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

Arbitration — Excess Insurer/Reinsurer with Follow-Form Policy May Not Participate in Arbitration under Primary Policy (No Agreement to Arbitrate with It) — Whether Arbitration Clause Is Valid or Applicable Is Question for Court, Nor Arbitrators

State of Wis. Local Govt. Prop. Ins. Fund v. Lexington Ins. Co., 2016 U.S. App. LEXIS 18980 (7th Cir. Oct. 21, 2016): This dispute arises from the 2013 fire at the Milwaukee County Courthouse (the "Courthouse"). Milwaukee County (the "County") maintained its primary insurance policy covering the Courthouse with the ...
State of Wis. Local Govt. Prop. Ins. Fund v. Lexington Ins. Co., 2016 U.S. App. LEXIS 18980 (7th Cir. Oct. 21, 2016): This dispute arises from the 2013 fire at the Milwaukee County Courthouse (the "Courthouse"). Milwaukee County (the "County")…
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New York State Spoliation Law — Adverse Inference OK for Negligence — Lack of Lit. Hold ≠ Gross Negligence Per Se — Ct. App. Not Bound by App. Div.’s Characterization in Certification Order

Pegasus Aviation I, Inc., v. Varg Logistica S.A., 26 N.Y.3d 543, 46 N.E.3d 601, 26 N.Y.S.3d 218 (2015): A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a ...
Pegasus Aviation I, Inc., v. Varg Logistica S.A., 26 N.Y.3d 543, 46 N.E.3d 601, 26 N.Y.S.3d 218 (2015): A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation …
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Experts — 26(e) ≠ Extension of Deadline to “Deliver Lion’s Share of Expert Info” or Right to Submit “New Rather Than Supplementary” Opinions — 4 Factors to Judge Whether Exclusion OK — Continuance Usually Preferable — Good Quotes

Matter of the Complaint of C.F. Bean LLC (C.F. Bean LLC v. Suzuki Motor Corp.), 2016 U.S. App. LEXIS 19997 (5th Cir. Nov. 4, 2016): This appeal involves a third-party complaint alleging maritime products liability. In 2012, Mark Barhanovich was killed in coastal waters south of Biloxi, Mississippi, when the Suzuki outboard engine on h ...
Matter of the Complaint of C.F. Bean LLC (C.F. Bean LLC v. Suzuki Motor Corp.), 2016 U.S. App. LEXIS 19997 (5th Cir. Nov. 4, 2016): This appeal involves a third-party complaint alleging maritime products liability. In 2012, Mark Barhanovich was…
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Rule 11 Safe Harbor — Filing Rule 11 Motion after Magistrate Judge’s R&R & before District Judge’s Adoption Is Timely — Plaintiff Retains Right to Withdraw Challenged Claim until Adoption

Margetis v. Furgeson, 2016 U.S. App. LEXIS 20293 (5th Cir. Nov. 10, 2016): PER CURIAM:* *   Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
Margetis v. Furgeson, 2016 U.S. App. LEXIS 20293 (5th Cir. Nov. 10, 2016): PER CURIAM:* *   Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the…
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Rule 37(c)(1) Sanctions: Barring Plaintiff Who Failed to Disclose Damages Computation Per 26(a)(1) from Contesting Defendant’s Computation of Profits — 7th Am. Guarantees Right to Jury Trial But Not to Bench Trial, Even If Claim Is Equitable

Anhing Corp. v. Viet Phu, Inc., 2016 U.S. App. LEXIS 19967 (9th Cir. Nov. 4, 2016): *   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. In No. 14-56664, plaintiff Anhing Corporation appeals from the district court's judgment, after a jury trial, in it ...
Anhing Corp. v. Viet Phu, Inc., 2016 U.S. App. LEXIS 19967 (9th Cir. Nov. 4, 2016): *   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. In No. 14-56664, plaintiff…
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Expert Reports — Failure to Prepare & Attach Exhibits Renders Report Incomplete (Moral: Get a Stip)

