order — General Discovery / Disclosure Deadline ≠ Relevant Court Order — Can’t Supplement with New Opinions Based on “Theories Evolv[ing]”

Rodgers v. Beechcraft Corp., 2018 U.S. App. LEXIS 35028 (10th Cir. Dec. 13, 2018): On March 17, 2013, James Rodgers and Christopher Evans were passengers on a Beech Premier 390 jet airp ...
Rodgers v. Beechcraft Corp., 2018 U.S. App. LEXIS 35028 (10th Cir. Dec. 13, 2018): On March 17, 2013, James Rodgers and Christopher Evans were passengers on a Beech Premier 390 jet airplane, flying from Tulsa, Oklahoma to South Bend,…
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Voicemail Authentication: Testimony from Person Leaving Message That It Is Her Voice & Accurately Reflects the Message She Left Suffices, Here Coupled with Phone Owner’s Response via Text

People v. Tetter, 2018 IL App (3d) 150243m 2018 Ill. App. LEXIS 519 (Ill. Ct. App. Jan. 31, 2018): [*P1]  Defendant, age 21 at the time, be ...
People v. Tetter, 2018 IL App (3d) 150243m 2018 Ill. App. LEXIS 519 (Ill. Ct. App. Jan. 31, 2018): [*P1]  Defendant, age 21 at the time, began a relationship with S.K. who represented herself to be 18. A jury…
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The 7 Most Important Developments in Federal Civil Procedure in 2018

     1.  Service is generally effected immediately upon filing papers on ECF (amended Fed. R. Civ. P. 5(b)(2)(E))      2.  A class action "proposed to be settled" must be brought to the attention of the District Judge for approval or dismissal, precluding the prior alternative of dismissing in federal court and refiling in state court f ...
1.  Service is generally effected immediately upon filing papers on ECF (amended Fed. R. Civ. P. 5(b)(2)(E))      2.  A class action "proposed to be settled" must be brought to the attention of the District Judge for approval or dismissal, precluding…
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Class Actions: Improper to Certify Class 10% of Whose Members Were Not Injured — Culling Them Out Cannot Be Left to Claims Administrator — Need to ID the Uninjured Predominates—Rules of Evidence Must Be Followed in Doing So (Circuit Split/Variance)

United Food & Commer. Workers Unions & Emplrs. Midwest Health Bens. Fund v. Warner Chilcott Ltd. (In re Asacol Antitrust Litig.), 907 F.3d 42 (1st Cir. 2018): ...
United Food & Commer. Workers Unions & Emplrs. Midwest Health Bens. Fund v. Warner Chilcott Ltd. (In re Asacol Antitrust Litig.), 907 F.3d 42 (1st Cir. 2018): Drug manufacturer Warner Chilcott Limited pulled one of its products — Asacol…
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The Court of Federal Claims Lacks Jurisdication over RICO Claims

Burmaster v. United States, 744 Fed.Appx. 699 (Fed. Cir. 2018): Footnote 1.  Burmaster’s complaint also sought treble damages under the Racketeer Influenced Corrupt Organizations (“RICO”) Act,
Burmaster v. United States, 744 Fed.Appx. 699 (Fed. Cir. 2018): Footnote 1.  Burmaster’s complaint also sought treble damages under the Racketeer Influenced Corrupt Organizations (“RICO”) Act, 18 U.S.C. § 1964(c). Suppl. J.A. at 2. The Claims Court held that…
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Summary Judgment: Evidentiary Issues Reviewed for Abuse of Discretion — Unsigned Dep. OK on SJ If No Inaccuracies Shown — Affidavit from Undisclosed Person Harmless Where Others Disclosed to Say Same Thing & No Deps Taken

PNC Equipment Finance v. Mariani, 2018 WL 6584123 (6th Cir. Dec. 13, 2018): Harry Carr (“Carr”) appeals the decision of the district court to grant the Motion for Summary Judgment (“Motion”) filed by Plaintiff PNC Equipment Finance, LLC (“PNCEF”) and to deny Carr’s Motion to Amend, Stay, or Vacate the district judge’s ...
PNC Equipment Finance v. Mariani, 2018 WL 6584123 (6th Cir. Dec. 13, 2018): Harry Carr (“Carr”) appeals the decision of the district court to grant the Motion for Summary Judgment (“Motion”) filed by Plaintiff PNC Equipment Finance, LLC (“PNCEF”) and…
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Summary Judgment Generally Inapt in Contract Case unless Language Is Unambiguous — Sending Budget to Client’s Carrier at Its Rates ≠ Agreement to Rates — Seeking Indemnification Waives Privilege as to Bills & Commc’ns Going to Fee Reasonableness

Summary Judgment Generally Inapt in Contract Case unless Language Is Unambiguous — Sending Budget to Carrier at Its Rates ≠ Agreement to Rates — By Seeking Indemnification ,Privilege Waived as to Bills & Communications Going to Reasonableness of Fees
Summary Judgment Generally Inapt in Contract Case unless Language Is Unambiguous — Sending Budget to Carrier at Its Rates ≠ Agreement to Rates — By Seeking Indemnification ,Privilege Waived as to Bills & Communications Going to Reasonableness of Fees Feld …
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“Costs” in Rule 41(d)—Which Allows Award If Plaintiff Dismissed Prior Action Asserting Same Claim against Same Def.—Includes Attorneys’ Fees (3-Way Cir. Split) — Derivative Action Rules Apply to LLCs, to Defense & Not Only If Board Malfeasance

