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

Evidence: How Does Rule 403 Apply to Propensity Evidence Allowed by Rules 413 and 414? — Circuit Split

Pilati v. United States, 2016 U.S. Dist. LEXIS 99541 (N.D. Ala. Mar. 23, 2016): A court cannot admit evidence of a person's character or traits in order to "prove that on a particular occasion the person acted in accordance with the character or trait." Fed. R. Evid. 404(a)(1), (b)(1). However, Rule ...
Pilati v. United States, 2016 U.S. Dist. LEXIS 99541 (N.D. Ala. Mar. 23, 2016): A court cannot admit evidence of a person's character or traits in order to "prove that on a particular occasion the person acted in accordance with…
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Class Actions — Claims-Made Settlement: Is Benefit to Class the Amount Claimed or Amount Available to Be Claimed? — Circuit Split — Consumer Settlement with Clear Sailing & Kicker Clauses, and Fees Exceeding Amount Claimed, Upheld

Gascho v. Global Fitness Holdings, LLC, 822 F.3d 269 (6th Cir. 2016) (2-1 decision): **1 This case involves challenges to the settlement of a consumer class action. Amber Gascho and other Plaintiffs (collectively, “Plaintiffs”) sued Global Fitness Holdings, LLC alleging that between 2006 and 2012 Global sold gym m ...
Gascho v. Global Fitness Holdings, LLC, 822 F.3d 269 (6th Cir. 2016) (2-1 decision): **1 This case involves challenges to the settlement of a consumer class action. Amber Gascho and other Plaintiffs (collectively, “Plaintiffs”) sued Global Fitness Holdings, LLC alleging…
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RICO Complaint Must Allege Crimes — Civil RICO Conspiracy Can’t Be Based on Negligence — Res Judicata Bars RICO Claim Based on Same Nucleus as Prior Non-RICO Case — Federal Res Judicata Law Applies in Fed. Question Cases (State Law If Diversity)

Snow Ingredients, Inc. v. Snowizard, Inc., 2016 U.S. App. LEXIS 14977 (5th Cir. Aug. 15, 2016): As the seasons turn from spring to summer in New Orleans, locals know to expect familiar changes. The days get longer. The temperature rises. And in the humid warmth of summer, long lines grow outside the most popular sno-ball shops. The pa ...
Snow Ingredients, Inc. v. Snowizard, Inc., 2016 U.S. App. LEXIS 14977 (5th Cir. Aug. 15, 2016): As the seasons turn from spring to summer in New Orleans, locals know to expect familiar changes. The days get longer. The temperature rises.…
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Judicial Notice — Federal Court May Take Judicial Notice of Papers Filed in State Court

Wilson v. Cnty. of Contra Costa, 2015 U.S. Dist. LEXIS 108246 (N.D. Cal. Aug. 14, 2015): As to the Due Process Claims, Defendants challenge these claims on the merits but also ask the Court, as an alternative to dismissal of these claims, to stay proceedings under the Colorado River doctrine pending the resolution of ...
Wilson v. Cnty. of Contra Costa, 2015 U.S. Dist. LEXIS 108246 (N.D. Cal. Aug. 14, 2015): As to the Due Process Claims, Defendants challenge these claims on the merits but also ask the Court, as an alternative to dismissal of …
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Appealability — Denial of Summary Judgment Is Generally Interlocutory, Subsumed by Verdict, Unappealable — But a “Controversial Exception” Exists for “Purely Legal Issues” (Circuit Split)

Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 2016 U.S. App. LEXIS 14057 (7th Cir. Aug. 2, 2016): A. Facilitating a RICO Enterprise The racetracks did not properly preserve for appeal their argument that the evidence did not support a finding that the racetracks agreed to facilitate the Blagojevich rackete ...
Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 2016 U.S. App. LEXIS 14057 (7th Cir. Aug. 2, 2016): A. Facilitating a RICO Enterprise The racetracks did not properly preserve for appeal their argument that the evidence did not support…
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Rule 11 Sanctions Inapt Where Losing Claims “Not So Obviously Foreclosed by Precedent” As to Doom Them — Courts Should Be Cautious to Avoid Chilling Enthusiasm & Creativity of Counsel — Acts Before Administrative Agency Sanctionable Only by Agency