Honey-Love v. United States, 2016 U.S. App. LEXIS 18829 (5th Cir. Oct. 19, 2016): Jewel Honey-Love appeals from the district court's orders excluding the testimony of her expert witness and granting Defendants' motion for summary judgment as to Honey-Love's medical negligence claim. Because the exclusion o ...
Honey-Love v. United States, 2016 U.S. App. LEXIS 18829 (5th Cir. Oct. 19, 2016): Jewel Honey-Love appeals from the district court's orders excluding the testimony of her expert witness and granting Defendants' motion for summary judgment as to Honey-Love's medical …
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Text [Email] Evidence — Messages Admitted to Show Tone (Flirtatious, Conversational) and Nature of Relationship Are Not Received for the Truth of Their Contents, Thus Not Hearsay

Hankins v. Commonwealth, 2016 Va. App. LEXIS 249 (Va. Ct. App. Sept. 27, 2016): *   Pursuant to Code § 17.1-413, this opinion is not designated for publication. Gary Stephen Hankins ("appellant") appeals his felony convictions of six counts of taking indecent liberties with a child by one in a custodial or ...
Hankins v. Commonwealth, 2016 Va. App. LEXIS 249 (Va. Ct. App. Sept. 27, 2016): *   Pursuant to Code § 17.1-413, this opinion is not designated for publication. Gary Stephen Hankins ("appellant") appeals his felony convictions of six counts of taking …
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Jury Trial Waiver — Who Bears the Burden of Proving Knowing & Voluntary Waiver? — Circuit Split — Factors Determining Enforceability

Goodbye Vanilla, LLC, v. Aimia Proprietary Loyalty U.S., Inc., 2016 U.S. Dist. LEXIS 152775 (D. Minn. Sept. 8, 2016): This matter comes before the Court on Defendant Aimia Proprietary Loyalty U.S. Inc.'s ("Aimia") Motion to Strike Plaintiff's Jury Demand ("Motion to Strike") [Doc. No. 50]. This matter was r ...
Goodbye Vanilla, LLC, v. Aimia Proprietary Loyalty U.S., Inc., 2016 U.S. Dist. LEXIS 152775 (D. Minn. Sept. 8, 2016): This matter comes before the Court on Defendant Aimia Proprietary Loyalty U.S. Inc.'s ("Aimia") Motion to Strike Plaintiff's Jury Demand ("Motion…
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Arbitration — FAA Requirement That Motion to Vacate Be Served within 3 Months of Award Is Subject to Equitable Tolling (Circuit Split) — Award Vacated Because Panel Chair Lied About Credentials

Move, Inc. v. Citigroup Global Mkts., Inc., 2016 U.S. App. LEXIS 19930 (9th Cir. Nov. 4, 2016): Move, Inc. (Move) appeals the district court's order dismissing its action and denying its motion to vacate an arbitration award pursuant to the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq. We have jurisdiction pursuant ...
Move, Inc. v. Citigroup Global Mkts., Inc., 2016 U.S. App. LEXIS 19930 (9th Cir. Nov. 4, 2016): Move, Inc. (Move) appeals the district court's order dismissing its action and denying its motion to vacate an arbitration award pursuant to the…
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While Expert May Not Testify As to the Credibility of Other Witnesses, Expert May Summarize Their Testimony As a Basis for His or Her Own Opinion

Percelle v. Pearson, 2016 U.S. Dist. LEXIS 150629 (N.D. Cal. Oct. 31, 2016): Defendants next argue that Subia should be precluded from summarizing the testimony of other witnesses and from offering his opinion on the credibility of those witnesses. The credibility of witnesses is a matter to be decided by the jury and is thus ...
Percelle v. Pearson, 2016 U.S. Dist. LEXIS 150629 (N.D. Cal. Oct. 31, 2016): Defendants next argue that Subia should be precluded from summarizing the testimony of other witnesses and from offering his opinion on the credibility of those witnesses. The …
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Recent Posts

