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

RICO —Limitations Period Not Equitably Tolled by Criminal Investigation & FBI Agent’s Request Suit Not Be Filed — No Fraud by Defendants & No Extraordinary Circumstance Outside Plaintiff’s Control — Pending Criminal Litigation Distinguished

Farmer v. D&O Contractors, Inc., 2016 U.S. App. LEXIS 2811 (5th Cir. Feb. 18, 2016): Plaintiffs--Appellants Stephen Farmer, et al., filed a civil suit against Defendants--Appellees D & O Contractors, et al., [*2]  alleging violations of the Racketeer Influenced and Corrupt Organizations Act (RICO). Defendants--Appellees moved to dism ...
Farmer v. D&O Contractors, Inc., 2016 U.S. App. LEXIS 2811 (5th Cir. Feb. 18, 2016): Plaintiffs–Appellants Stephen Farmer, et al., filed a civil suit against Defendants–Appellees D & O Contractors, et al., [*2]  alleging violations of the Racketeer Influenced and…
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Rule 37 Dismissal for Disregard of Order Compelling Discovery: “We Weigh Not Only The Straw That Finally Broke The Camel’s Back, But All The Straws That The Recalcitrant Party Piled On Over The Course Of The Lawsuit” (Good Quote)

Muhammad v. City of Chicago, 2016 U.S. App. LEXIS 4551 (7th Cir. Mar. 11, 2016): Miykael Muhammad sued the City of Chicago and others for allegedly violating his civil rights during a traffic stop when a police officer forced him to take a field sobriety test. See 42 U.S.C. § 1983. During discovery Muhammad failed repeatedly ...
Muhammad v. City of Chicago, 2016 U.S. App. LEXIS 4551 (7th Cir. Mar. 11, 2016): Miykael Muhammad sued the City of Chicago and others for allegedly violating his civil rights during a traffic stop when a police officer forced him…
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Experts — Undisclosed Rule 702 Expert Testimony Barred under Rule 37(c)(1) Not Admissible under Rule 701 — Factors in Deciding Whether Supplementation after the Close of Expert Testimony Is Fair (Wyoming Supreme Court) (Good Quote)

Matter of the Paternity of HLG, 2016 Wyo. LEXIS 38 (Wyo. Sup. Ct. Mar. 11, 2016): [*P1]  JN (Mother) appeals from the district court's order granting RFSG (Father) custody of their son, HLG (the child). She claims the district court abused its discretion by refusing to allow the child's therapist to give opin ...
Matter of the Paternity of HLG, 2016 Wyo. LEXIS 38 (Wyo. Sup. Ct. Mar. 11, 2016): [*P1]  JN (Mother) appeals from the district court's order granting RFSG (Father) custody of their son, HLG (the child). She claims the district court…
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Lawyer Representing Client in Prior Case thru Mediation & Settlement in Principle (But Not Agreement Drafting) Disqualified from Representing Adversary in Later Breach Case Where Intent at Issue — No Waiver Waiting 4 Months before Moving to DQ

Reading Int’l, Inc. v. Malulani Grp., Ltd., 2016 U.S. App. LEXIS 3311 (9th Cir. Feb. 25, 2016): Appellee The Malulani Group, Limited ("TMG") moves to disqualify counsel for appellant Reading International, Inc. ("Reading"), Bronster Fujichaku Robbins ("Bronster Firm"). TMG seeks disqualification because ...
Reading Int’l, Inc. v. Malulani Grp., Ltd., 2016 U.S. App. LEXIS 3311 (9th Cir. Feb. 25, 2016): Appellee The Malulani Group, Limited ("TMG") moves to disqualify counsel for appellant Reading International, Inc. ("Reading"), Bronster Fujichaku Robbins ("Bronster Firm"). TMG seeks…
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Supreme Court — Diversity Jurisdiction — The Citizenship of Any Unincorporated Entity (Here, a REIT) Is Determined by the Citizenship of Its Members — Calling Such an Entity a Trust Changes Nothing

