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

Summary Judgment — District Court May Not Draw Adverse Inference Based on Non-Moving Party’s Invocation of Fifth Amendment — Applicability of Exclusionary Rule in Civil Forfeiture Cases & Interplay with Discovery Duties

In re 650 Fifth Ave. & Related Props. (U.S. v. Alavi Found.), 2016 U.S. App. LEXIS 13225 (2d Cir. July 20, 2016): On this appeal, we consider challenges to an award of summary judgment entered in the United States District Court for the Southern District of New York (Forrest, J.), which forfeited to the United States various ...
In re 650 Fifth Ave. & Related Props. (U.S. v. Alavi Found.), 2016 U.S. App. LEXIS 13225 (2d Cir. July 20, 2016): On this appeal, we consider challenges to an award of summary judgment entered in the United States District…
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Experts: No Permission Needed to File Supplemental Report — Burden on Opponent to Move to Strike — May Expert Correct Opinions by Looking to Information Available at Time of Original Report? — The Risk of Lessening the Sting of Cross by Deposing

DR Distributors, LLC v. 21 Century Smoking, Inc., 2016 U.S. Dist. LEXIS 99930 (N.D. Ill. Aug. 1, 2016): Defendants' motion to supplement their expert's report [171] is granted as set out in greater detail herein. The stay on expert discovery is lifted and the deadline to complete expert depositions will be set at the next cour ...
DR Distributors, LLC v. 21 Century Smoking, Inc., 2016 U.S. Dist. LEXIS 99930 (N.D. Ill. Aug. 1, 2016): Defendants' motion to supplement their expert's report [171] is granted as set out in greater detail herein. The stay on expert discovery…
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Suicide as Spoliation — Party’s Suicide ≠ Spoliation of His or Her Testimony Absent Evidence That Intent to Spoliate Motivated the Suicide

Tyler v. Judd, 2016 WL 3570467 (Md. Ct. Spec. App. June 30, 2016) (unreported): *1 This case arises out of a failed sterilization procedure performed on Amanda Tyler, appellant. Despite having a sterilization procedure performed in October 2009, appellant subsequently became pregnant and gave birth to a health ...
Tyler v. Judd, 2016 WL 3570467 (Md. Ct. Spec. App. June 30, 2016) (unreported): *1 This case arises out of a failed sterilization procedure performed on Amanda Tyler, appellant. Despite having a sterilization procedure performed in October 2009, appellant subsequently …
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Forum Selection Clause: Does Federal Law Govern Validity or Chosen Law? — Circuit Split — Could The Parties Resolve This in Their Contract? — Every Foreign Forum Needn’t Duplicate U.S. Remedies (Good Quote)

Barnett v. Dyncorp Int’l, LLC, 2016 U.S. App. LEXIS 13618 (5th Cir. July 26, 2016): Plaintiff Jonathan Barnett alleges that his former employer, DynCorp International LLC, failed to give him all of the pay and benefits he was owed for work he did in Kuwait. To resolve this appeal, we must decide whether the district court properly d ...
Barnett v. Dyncorp Int’l, LLC, 2016 U.S. App. LEXIS 13618 (5th Cir. July 26, 2016): Plaintiff Jonathan Barnett alleges that his former employer, DynCorp International LLC, failed to give him all of the pay and benefits he was owed for…
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Good Quote on Judges and Juries Being Able to Put Improper Evidence Out of Their Minds

United States v. Christensen, 2016 U.S. App. LEXIS 12738 (9th Cir. July 8, 2016): We routinely trust juries to follow limiting instructions when evidence is erroneously admitted. See United States v. Mende, 43 F.3d 1298, 1302 (9th Cir. 1995) (explaining that jurors are presumed to have "follow[ed] the district court' ...
United States v. Christensen, 2016 U.S. App. LEXIS 12738 (9th Cir. July 8, 2016): We routinely trust juries to follow limiting instructions when evidence is erroneously admitted. See United States v. Mende, 43 F.3d 1298, 1302 (9th Cir. 1995) (explaining…
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Does American Pipe Tolling Apply to Statutes of Repose? — Circuit Split