RICO and Injunctions: (1) State Court Actions Designed to Perpetuate and Monetize a RICO Violation Are Enjoinable under RICO, Even Though They Are Not Themselves Alleged to Be Predicate Acts [Note: Noerr Pennington Applies in RICO Actions] — (2) Although Civil RICO’s Text and Legislative History Fail to Reveal Any Intent to Override the Provisions of the Federal Arbitration Act, Arbitrations Are Enjoinable Under the “Effective Vindication” Doctrine Where They Operate As a Prospective Waiver of a Party’s Right to Pursue Statutory RICO Remedies — (3) Arbitration Findings May Be Given Collateral Estoppel Effect in a Civil RICO Action — (4) Injunction of Non-Corrupt State Court Litigations That Furthers a RICO Violation Are Enjoinable Under the Anti-Injunction Act’s “Expressly Authorized” Exception — (5) “The Irreparable Harm Requirement Is The Single Most Important Prerequisite For The Issuance Of A Preliminary Injunction” (Good Quote) — (6) When Injunction Is Based on “Serious Questions on the Merits” Rather Than “Likelihood of Success,” Court May Rely on Unverified Pleadings and Attached Exhibits to Assess the Merits, Unless the Opponent Has Raised Substantial Questions (Here, the Opponent Failed to Request an Evidentiary Hearing) — (7) Whether Amended Pleading Moots An Appeal Turns on Whether It Materially Changes the Substantive Basis for the Appeal — (8) Meaning of “In That” (“Used To Introduce A Statement That Explains Or Gives More Specific Information” About A Prior Statement)

RICO: Fraudulent Concealment Must Prevent Discovery of the Injury to Toll Statute of Limitations

Rule 37 Default Judgment Sanction: (1) Abuse of Discretion Review = Legal Conclusions De Novo. Factual Findings for Clear Error — (2) Client May Be Sanctioned for Misconduct of Its Counsel, Though Here Client Was Directly Involved in Bad Faith Misbehavior — (3) Is There A Difference, Under Rule 11 As Opposed to Rule 37, Concerning Whether A Client Can Be Sanctioned for Its Counsel’s Misconduct? — (4) While Sanctions of Last Resort (Dismissal/Default) Are Apt Only If Lesser Sanctions Wouldn’t Ensure Compliance, Rule 37 Doesn’t Require the Vain Gesture of First Imposing Lessert Sanctions When It Is Clear They Would be Ineffective — (5) Court’s Reconsideration of Non-Final Orders Is Governed by Rule 54(b), And Court’s Discretion under That Rule Is Governed by the Law-of-the-Case-Doctrine

RICO: (1) Special Pleading Requirements? — (2) Although Enterprise Must Be More Than a Summation of the Predicate Acts, The Predicate Acts Can Demonstrate the Existence of the Enterprise — (3) Requirement That Association-in-Fact Exist For Purposes Other Than Just to Commit Predicate Acts Merely Requires Continuity — (4) To State an Association-in-Fact Enterprise Consisting of One Natural Person and Collection of Legal Fictions Requires Factual Detail As to How They Acted Together — (5) “A § 1962(c) Enterprise Must Be More Than An Association of Individuals Or Entities Conducting the Normal Affairs of a Defendant Corporation” (Good Quote)

RICO: (1) Fee Award May Exceed Amount Recovered — Strict Proportionality Not Required — (2) Nonmonetary Benefits and Injunctive Relief Recovered Also Relevant Factors — (3) Loss on Some Claims Need Not Result in Lowered Fees, Especially When Both Arise Out of The Same Nucleus of Operative Facts

RICO: Indirect Purchasers (Car Buyers/Renters) Lack Standing to Sue Manufacturers for RICO Violations Even Though Intermediaries (Auto Dealer Direct Purchasers) Lack Any Damages

RICO: Statutory Requirement that RICO Be Liberally Construed Does Not Establish a More Liberal Pleading Standard for RICO Claims — “To Be Sure, Adequately Pleading a RICO Claim Can Be Challenging” (Good Quote) — Court May Dismiss Action Pursuant to Rule 41(b) Absent A Motion

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

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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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