Snow Ingredients, Inc. v. Snowizard, Inc., 2016 U.S. App. LEXIS 14977 (5th Cir. Aug. 15, 2016): As the seasons turn from spring to summer in New Orleans, locals know to expect familiar changes. The days get longer. The temperature rises. And in the humid warmth of summer, long lines grow outside the most popular sno-ball shops. The pa ...
Snow Ingredients, Inc. v. Snowizard, Inc., 2016 U.S. App. LEXIS 14977 (5th Cir. Aug. 15, 2016): As the seasons turn from spring to summer in New Orleans, locals know to expect familiar changes. The days get longer. The temperature rises.…
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Injunctions Must Be Written So That an Ordinary Person Can Understand Exactly What Is Proscribed — Omissions or Ambiguities Are Resolved in Favor of the Enjoined Party

U.S. ex rel. Yelverton v. Fed. Ins. Co., 2016 U.S. App. LEXIS 14378 (D.C. Cir. Aug. 5, 2016): These consolidated appeals are the latest chapter in a long line of litigation over a bankruptcy settlement agreed to by the trustee whom the United States Trustee appointed to represent the bankruptcy estate. The debtor's numerou ...
U.S. ex rel. Yelverton v. Fed. Ins. Co., 2016 U.S. App. LEXIS 14378 (D.C. Cir. Aug. 5, 2016): These consolidated appeals are the latest chapter in a long line of litigation over a bankruptcy settlement agreed to by the trustee …
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Spoliation — Three Purposes Underlying Adverse Inference Sanction — Lesser Sanctions OK Where No Intent to Spoliate, Lost Info Was Tangential, and Movant Was Not Diligent in Exploring Alternate Sources

Mazzei v. Money Store, 2016 U.S. App. LEXIS 12973 (2d Cir. July 15, 2016): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED. Joseph Mazzei appeals from the judgment of the United States District Court for the Southern Distric ...
Mazzei v. Money Store, 2016 U.S. App. LEXIS 12973 (2d Cir. July 15, 2016): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED. Joseph Mazzei appeals from the judgment…
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Does § 1927 Extend to Pre-Removal Conduct in State Court? — Case Law Split — Inherent Power Extends to Conduct Occurring before Other Tribunals

Boyer v. BNSF Rwy. Co., 2016 U.S. App. LEXIS 14913 (7th Cir. Aug. 9, 2016) (Note:  The original panel opinion is excerpted in our post of June 16, 2016): On Petition for Rehearing and Rehearing En Banc In his petition for rehearing, attorney Christopher D. Stombaugh argues for [*2]  the first time t ...
Boyer v. BNSF Rwy. Co., 2016 U.S. App. LEXIS 14913 (7th Cir. Aug. 9, 2016) (Note:  The original panel opinion is excerpted in our post of June 16, 2016): On Petition for Rehearing and Rehearing En Banc In his petition …
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Arbitration: Federal Court Has Jurisdiction under FAA to Review Award If Court Would’ve Had Jurisdiction Over Dispute But For Arb. Agreement (Look-Through Approach)—Arbitrators’ Failure to Follow Rules—Statutory Interpretation Quotes

Doscher v. Sea Port Grp. Secs., LLC, 2016 U.S. App. LEXIS 14767 (2d Cir. Aug. 11, 2016): This case arises from the dismissal of a petition to vacate an arbitral award pursuant to section 10 of the Federal Arbitration Act (the "FAA" or the "Act"), 9 U.S.C. § 10. It requires us to reconside ...
Doscher v. Sea Port Grp. Secs., LLC, 2016 U.S. App. LEXIS 14767 (2d Cir. Aug. 11, 2016): This case arises from the dismissal of a petition to vacate an arbitral award pursuant to section 10 of the Federal Arbitration Act…
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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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