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

Greg Joseph

(1) FRAP 38 Sanctions: “Woebegone Contests To Arbitrators’ Awards Are Sanctionable. Anything Less Makes A Mockery Of Arbitration’s Promise To Expedite And Cut The Costs Of Resolving Disputes” (Good Quote) — (2) Arbitration: New York Law and AAA Rules Allow Awards of Attorney’s Fees as Sanctions Even If the Contract Provides That Each Party Is to Bear Its Own Fees

Am. Zurich Ins. Co. v. Sun Holdings, Inc., 2024 U.S. App. LEXIS 13303 (7th Cir. June 3, 2024): Sun Holdings purchased a workers’-compensation policy from American Zurich Insurance. The policy made American Zurich responsible for paying all approved claims in…
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(1) RICO: Causation Requires Direct Relation Between Injury and Conduct — May Properly Be Assessed at Pleading Stage — “Civil RICO Is An Unusually Potent Weapon And For That Reason Courts Strive To Flush Out Frivolous Rico Allegations At An Early Stage Of The Litigation” (Good Quote) — (2) Denial of Leave to Amend Usually Reviewed for Abuse of Discretion But De Novo Review Applies If Denial Based on a Legal Interpretation, Such as Futility

*1 Upon due consideration, it is hereby ORDERED, ADJUDGED, and DECREED that the judgment of the district court is AFFIRMED. Plaintiffs Jonathan and Esther Zuhovitzky challenge the district court’s dismissal, pursuant to Federal Rule of Civil Procedure …
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Rule 37 Sanction of Dismissal — Sixth Circuit Factors — Factors Applied More Stringently When Fault Lies with Counsel Rather Than Party — Bad Faith/Willfulness/Fault Satisfied by Delay or Contumacious Conduct — Failure to Comply with Discovery Requests or Court Order Versus Merely Dilatory Conduct — Time, Money and Effort to Obtain Legally-Required Cooperation = Prejudice — Dismissal May Be First and Only Sanction

D & R Servs., LLC v. Mesa Underwriters Specialty Ins. Co., 2024 WL 2830660 (6th Cir. June 4, 2024): *1 D & R Services, LLC and DD & KD Services, LLC1 brought this action against their insurer, Mesa Underwriters…
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RICO Conspiracy: (1) Fourth Circuit’s 3-Part Test Requires Conspiring to Operate or Manage the Enterprise (Minority Rule Following Salinas) — (2) Conspirator Need Not Personally Commit Any Predicate Acts — Sufficient That S/he Agreed That One Member of the Conspiracy Commit At Least 2 Predicate Acts — Unnecessary to Identify Specific Racketeering Acts That The Defendant Agreed Would Be Committed — “The Object Of A Rico Conspiracy Is To Engage In Racketeering, Not To Commit Each Predicate Racketeering Act” — Necessary to Prove Only The Defendant Agreed to Pursue The Same Criminal Objective As the Enterprise — (4) Because A Racketeering Conspiracy Is Not Contingent On Specific Predicates, A Jury May Convict On A RICO Conspiracy Charge While Acquitting Defendant On Predicate Acts

United States v. Hunt, 99 F.4th 161 (4th Cir. 2024): This appeal arises from the prosecution of the “36th Street Bang Squad” (the “Bang Squad”), a gang that committed a string of murders, attempted murders, and assaults in 2015 and…
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Circuit Split — Derivative Actions — Third Circuit Joins Majority of Circuits in Holding That Dismissal Decisions on Grounds of Futility Are Subject to De Novo Review, Abandoning Abuse of Discretion — Relevant Factors in Deciding Whether De Novo or Deferential Review Is Appropriate

In re: Cognizant Tech. Solutions Corp. Derivative Litigation, 101 F.4th 250 (3d Cir. 2024) (en banc): We initiated en banc review of this case to consider what standard of appellate review ought to apply when a district court dismisses a …
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RICO: No Domestic Injury Where Investors In Ghana Placed Funds With Ghanaian Investment Firm And Those Funds Were Stolen In Ghana By A Ghanaian Family Domiciled In The US — Irrelevant That Funds Were Transmitted To US entity Owned By Ghanaian-American Defendants — Domestic Injury May Properly Be Decided On Motion To Dismiss — Rejecting A Conduct-Plus-Property Rule: That A RICO Injury Arises In The Place Where A Plaintiff’s Property Is Located At The Time Of The Racketeering Conduct

Opinion This case began when investors in Ghana placed their funds with a Ghanaian private investment firm, hoping to recoup a profit. Instead, a Ghanaian family domiciled in Virginia allegedly used a web of shell companies across Ghana and the …
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RICO: 9(b) Particularity Applies to Mail and Wire Fraud Allegations; Even Where Some Allegations Are Insufficiently Particular, A Complaint May Satisfy 9(B) If Its Allegations Are Sufficiently Particularized When Taken As A Whole; Four Elements of a § 1962(c)-Based RICO Claim — Appealability: Dismissal without Prejudice Is Appealable If No Leave to Amend Granted, Judgment Entered and Case Closed — Dismissal for Failure to Satisfy 9(b) Treated As 12(b)(6) Dismissal for Failure to State Claim for Relief — Court First Determines Whether 9(b) Satisfied And, If So, Whether 12(b)(6) Is — “Rule 12(b)(6) Motions To Dismiss Are Not Designed To Weigh Evidence Or Consider The Truth Or Falsity Of An Adequately Pled Complaint” (Good Quote)