Horowitz v. 148 South Emerson Assocs. LLC, 888 F.3d 13 (2d Cir. 2018): : Plaintiff-Appellant Montauk U.S.A., LLC ("Montauk") appeals ...
Horowitz v. 148 South Emerson Assocs. LLC, 888 F.3d 13 (2d Cir. 2018): : Plaintiff-Appellant Montauk U.S.A., LLC ("Montauk") appeals from (i) the district court's dismissal without prejudice of its Lanham Act claims and motion for preliminary…
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Recent Posts

Electronic Spoliation/Rule 37(e): (1) Finding of Recklessness But Neither Gross Negligence Nor Willfulness in Loss of Video Evidence Precludes Rule 37(e)(2)’s Severest Sanctions Because (i) No Intent to Deprive and (ii) Rule 37(e)(2) Displaces District Court’s Power to Invoke Inherent Power to Impose Those Sanctions — (2) Appellate Review = Abuse of Discretion, With The Caveat That Whether The District Court Applied The Correct Legal Standards Is Reviewed De Novo — (3) Inherent Power Is Often Available As An Alternate Source of Sanctioning Power But Can Be Limited by Rule or Statute, Something Which Courts Do Not Lightly Presume — (4) The Text of Rule 37(e)(2), As Confirmed by the Advisory Committee Note, Displaces Inherent Power to Impose the Sanctions Specified in the Rule or Any More Severe Sanctions — (5) “Intent to Deprive” in Rule 37(e)(2) = “The Willful Destruction Of Evidence With The Purpose Of Avoiding Its Discovery By An Adverse Party” — (6) Appellate Standing Conferred by Virtue of Issuance of Sanctions Regardless of Merits Outcome — (7) Value of Advisory Committee Notes in Interpreting Rules Enacted without Change Despite General Reticence to Rely on Legislative History

RICO: (1) Plaintiff Need Not Suffer Injury from Each Predicate Act to Establish Standing, And The Pattern May Include Predicates As to Which No Plaintiff Has Standing — (2) 7 Elements of a Civil RICO Claim (2d Circuit Articulation) Which Must Be Established As to Each Defendant — (3) Requirements of an Association-in-Fact Enterprise — (4) Each Defendant Must Personally Commit 2 or More Predicate Acts — (5) Pattern of Racketeering Activity: Horizontal and Vertical Elements — (6) No Requirement That All Members of a RICO Enterprise Joined at Inception — Can Join Over Time/Others Can Quit — (7) Cannot Charge 2 Predicate Acts Where One Action Violates Two Statutes — (8) A Footnote to Consider for Briefs: “Unless Otherwise Noted, When Quoting Judicial Decisions This Order Accepts All Alterations And Omits All Citations, Footnotes, And Internal Quotation Marks.”

For An Appeal to Be Timely, A Motion for Reconsideration in The District Court (A Rule 59(e) Motion) Must Be Filed, And Not Just Served within 30 Days of The Decision, to Toll The 30-Day Period for Filing An Appeal

There Is No Good-Faith Defense For Issuing An Overly Burdensome Subpoena

Purposes of Rule 37 and Section 1927 Sanctions

While Rule 11 Doesn’t Apply to Appellate Proceedings (Unless It Has Been Incorporated in Local Appellate Rules), Rule 11 Caselaw Is Looked to for Guidance in Interpreting Applicable Sanctions Powers on Appeal

Rule 11 Sanctions & Appellate Review: Abuse of Discretion Standard Applies Unless Sanctions Are Based Solely (Not Just in Part) on Legal Issues, in Which Case Review Is De Novo

Rule 37(b)(2)(A) Sanctions for Altering Expert’s 26(a)(2)(B) Report — Without the Expert’s Knowledge or Approval — by Converting It from PDF to Word, Changing Headings and Other Formatting, and Omitting a Page of Relevant Text and Appendices, Even Though Expert Testified That The Overall Substance of the Report Was Unchanged — Rule 37(b)(2)(A) Sanctions May Be Reversed If Failure to Comply with Discovery Order Was Due to Misunderstanding or Inability to Comply

Spoliation: Fed. R. Civ. P. 37(e) Imposes a Higher Standard — Intent — Than Fourth Circuit Law Previously Applied to Spoliation of Electronically-Stored Information (And Still Does As to Non-ESI) — Willfulness vs. Intent

Inherent Power and § 1927 Sanctions: Removal of counsel from case, referral for disciplinary action, and award of fees and costs for assaulting opposing counsel at deposition — Failure to request hearing waive any right to a hearing — Notice and opportunity to be heard required before sua sponte sanctions imposed, whether under Rule 11, the inherent power of the court or § 1927 — Notice may come from court or opposing counsel — Order imposing sanctions cannot provide notice of sanctions — Nature of bad faith requirement for inherent power sanctions: bad faith to obstruct the judicial process or bring about violation of a court order — Sanctions proceeding need not defer (Younger abstention) to disciplinary proceeding involving the same conduct — Sanctions proceeding doesn’t threaten to interfere with disciplinary proceeding — Why District Court is accorded significant deference in matters concerning attorney’s fees

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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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