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

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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Rule 37 Dismissal Sanction Requires Wilfulness, Bad Faith, Fault — 4 Factors — 2 Years’ Noncompliance = Inference of Wilfulness — Order May Inc. Doc. Requests — Boilerplate Clam of Search Doesn’t Demonstrate Adequacy or Explain Missing Docs

Bhagwanani v. Brown, 2016 U.S. App. LEXIS 19892 (2d Cir. Nov. 4, 2016): SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the August 28, 2015 judgment of the district court is AFFIRMED. Plaintiffs appeal from the dismissal of their complaint for failure to comply with ...
Bhagwanani v. Brown, 2016 U.S. App. LEXIS 19892 (2d Cir. Nov. 4, 2016): SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the August 28, 2015 judgment of the district court is AFFIRMED. Plaintiffs appeal from…
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Email Admissibility: The Mere Fact That an Email Was Created within a Business Entity Does Not Make It a Business Record — All Prongs of 803(6) Must Be Satisfied

In re Lyondell Chem. Co. (Weisfelner v. Blavatnick), 2016 WL 6108526 (Bankr. S.D.N.Y. Oct. 19, 2016):   Before the Court are two letter briefs regarding 210 emails and other documents (the “Exhibits”) offered as trial exhibits by Edward S. Weisfelner, as Trustee of the LB Litigation Trust (the “Trustee”).
In re Lyondell Chem. Co. (Weisfelner v. Blavatnick), 2016 WL 6108526 (Bankr. S.D.N.Y. Oct. 19, 2016):   Before the Court are two letter briefs regarding 210 emails and other documents (the “Exhibits”) offered as trial exhibits by Edward S. Weisfelner, as …
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Rule 11 Sanctions Imposed on Client Largely for Defects in Legal Theories Reversed in Entirety Because “Error So Infused District Court’s Reasoning” — Remanded for Consideration Whether Some Should Be Imposed on Plaintiff’s Counsel

Tacoronte v. Greenspoon Marder P.A., 2016 U.S. App. LEXIS 11416 (11th Cir. 2016): The district court imposed Rule 11 sanctions against Plaintiff Danielle Tacoronte and ordered her to pay reasonable attorney's fees and costs to Defendants Greenspoon Marder and Marc Cohen. Plaintiff appeals the district court's order im ...
Tacoronte v. Greenspoon Marder P.A., 2016 U.S. App. LEXIS 11416 (11th Cir. 2016): The district court imposed Rule 11 sanctions against Plaintiff Danielle Tacoronte and ordered her to pay reasonable attorney's fees and costs to Defendants Greenspoon Marder and Marc…
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Hearsay Emails May Be Considered on Summary Judgment under Rule 56(c)(2) If the Authors Could Testify to the Contents at Trial

Griffith v. Nicholas Financial, Inc, 2016 U.S. Dist. LEXIS 135524 (N.D. Ala. Sept. 30, 2016): Plaintiff Krysti Griffith is a former employee of defendant Nicholas Financial, Inc. Ms. Griffith has systematic lupus erythematosus, an autoimmune disease commonly called lupus. Ms. Griffith worked for Nicholas Financial as a customer servic ...
Griffith v. Nicholas Financial, Inc, 2016 U.S. Dist. LEXIS 135524 (N.D. Ala. Sept. 30, 2016): Plaintiff Krysti Griffith is a former employee of defendant Nicholas Financial, Inc. Ms. Griffith has systematic lupus erythematosus, an autoimmune disease commonly called lupus. Ms.…
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Attorney-Client Privilege — Inadvertent Production of Privileged/Work Product Documents Doesn’t Necessarily Preclude Application of Perlman, But Disclosure of Documents to Grand Jury Does (2-1 3d Circuit Decision)

In re Grand Jury Matter 3, 2016 U.S. App. LEXIS 19454 (3d Cir. Oct. 28, 2016): Company A, John Doe 1, John Doe 1's lawyer, and John Doe 2 are the subjects of an ongoing grand jury investigation into an allegedly fraudulent business scheme.2 John Doe 1 brought this appeal after the government obtained access to an email ...
In re Grand Jury Matter 3, 2016 U.S. App. LEXIS 19454 (3d Cir. Oct. 28, 2016): Company A, John Doe 1, John Doe 1's lawyer, and John Doe 2 are the subjects of an ongoing grand jury investigation into an…
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Removal — Does §1447(c) Allow Dismissal If Remand Is Futile? (Circuit Split) — Class Counsel Are Federal Officers in Sending Class Notice, May Remove State Class Rep’s Attempt to Enjoin It — Case Dismissed on Merits Though No Subj. Matter Jurisd.

Devazier v. Seeco, Inc., 2016 U.S. Dist. LEXIS 92231 (E.D. Ark. July 15, 2016): AMENDED OPINION AND ORDER1   1   The Court enters this Amended [*2]  Order amending only the conclusion of the Court's July 13, 2016, Opinion and Order to ...
Devazier v. Seeco, Inc., 2016 U.S. Dist. LEXIS 92231 (E.D. Ark. July 15, 2016): AMENDED OPINION AND ORDER1   1   The Court enters this Amended [*2]  Order amending only the conclusion of the Court's July 13, 2016, Opinion and Order…
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Appeals — Denial of Leave to Amend Reviewed De Novo If on Futility Grounds, Otherwise for Abuse of Discretion

HansaWorld USA, Inc. v. Carpenter, 2016 U.S. App. LEXIS 18950 (5th Cir. Oct. 20, 2016): II. STANDARD OF REVIEW This court ordinarily reviews [*4]  a district court's denial of a motion for leave to amend a complaint for an abuse of discretion. City of Clinton v. Pilgrim's Pride ...
HansaWorld USA, Inc. v. Carpenter, 2016 U.S. App. LEXIS 18950 (5th Cir. Oct. 20, 2016): II. STANDARD OF REVIEW This court ordinarily reviews [*4]  a district court's denial of a motion for leave to amend a complaint for an abuse …
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Recent Posts

Rule 41(b): Five Factors to Be Weighed in Deciding Whether Dismissal Is Appropriate (Second Circuit) — Is A Finding of Bad Faith or Fault Required if Dismissal Is Without Prejudice? — Undecided If Truly Without Prejudice But It Is Required If the Without Prejudice Dismissal Will Act as a Dismissal on the Merits (Here, Because of the Statute of Limitations) — Failure To Consider A Lesser Sanction Than Dismissal Is Generally An Abuse Of Discretion

Spoliation Sanctions/Mootness: Stipulation Resolving “All Pending Discovery Disputes,” Which Are Enumerated, Does Not Moot Subsequent Sanctions Motion for ESI Spoliation — Postjudgment Sanctions Order Is Appealable When District Court Has Finally Disposed of Both Liability and Amount

Rule 37 Default Judgment Sanction: (1) Default Judgment Appropriate Only As a Last Resort, When Less Drastic Sanctions Would Not Ensure Compliance with the Court’s Orders — (2) Default Judgment Sanction Requires Willful or Bad Faith Failure to Obey Discovery Order — (3) Fugitive Defendant’s Failure to Appear at Court-Ordered, Remote Deposition Despite Court Warning That Sanctions Could Follow Disobedience Warrants Default Judgment — (4) District Court Afforded Wide Discretion in Interpreting Its Own Orders — (5) Filing a Notice of Appeal from a Non-Appealable Order (Here, a Discovery Order) Does Not Deprive the District Court of Jurisdiction over the Case

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

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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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