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.
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10b-5 Count Requires PSLRA Sanctions Inquiry Even If Plaintiff Prevails on Others — Failure to Satisfy Rule 9(b) Not Necessarily Sanctionable — Position Supported by Some Authority and Not Foreclosed in Circuit Is Not Frivolous

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From Fishoff v. Coty Inc., 634 F.3d 647 (2d Cir. 2011):

Because Fishoff's initial complaint included a cause of action for violations of Section 10(b) of the Securities Exchange Act of 1934, pursuant to the terms of the Private Securities Litigation Reform Act ("PSLRA"), the district court was required at the close of litigation to enter findings on whether Fishoff's action violated Federal Rule of Civil Procedure 11. See 15 U.S.C. § 78u-4(c)(1) (providing that at the end of any private securities action, the district court must "include in the record specific findings regarding compliance by each party and each attorney representing any party with each requirement of Rule 11(b)"). The district court concluded that Fishoff [who prevailed on other counts] had not violated Rule 11..., and Coty appeals that finding.

*** The fact that a legal theory is a long-shot does not necessarily mean it is sanctionable. See Kropelnicki v. Siegel, 290 F.3d 118, 131 (2d Cir. 2002). The operative question is whether the argument is frivolous, i.e., the legal position has "no chance of success," and there is "no reasonable argument to extend, modify or reverse the law as it stands." Morley v. Ciba-Geigy Corp., 66 F.3d 21, 25 (2d Cir. 1995) (internal quotation marks omitted); see also ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 579 F.3d 143, 152 (2d Cir. 2009) ("The express congressional purpose of the PSLRA [sanctions] provision was to increase the frequency of Rule 11 sanctions in the securities context, and thus tilt the 'balance' toward greater deterrence of frivolous securities claims." (emphasis added)).

In this case, Fishoff argued before the district court, inter alia, that the options he was awarded were "securities" as that term is defined in the Securities Exchange Act of 1934. The district court concluded that Fishoff's "position was not without some support — albeit non-binding and unpersuasive." Fishoff v. Coty Inc., No. 09 Civ. 628, 2010 WL 305358, at *2 & n.18 (S.D.N.Y. Jan. 25, 2010) (noting that Fishoff cited a "host of cases" in support of his position). The district court further explained that, "while I found that Fishoff had failed to adequately plead scienter, this does not mean that Fishoff's claim had absolutely 'no chance' of success." Id. (footnotes omitted). We agree with the district court that Fishoff's arguments were non-frivolous; they were not foreclosed a priori by binding precedent even if they were unlikely to succeed, and Fishoff's position was not unsupported by case law even though the cases he cited were not binding on the court adjudicating his claims. We also agree with the district court that a party's failure to plead with the requisite particularity does not necessarily warrant sanctions. Accordingly, we conclude that the district court did not abuse its discretion in denying sanctions.

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Criminal Spoliation Can Be A Due Process Violation — Defendant Must Show That (1) The Evidence Had Exculpatory Value Before It Was Destroyed, (2) Defendant Is Unable to Obtain Comparable Evidence by Reasonable Means, and (3) Bad Faith Failure to Preserve

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Rule 37(c)(1) Sanctions: Substantial Justification or Harmless Error (Ninth Circuit Factors) — Erie: When State Supreme Court Has Not Squarely Addressed an Issue, Circuit Must Predict How It Would Rule, Using Intermediate Appellate Decisions, Decisions from Other Jurisdictions, Statutes, Treatises And Restatements for Guidance

(1) Appellate Review of Inherent Power Sanctions (7th Circuit): Factual Findings Reviewed for Clear Error, Choice of Sanction for Abuse of Discretion — 4-Element Test for Reversal; (2) Sanctions and Class Actions: Monetary Sanctions Properly Imposed on Defendants for Improper Communications with Class Members (Represented Parties) — “[I]f The Class And The Class Opponent Are Involved In An Ongoing Business Relationship, Communications From The Class Opponent To The Class May Be Coercive” (Good Quote); (3) Monetary Sanctions under Goodyear v. Haeger: If Same Fact-Gathering Would Have Been Conducted Absent The Misconduct, No But-For Causation — But Only “Rough Justice” Required, “Not Accountant-Like Precision” (Good Quote) — Once Misconduct Is Clear, Time Spent Ferreting It Out Compensable under Goodyear; (4) Goodyear Did Not Overrule Long-Standing Rule That Courts May Impose Modest Civil Monetary Sanctions to Curb Litigation Abuse; (5) Appellate Jurisdiction Lacking Where Sanctioned Attorney Fails to File Notice of Appeal and Lawyer’s Intent to Appeal Not Apparent from Client’s Notice; (5) Rule 11 Improper Purpose — Party May Have Many Purposes for Pursuing Claim — As Long As Claim Is Supported by Good Faith Belief in the Merits, “A Parallel Reason Does Not Violate Rule 11” — To Deny A Motion for Sanctions, The District Court Need Not Address Every Argument: “Arguments Clearly Without Merit Can, And For The Sake Of Judicial Economy Should, Be Passed Over In Silence” (Good Quote); Non-Monetary Sanction on Counsel: Complete Twice The Required Amount Of Professional Responsibility Hours For Her Next Continuing Legal Education Cycle Imposed By The State Bar

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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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