In re Lehman Brothers Secs. & ERISA Litig., 2016 U.S. App. LEXIS 12651 (2d Cir. July 8, 2016): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the orders of the District Court are AFFIRMED. The California Public Employees' Retirement System ("CalPERS") appe ...
In re Lehman Brothers Secs. & ERISA Litig., 2016 U.S. App. LEXIS 12651 (2d Cir. July 8, 2016): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the orders of the District Court are AFFIRMED. The California…
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Settlement Conditioned on Vacatur of Opinion OK Where Court Urges Settlement & Settlement Otherwise Impossible — How Broad Is the Court’s Discretion to Vacate in Order to Facilitate Settlement?

Hartford Cas. Ins. Co. v. Crum & Forster Spec. Ins. Co., 2016 U.S. App. LEXIS 12813 (11th Cir. July 12, 2016): This appeal concerns [*3]  a settlement agreement made contingent on vacating certain orders of the District Court. After being moved to do so under Rule 60(b) of the Federal Rules of Civil Procedure, the District C ...
Hartford Cas. Ins. Co. v. Crum & Forster Spec. Ins. Co., 2016 U.S. App. LEXIS 12813 (11th Cir. July 12, 2016): This appeal concerns [*3]  a settlement agreement made contingent on vacating certain orders of the District Court. After being…
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Sanctions — § 1927 Award May Include All Straws, Not Just the Back-Breaker — Civil vs. Criminal Fines Distinguished — District Court May Always Reconsider — Party’s “Approach Has Little But Chutzpah” — The Rule of Holes (Good Quotes)

Lightspeed Media Corp. v. Smith, 2016 U.S. App. LEXIS 13195 (7th Cir. July 19, 2016) (Note:  the earlier Seventh Circuit opinion in this case, which is referenced below, is excerpted in our post of August 11, 2014; the Ingenuity 13 decision, which is distinguished, is excerpted in our post of July 28, 2016):
Lightspeed Media Corp. v. Smith, 2016 U.S. App. LEXIS 13195 (7th Cir. July 19, 2016) (Note:  the earlier Seventh Circuit opinion in this case, which is referenced below, is excerpted in our post of August 11, 2014; the…
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Inherent Power Sanctions — Extrajudicial Misconduct Covered — Doubling of Attorney’s Fees Still Civil, Not Criminal — District Court May Order Enhanced Bond to Cover Appellate Attorney’s Fees Where Pervasive Misconduct (= Another Sanction)

Ingenutiy13 LLC v. Doe, 2016 U.S. App. LEXIS 10557 (9th Cir. June 10, 2016): Paul Duffy, Paul Hansmeier, and John Steele (collectively, "the Prenda Principals") appeal the district court's award of attorney's fees, including a punitive multiplier, and a second supersedeas bond order. We have jurisdiction pursuant to ...
Ingenutiy13 LLC v. Doe, 2016 U.S. App. LEXIS 10557 (9th Cir. June 10, 2016): Paul Duffy, Paul Hansmeier, and John Steele (collectively, "the Prenda Principals") appeal the district court's award of attorney's fees, including a punitive multiplier, and a second…
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District Courts Are Bound by the Law of Their Circuit & Are Not to Resolve Circuit Splits No Matter How Egregiously Erroneous They May Feel Their Own Circuit to Be (Good Quote)

United States v. Joyner, 2016 U.S. Dist. LEXIS 90241 (N.D. Ga. May 24, 2016): The Government again has the better arguments. Davis held that the Government does not need a probable cause-based search [*9]  warrant to obtain, as here, historical cell site information under § 2703(d). Davis, 785 ...
United States v. Joyner, 2016 U.S. Dist. LEXIS 90241 (N.D. Ga. May 24, 2016): The Government again has the better arguments. Davis held that the Government does not need a probable cause-based search [*9]  warrant to obtain, as here, historical…
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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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