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

August 2009

Because of Reputational Impact, Sanction of Reprimand Is a Sufficient Deterrent without an Award of Attorneys’ Fees

From Gary v. Braddock Cemetery, 2009 U.S. App. LEXIS 12431 (3d Cir. June 8, 2009): Appellants ... argue that the District Court abused its discretion by declining to impose monetary sanctions because the mere public filing of the R&R [Report and Recommendations] is not sufficient to "deter baseless filings." Although we may well have bee ...
From Gary v. Braddock Cemetery, 2009 U.S. App. LEXIS 12431 (3d Cir. June 8, 2009): Appellants … argue that the District Court abused its discretion by declining to impose monetary sanctions because the mere public filing of the R&R [Report…
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Expert Testimony on “Zone of Insolvency” Rejected under Daubert as Unreliable — Phrase Has No Accepted Meaning and There Is No Accepted Methodology to Test It

From Kipperman v. Onex Corp., 2009 U.S. Dist. LEXIS 71666 (N.D. Ga. Aug. 13, 2009): Logue testified that ABCO/Magnatrax was in a "zone of insolvency" at the time of the ABCO and Republic acquisitions. *** Defendants contend that this testimony is inadmissible, in part, because there is no scientifically accepted definition of, or methodol ...
From Kipperman v. Onex Corp., 2009 U.S. Dist. LEXIS 71666 (N.D. Ga. Aug. 13, 2009): Logue testified that ABCO/Magnatrax was in a “zone of insolvency” at the time of the ABCO and Republic acquisitions. *** Defendants contend that this testimony…
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RICO/PSLRA Bar — Whether LLC Interests Constitute Securities = Fact Question — Measuring Time for 2-Year Continuity Requirement

From Automated Teller machine Advantage LLC v. Moore, 2009 U.S. Dist. LEXIS 68724 (S.D.N.Y. Aug. 6, 2009): [LLC Interests as Triggering PSLRA Bar] The PSLRA "bars private causes of action under RICO for predicate acts that describe conduct that would otherwise be actionable as securities fraud." Thomas H. Lee Equity F ...
From Automated Teller machine Advantage LLC v. Moore, 2009 U.S. Dist. LEXIS 68724 (S.D.N.Y. Aug. 6, 2009): [LLC Interests as Triggering PSLRA Bar] The PSLRA “bars private causes of action under RICO for predicate acts that describe conduct that would…
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Sarbanes-Oxley — Substantive Requirements Necessary to Establish a Whistleblower Claim

From Van Asdale v. Int’l Game Tech., 2009 U.S. App. LEXIS 18037 (9th Cir. Aug. 13, 2009): This case presents our first opportunity to examine the substantive requirements necessary to establish a claim under the whistleblower-protection provisions of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A. *** We observe at the outset that th ...
From Van Asdale v. Int’l Game Tech., 2009 U.S. App. LEXIS 18037 (9th Cir. Aug. 13, 2009): This case presents our first opportunity to examine the substantive requirements necessary to establish a claim under the whistleblower-protection provisions of the Sarbanes-Oxley…
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Specific Performance of Settlement Agreement

From Nordica S.p.A. v. ICON Health & Fitness, 2009 U.S. Dist. LEXIS 71385 (D.N.H. Aug. 11, 2009): Under both New Hampshire and Utah law, specific performance is an adequate remedy when one party is in breach of a settlement agreement. Poland v. Twomey, 937 A.2d 934, 937 (N.H. 2007) (specific performance is appropriate relief for ...
From Nordica S.p.A. v. ICON Health & Fitness, 2009 U.S. Dist. LEXIS 71385 (D.N.H. Aug. 11, 2009): Under both New Hampshire and Utah law, specific performance is an adequate remedy when one party is in breach of a settlement agreement.…
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Internet Printout of Immunization Schedule Unverified by Medical Professional Not Subject to Judicial Notice

From TR v. LVM, 209 P.3d 879 (Wyo. Sup. Ct. 2009): Appellant, T.R. (Mother), appeals a district court's decision and order finding her unfit and appointing Appellees, L.V.M. and A.R.M. (Grandparents), who are the children's paternal grandparents, guardians of her two minor children, A.R. and C.R. *** Mother first contends that th ...
From TR v. LVM, 209 P.3d 879 (Wyo. Sup. Ct. 2009): Appellant, T.R. (Mother), appeals a district court’s decision and order finding her unfit and appointing Appellees, L.V.M. and A.R.M. (Grandparents), who are the children’s paternal grandparents, guardians of her…
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Repeated Defragging May Constitute Spoliation — Defragging Destroys Evidence of Hard-Drive Wiping — Permissible vs. Impermissible Defragging