Clinton v. Sec. Ben. Life Ins. Co., 63 F.4th 1264 (10th Cir. 2023):  [*1269]  ROSSMAN, Circuit Judge. Plaintiffs are consumers who sued Defendant Security Benefit Life Insurance Company under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 …
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RICO Standing: As Long As Pattern of Racketeering Has Caused Harm to Plaintiff’s Business or Property, Plaintiff Need Not Have Been Injured by Multiple Predicate Acts — Injury from One of the Predicate Acts Suffices to Confer Standing

Pacmar Techs. LLC v. Kao, 2023 U.S. Dist. LEXIS 231131 (D. Haw. Dec. 29, 2023): ORDER GRANTING IN PART AND DENYING IN PART: DEFENDANT DUKE HARTMAN’S MOTION TO DISMISS SECOND AMENDED COMPLAINT, FILED APRIL 21, 2023 [ECF 97]; DEFENDANT/CROSS-CLAIMANT CLIFFORD …
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Sanctions for “Exceptional” Patent Cases under 35 U.S.C. § 285 — Liability for Attorneys’ Fees Limited to Parties — Silence of Statute on Liability of Counsel, Unlike § 1927 and Rule 11, Precludes Award

Dragon Intell. Prop. LLC v. Dish Network L.L.C., 2024 U.S. App. LEXIS 12057 (Fed. Cir. May 20, 2024): Sanctions for “Exceptional” Patent Cases under 35 U.S.C. § 285 — Liability for Attorneys’ Fees Limited to Parties — Silence of Statute …
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Recent Articles

RICO — Pleading Conspiracy — Plaintiffs Must Plausibly Allege That the Defendants Knowingly Joined the RICO Conspiracy — Sparse Allegations of Knowledge of Fraud Due to Participation in a Commercial Transaction Insufficient to State RICO Conspiracy Claim Where Allegations Not Inconsistent with Ordinary Commercial Behavior — While Knowledge May Be Pled “Generally” under Rule 9(b), It Cannot Be Alleged Conclusorily and Must Satisfy the Twiqbal Plausibility Standard

Depositions: Improper to Object to Form to Straightforward Questions (Not Compound, Vague, Leading or Speculative) — Lack of Foundation Objection Improper in 30(b)(6) Deposition — Improper to “Educate” Witness During Breaks of 30(b)(6) Deposition Through Witness Calls to Knowledgeable Corporate Colleagues — Magistrate Judge May Impose Financial Sanctions

Spoliation/Sanctions: “A Party Does Not Spoliate Evidence When, Without Notice Of The Evidence’s Potential Relevance, It Destroys The Evidence According To Its Policy Or In The Normal Course Of Its Business” (Good Quote)

RICO: Fraud on Government Entities Causing Plaintiffs to Pay More for Inmate Calls Actionable on Bridge v. Phoenix Bond Analysis — Fact That Governments Had Separate Injuries As Part of the Scheme (from Reduced Commissions) Irrelevant — Plaintiffs’ Injuries Not Derivative of Governments’ — The Fraud on the Governments Was Not Too Distinct From Plaintiffs’ Injuries But Rather Necessary to Injure Plaintiffs — No Risk of Duplicative Recoveries and No Plaintiff Better Situated to Sue for Plaintiffs’ Injuries

Inherent Power Sanctions — Dismissal for Threatening Defendant and Magistrate Judge — No First Amendment Right to Threaten Violence

RICO: Domestic Injury — Delivery of Fraudulently Non-Conforming Goods FOB Los Angeles for Shipment to China Means Injury Arose Domestically When Purchaser Took Title —Other Relevant Factors Include That The Non-Conforming Goods Were Sourced and Made in the U.S. and The Racketeering Activity (Mail/Wire Fraud) Occurred in, and Was Directed from, the United States — Irrelevant to Domestic Injury Inquiry Whether Property Is Tangible or Intangible — 7th Circuit’s “Injury-Felt” Test of Domestic Injury Rejected by Supreme Court — RICO Standing Requires Concrete Financial Loss, Not Merely Injury to Valuable Intangible Property Interest (9th Circuit)

RICO Causation: Parents of Children with Disabilities Deprived In-Person Education and Services during the Pandemic Were Not Causally Injured by Teachers’ False Assurances to Federal Authorities That IDEA-Complaint Policies Were in Place, Which Caused Funds to Issue But Not to the Benefit of the Disabled Children — Damages Too Indirect — Proper Plaintiff Is U.S. Government — Private Injunctive Relief Under RICO Uncertain in Third Circuit

Sanctions: Rule 37(b)(2) Dismissal — Sixth Circuit Factors

Inherent Power Sanctions — Extrajudicial Misconduct: Sanctions Power Extends to Conduct Intended to Sabotage Court’s Ability to Adjudicate the Case Before It, Here, By Commencing State Court Actions Seeking to Enjoin the Federal Plaintiffs from Proceeding with Their Federal Litigation — Sanctions Fee Awards: The Factors Used For Calculating A Fee Award To A Prevailing Party Do Not Govern — Under Goodyear, the Relevant Inquiry Is Whether There Is A Sufficient Causal Link Between The Sanctioned Misconduct And The Fees Awarded

RICO: Members of Association-in-Fact Enterprise Must Act with a Common Purpose—Mere Allegation That Various Defendants Agreed at Different Times to Engage in Various Fraudulent Schemes Does Not Plausibly Support the Essential Inference, That They Acted with s Sufficiently Common Purpose

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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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