Americold Realty Trust v Conagra Foods, Inc., 2016 U.S. LEXIS 1652 (U.S. Mar. 7, 2016): Federal law permits federal courts to resolve certain nonfederal controversies between "citizens" of different States. This rule is easy enough to apply to humans, but can become metaphysical when applied to legal entities. This case ask ...
Americold Realty Trust v Conagra Foods, Inc., 2016 U.S. LEXIS 1652 (U.S. Mar. 7, 2016): Federal law permits federal courts to resolve certain nonfederal controversies between "citizens" of different States. This rule is easy enough to apply to humans, but…
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Sanctions — Foreign Judgment for Costs in Favor of Party Sanctioned in U.S. May Be Used As An Offset Against U.S. Sanctions Award

Thai Lao Lignite (Thailand) Co., Ltd. v. Hongsa Lignite (Lao PDR) Co., Ltd., 2016 U.S. Dist. LEXIS 29864 (S.D.N.Y. Mar. 8, 2016): Thai Lao Lignite (Thailand) Co., Ltd., and Hongsa Lignite (LAO PDR) Co., Ltd., (collectively, "Petitioners"), filed a petition for confirmation of a foreign arbitral award pursuant to the Federal ...
Thai Lao Lignite (Thailand) Co., Ltd. v. Hongsa Lignite (Lao PDR) Co., Ltd., 2016 U.S. Dist. LEXIS 29864 (S.D.N.Y. Mar. 8, 2016): Thai Lao Lignite (Thailand) Co., Ltd., and Hongsa Lignite (LAO PDR) Co., Ltd., (collectively, "Petitioners"), filed a petition…
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Privilege — Federal Circuit Recognizes Patent Agent-Client Privilege — Scope = Communications Furthering Tasks Outlined in Patent Office Regs — 2-1 Panel Decision

In re Queen’s Univ. at Kingston, 2016 U.S. App. LEXIS 4259 (Fed. Cir. Mar. 7, 2016): Petitioners Queen's University at Kingston and PARTEQ (together, "Queen's University") are engaged in a patent infringement action against Samsung Electronics Co., Ltd. and Samsung Electronics America, Inc. (together, "Samsung ...
In re Queen’s Univ. at Kingston, 2016 U.S. App. LEXIS 4259 (Fed. Cir. Mar. 7, 2016): Petitioners Queen's University at Kingston and PARTEQ (together, "Queen's University") are engaged in a patent infringement action against Samsung Electronics Co., Ltd. and Samsung…
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Judicial Estoppel May Be Invoked by Party Not in Prior Proceeding Who Would Suffer No Prejudice And Even If Adversary Did Not Prevail on the Issue and Would Not Receive Unfair Advantage by Changing Position

Slater v. U.S. Steel Corp., 2016 U.S. App. LEXIS 3225 (11th Cir. Feb. 24, 2016): The equitable doctrine of judicial estoppel, also known as the doctrine of preclusion of inconsistent positions, "precludes a party from asserting a . . . position that contradicts or is inconsistent with a prior position taken by the same pa ...
Slater v. U.S. Steel Corp., 2016 U.S. App. LEXIS 3225 (11th Cir. Feb. 24, 2016): The equitable doctrine of judicial estoppel, also known as the doctrine of preclusion of inconsistent positions, "precludes a party from asserting a . . . …
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Class Actions — While Every Member of a 23(b)(2) Injunctive Class Must Have Article III Standing, Must Each One Have Personal Standing? — Circuit Split (Not in 2nd Circuit)

Estate of Gardner v. Continental Cas. Co., 2016 U.S. Dist. LEXIS 26555 (D. Conn. Mar. 1, 2016): RULING ON MOTION [*2]  FOR CLASS CERTIFICATION Plaintiffs the Estate of Marie L. Gardner, the Estate of Francis R. Coughlin, M.D., the Estate of Barbara B. Coughlin, Janice B. Foster, and Marie Miller bring this cas ...
Estate of Gardner v. Continental Cas. Co., 2016 U.S. Dist. LEXIS 26555 (D. Conn. Mar. 1, 2016): RULING ON MOTION [*2]  FOR CLASS CERTIFICATION Plaintiffs the Estate of Marie L. Gardner, the Estate of Francis R. Coughlin, M.D., the Estate…
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Recent Posts

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

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.”

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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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