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

LinkedIn Admissibility: Profile of Employee Is Hearsay as to Employer Concerning Whether She Was a Manager Authorized to Accept Service of Process for Employer — “Proper Service of Process Is Not Some Mindless Technicality” (Good Quote)

Genesis Diamonds, LLC v. John Hardy, Inc., 2016 U.S. Dist. LEXIS 83165 (M.D. Tenn. June 27, 2016): Before the court are multiple motions: (1) defendant John Hardy, Inc.'s Motion for Judgment on the Pleadings (Doc. No. 8); (2) a Motion to Dismiss for Lack of Personal Jurisdiction and Insufficiency of Servic ...
Genesis Diamonds, LLC v. John Hardy, Inc., 2016 U.S. Dist. LEXIS 83165 (M.D. Tenn. June 27, 2016): Before the court are multiple motions: (1) defendant John Hardy, Inc.'s Motion for Judgment on the Pleadings (Doc. No. 8); (2) a …
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Rule 37(c)(1) Sanctions — Two-Page Expert Report Properly Excluded for Failure to Set forth All Opinions — Report “Sufficiently Sparse” as to Fail to Satisfy 702/Daubert

U.S. ex rel. Tennessee Valley Auth. v. 1.72 Acres of Land in Tennessee, 2016 U.S. App. LEXIS 8287 (6th Cir. May 5, 2016): This is an appeal by the landowner, Karl Thomas, from an award made by the district court in a condemnation action brought by the Tennessee Valley Authority  [**2]  ("TVA") under the TV ...
U.S. ex rel. Tennessee Valley Auth. v. 1.72 Acres of Land in Tennessee, 2016 U.S. App. LEXIS 8287 (6th Cir. May 5, 2016): This is an appeal by the landowner, Karl Thomas, from an award made by the district court…
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Spoliation of Tangible Evid. — Adverse Inference Instruction Requires Intentionality & Prejudice (8th Cir.) — Court Must Make Findings on the Record — Plain Error If No Objection to Instructions — Failure to Appeal Again after R. 59 Motion Denied

Lincoln Composites, Inc. v. Firetrace USA, LLC, 2016 U.S. App. LEXIS 10346 (8th Cir .June 8, 2016): Firetrace USA, LLC (Firetrace) appeals the district court's1 denial of its Federal Rule of Civil Procedure 59 motion for new trial or remittitur, following a jury verdict in favor of Lincoln Composites, Inc. (Lincoln). Fi ...
Lincoln Composites, Inc. v. Firetrace USA, LLC, 2016 U.S. App. LEXIS 10346 (8th Cir .June 8, 2016): Firetrace USA, LLC (Firetrace) appeals the district court's1 denial of its Federal Rule of Civil Procedure 59 motion for new trial or remittitur,…
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Arbitration: A Reasoned Award Is A Simple Result; Need Not Delve Into Every Argument — A Claim Arbitrators Exceeded Their Authority Is Judged Under the “Barely Colorable Justification” Standard

Leeward Constr. Co. v. American Univ. of Antigua – College of Medicine, 2016 U.S. App. LEXIS 11570 (2d Cir. June 24, 2016): American University of Antigua-College of Medicine ("AUA") appeals from the March 26, 2013 memorandum opinion and the March 28, 2013 judgment of the United States District Court for the Southern Distr ...
Leeward Constr. Co. v. American Univ. of Antigua – College of Medicine, 2016 U.S. App. LEXIS 11570 (2d Cir. June 24, 2016): American University of Antigua-College of Medicine ("AUA") appeals from the March 26, 2013 memorandum opinion and the March…
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Arbitration — Manifest Disregard Lives, Is Doctrine of Last Resort, Limited to Exceedingly Rare Instances of Egregious Impropriety — Three Elements — Dissent, Alone, Not Enough

American Univ. of Antigua-College of Medicine v. Leeward Constr. Co., 2016 U.S. App. LEXIS 11548 (2d Cir. June 24, 2016): Leeward Construction Company appeals from the May 1, 2015 opinion and order of the United States District Court for the Southern District of New York (Cote, J.) confirming an international arbitral award w ...
American Univ. of Antigua-College of Medicine v. Leeward Constr. Co., 2016 U.S. App. LEXIS 11548 (2d Cir. June 24, 2016): Leeward Construction Company appeals from the May 1, 2015 opinion and order of the United States District Court for the…
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Rule 37(c) Sanctions — Are Attorney’s Fees for Lawyer Not Admitted Pro Hac Vice Recoverable? (Circuit Split) — Only Paralegal Tasks Traditionally Performed by Lawyers Generate Recoverable Fees — Local Rates Govern

