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
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Securities Sufficiently Implicated to Trigger PSLRA’s RICO Bar but Not Its Mandatory Sanctions Provision

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The plaintiff in Lowery v. Blue Steel Releasing, Inc., 2007 U.S. App. LEXIS 29896 (9th Cir. Dec. 20, 2007), alleged that the defendants induced him by fraud to invest $75,000 by wire transfer in Blue Steel. The Ninth Circuit affirmed dismissal of the RICO claim due to the RICO Bar enacted as part of the Private Securities Litigation Reform Act of 1995 ("no person may rely upon any conduct that would have been actionable as fraud in the purchase or sale of securities to establish a violation of" — 18 U.S.C. § 1964(c)). The Ninth Circuit agreed wit the District Court that: “The sale of Blue Steel stock was not ‘incidental’ to the alleged RICO violation but was the ‘lynchpin’ of the underlying scheme.” After the securities and common law fraud claims were separately dismissed, the District Judge also considered the imposition of sanctions under the PSLRA mandate (15 U.S.C. § 78u-4(c)(1)-(2). The District Court declined to impose sanctions because the plaintiff voluntarily dismissed his securities claim against the moving defendant. The defendant contended that “the court should have awarded sanctions under the PSLRA even though [plaintiff] voluntarily dismissed the claim for securities fraud against [the moving defendant] because there would have been no litigation at all but for the securities fraud [the plaintiff] originally alleged.” The Ninth Circuit affirmed the District Court and rejected this argument, holding that the moving defendant “fails to distinguish the cause of action from the transaction that gave rise to the cause of action. We conclude that PSLRA sanctions are not available to[the moving defendant] on this record, and the district court did not abuse its discretion in so holding.”

This result is salutary, although the language of the PSLRA sanctions provision is mandatory, not discretionary (under § 78u-4(c)(2), if the court finds a violation, “the court shall impose sanctions”), and the opinion appears to mean that a transactional analysis, which clearly governs application of the RICO Bar, does not govern application of the PSLRA sanctions provision, even though the RICO Bar and the sanctions provision were passed in the same legislation and with the same defense-protection motivation.

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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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