From Trustees of Chi. Plastering Institute v. Village of Elwood, 2009 U.S. Dist. LEXIS 42952 (N.D. Ill. May 20, 2009): Defendant hired an expert who admitted at her deposition that there were wiping programs installed on computers belonging to defendant Alberts and Donchez. She also admitted in her deposition that she could not ascertai ...
From Trustees of Chi. Plastering Institute v. Village of Elwood, 2009 U.S. Dist. LEXIS 42952 (N.D. Ill. May 20, 2009): Defendant hired an expert who admitted at her deposition that there were wiping programs installed on computers belonging to defendant…
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Scope of Review of Magistrate Judge Orders under 28 U.S.C. § 636(b)(1)(A) — Monetary Sanctions Issued Pursuant to Rule 30(g)

From Edmonds v. Seavey, 2009 U.S. Dist. LEXIS 66012 (S.D.N.Y. July 19, 2009): Under 28 U.S.C. § 636(b)(1)(A), "a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court," with the exception of certain enumerated dispositive motions. A magistrate's order relating to a non-dispositive pret ...
From Edmonds v. Seavey, 2009 U.S. Dist. LEXIS 66012 (S.D.N.Y. July 19, 2009): Under 28 U.S.C. § 636(b)(1)(A), “a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court,” with the exception of…
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Electronic Discovery — Litigation Hold Letters, Although Privileged or Work Product, Are Discoverable on a Prima Facie Showing of Spoliation

Electronic Discovery — Litigation Hold Letters, Although Privileged or Work Product, Are Discoverable on a Prima Facie Showing of Spoliation From Major Tours, Inc. v. Colorel, 2009 U.S. Dist. LEXIS 68128 (D.N.J. Aug. 4, 2009): As a general matter hold letters are not discoverable, particularly when a party has made an adequate showing ...
Electronic Discovery — Litigation Hold Letters, Although Privileged or Work Product, Are Discoverable on a Prima Facie Showing of Spoliation From Major Tours, Inc. v. Colorel, 2009 U.S. Dist. LEXIS 68128 (D.N.J. Aug. 4, 2009): As a general matter hold…
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Broad Arbitration Clause Confers on Arbitrator the Power to Award Compensatory Sanctions, Even If Contract Provides that Each Party Bears Own Fees

From ReliaStar Life Ins. Co. of N.Y. v. EMC Nat’l Life Co., 564 F.3d 81 (2d Cir. 2009): Where an arbitration clause is broad, arbitrators have the discretion to order such remedies as they deem appropriate.*** This is because it is “not the role of the courts to undermine the comprehensive grant of authority to arbitrators by prohibi ...
From ReliaStar Life Ins. Co. of N.Y. v. EMC Nat’l Life Co., 564 F.3d 81 (2d Cir. 2009): Where an arbitration clause is broad, arbitrators have the discretion to order such remedies as they deem appropriate.*** This is because it…
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Recent Articles

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

Supreme Court: Standing — When The Government Prohibits Or Impedes Company A from Using Company B’s Product, Both Are Objects of the Government’s Action And Have Standing to Contest It — “To Demonstrate Standing, Plaintiffs Must Answer A Basic Question—‘What’s It To You?’” (Good Quote) — Expert Evidence Not Required to Establish Standing — “Judges Are Not Required To Exhibit A Naiveté From Which Ordinary Citizens Are Free’” (Good Quote)

Rule 37(d) Sanctions — For Failure to Serve Answers, Objections, Or Written Response to Discovery Requests — Are Not Limited to Intentional Misconduct; Even Innocent Mistakes May Be Covered

Sanctions: (1) Rule 11 Does Not Apply to Litigation Papers Initially Filed in State Court — Only Reaffirmance in Federal Court Post-Removal Is Subject to Sanction — (2) “The Fact That A Legal Theory Is A Long-Shot Does Not Necessarily Mean It Is Sanctionable” (Good Quote)

Supreme Court: Relief under Rule 60(b)(6) Requires Extraordinary Circumstances Even If It Is Invoked to Allow Amendment of The Complaint–Rule 15’s Liberal Approach to Amendment Does Not Change That (Reversing Second Circuit)

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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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