Warder v. Shaw Grp., Inc., 2016 U.S. Dist. LEXIS 81822 (E.D. La. June 23, 2016): On March 16, 2016, this Court heard oral argument on Shaw Environmental, Inc.'s Second Motion to Compel [Doc. #200] and Shaw Environmental, Inc.'s Motion for Attorney's Fees [Doc. #201]. On March 22, 2016, this Court granted the motion to comp ...
Warder v. Shaw Grp., Inc., 2016 U.S. Dist. LEXIS 81822 (E.D. La. June 23, 2016): On March 16, 2016, this Court heard oral argument on Shaw Environmental, Inc.'s Second Motion to Compel [Doc. #200] and Shaw Environmental, Inc.'s Motion for…
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Arbitration — Is It for the Court or Arbitrators to Decide Whether Claim Can Proceed as a Class Claim? — Circuit Split — Incorporation of AAA Rules Dictates Conclusion That Arbitrators Decide

III. Availability of Class Arbitration Hedrick v. BNC Nat’l Bank, 2016 U.S. Dist. LEXIS 64679 (D. Kan. May 16, 2016): Plaintiff argues that the question of whether his claim can proceed to arbitration as a class claim is a procedural question that the arbitrator, rather than the Court, should decide. Alternat ...
III. Availability of Class Arbitration Hedrick v. BNC Nat’l Bank, 2016 U.S. Dist. LEXIS 64679 (D. Kan. May 16, 2016): Plaintiff argues that the question of whether his claim can proceed to arbitration as a class claim is a procedural…
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Facebook Admissibility — Reversible Error to Exclude Printout of Authenticated Facebook Messages Even Though Testimony about Them Was Permitted — A Basic Principle of Evidence Law Is That What Is Relevant Is Generally Admissible (Good Quote)

People v. Nunn, 2016 IL App (3d) 140137-U; 2016 Ill. App. Unpub. LEXIS 957 (Ill. Ct. App. May 16, 2017): [*P1]  Held: In a felony murder case in which defendant claimed that the trial court erred in refusing to admit certain documentary evidence at trial, the appellate court agreed and found that the error was not harmless. ...
People v. Nunn, 2016 IL App (3d) 140137-U; 2016 Ill. App. Unpub. LEXIS 957 (Ill. Ct. App. May 16, 2017): [*P1]  Held: In a felony murder case in which defendant claimed that the trial court erred in refusing to admit…
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Rule 16(f) / 37(b) Sanctions — Exclusion of Witness Testimony / Supplemental Expert Opinions Not Disclosed in Compliance with Pretrial Order — 8th Circuit Factors

Amplatz v. Country Mut. Ins. Co., 2016 U.S. App. LEXIS 9540 (8th Cir. May 25, 2016): A jury awarded Maria Amplatz, an insured under a commercial-property insurance policy issued by Country Mutual Insurance Company, $76,065.50 for covered hail and wind damage to the exterior of two properties, but it found that the policy did n ...
Amplatz v. Country Mut. Ins. Co., 2016 U.S. App. LEXIS 9540 (8th Cir. May 25, 2016): A jury awarded Maria Amplatz, an insured under a commercial-property insurance policy issued by Country Mutual Insurance Company, $76,065.50 for covered hail and wind …
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$282,000 in Rule 11, Inherent Power and § 1927 Sanctions Reversed — Colorable Claims in Complex Area of the Law Preclude Any Award

Wolfchild v. Redwood Cnty., 2016 U.S. App. LEXIS 9976 (8th Cir. June 1, 2016): Appellants-plaintiffs filed this purported class action claiming the right to title and possession of twelve square miles of land in southern Minnesota ("twelve square miles"). Specifically, Appellants allege they are lineal descendants o ...
Wolfchild v. Redwood Cnty., 2016 U.S. App. LEXIS 9976 (8th Cir. June 1, 2016): Appellants-plaintiffs filed this purported class action claiming the right to title and possession of twelve square miles of land in southern Minnesota ("twelve square miles"). Specifically, …
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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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