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

Supreme Court — Arbitration — Clause Incorporating State Law Barring Class Arbitration Void under FAA — State Law Can’t Treat Arbitration Contracts Different from Others — What State Law, If Any, Can Drafters Effectively Designate?

DirecTV, Inc. v. Imburgia, 2015 U.S. LEXIS 7999 (U.S. Dec. 14, 2015): The Federal Arbitration Act states that a "written provision" in a contract providing for "settle[ment] by arbitration" of "a controversy . . . arising out of" that "contract . . . shall be valid, irrevocable, and enforceable, save ...
DirecTV, Inc. v. Imburgia, 2015 U.S. LEXIS 7999 (U.S. Dec. 14, 2015): The Federal Arbitration Act states that a "written provision" in a contract providing for "settle[ment] by arbitration" of "a controversy . . . arising out of" that "contract…
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Privilege — Crime-Fraud — Materials Must Be Intended to Further C/F — Intent vs. Effect — Violation of Ethics Waives Privilege Only As to Materials Generated by Violation — Overzealous Discovery Conduct ≠ Misconduct Waiving Privilege

In re GM LLC Ignition Switch Litig., 2015 U.S. Dist. LEXIS 159721 (S.D.N.Y. Nov. 25, 2015): This multi-district litigation proceeding ("MDL"), familiarity with which is presumed, relates to highly publicized defects in certain General Motors branded vehicles and associated vehicle recalls. Before the Court is Plaintiffs' ...
In re GM LLC Ignition Switch Litig., 2015 U.S. Dist. LEXIS 159721 (S.D.N.Y. Nov. 25, 2015): This multi-district litigation proceeding ("MDL"), familiarity with which is presumed, relates to highly publicized defects in certain General Motors branded vehicles and associated vehicle…
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Attorney-Client Privilege — No Adverse Inference from, Evidence of or Argument Concerning Assertion of Privilege Permitted

In re GM LLC Ignition Switch Litig., 2015 U.S. Dist. LEXIS 163255 (S.D.N.Y. Dec. 3, 2015): In its Ninth Motion in Limine, New GM asks the Court to rule that evidence or argument regarding [*383]  New GM's privilege assertions is inadmissible, and to enter an order governing privilege issues at trial. Plaintiff c ...
In re GM LLC Ignition Switch Litig., 2015 U.S. Dist. LEXIS 163255 (S.D.N.Y. Dec. 3, 2015): In its Ninth Motion in Limine, New GM asks the Court to rule that evidence or argument regarding [*383]  New GM's privilege assertions is …
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RICO — No Open- or Closed-End Continuity Stated by Alleged Eight-Month Scheme with Single Victim (Good Collection of Similar Cases)

Grubbs v. Sheakley Grp., Inc., 2015 U.S. App. LEXIS 21146 (6th Cir. Dec. 7, 2015): Plaintiffs Linda Grubbs and the companies she owns, Tri-Serve, Ltd.; TriServe #1, LLC; and Capital Concepts, Inc., appeal the order of the district court dismissing Plaintiffs' claims under the Lanham Act, 15 U.S.C. § 1125, and the Racketeer Influe ...
Grubbs v. Sheakley Grp., Inc., 2015 U.S. App. LEXIS 21146 (6th Cir. Dec. 7, 2015): Plaintiffs Linda Grubbs and the companies she owns, Tri-Serve, Ltd.; TriServe #1, LLC; and Capital Concepts, Inc., appeal the order of the district court dismissing…
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§ 1927 Sanctions — When Does Inactivity Multiply Litigation? — Lawyers Entitled to Time to Digest New, Adverse Information — “Losing Is Part of the Lawyer’s Lot” & Not, Alone, Sanctionable (Good Quote)

Baca v. Berry, 2015 U.S. App. LEXIS 20830 (10th Cir. Dec. 1, 2015): This case arises out of an award of attorneys' fees imposed as a sanction on attorneys who brought a voting-rights lawsuit against the Mayor of Albuquerque. After dismissing the case, the district court found the attorneys unreasonably multiplied ...
Baca v. Berry, 2015 U.S. App. LEXIS 20830 (10th Cir. Dec. 1, 2015): This case arises out of an award of attorneys' fees imposed as a sanction on attorneys who brought a voting-rights lawsuit against the Mayor of Albuquerque.…
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FRAP 38 Sanctions on Pro Se Require (1) Prior Judicial Warning Claims Are Frivolous and (2) Awareness by Pro Se of Ample Authority Holding Squarely against Him or Her — § 1927 Available against Pro Se?

Simmons v. Methodist Hosp. of Dallas, 2015 U.S. App. LEXIS 21505 (5th Cir. Dec. 10, 2015): After Methodist Hospital terminated him, Jason Simmons brought an employment discrimination lawsuit. The district court granted summary judgment, and Simmons did not appeal. Two years later, Simmons brought a second lawsuit against Methodist ...
Simmons v. Methodist Hosp. of Dallas, 2015 U.S. App. LEXIS 21505 (5th Cir. Dec. 10, 2015): After Methodist Hospital terminated him, Jason Simmons brought an employment discrimination lawsuit. The district court granted summary judgment, and Simmons did not appeal. Two…
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Does Rule 15(b)(2) (Which Provides That, If An Issue Not Raised by the Pleadings Is Tried by the Parties, It Is to Be Considered As If It Had Been Pled) Apply to Summary Judgment? Circuit Split

Posey v. NJR Clean Energy Ventures Corp., 2015 U.S. Dist. LEXIS 146688 (D.N.J. Oct. 29, 2015):  1   Plaintiff contends that, pursuant to Fed. R. Civ. P. 15(b)(2), Defendant "effectively consented by its conduct" to resolve the new theories of liability raised in the proposed amended com ...
Posey v. NJR Clean Energy Ventures Corp., 2015 U.S. Dist. LEXIS 146688 (D.N.J. Oct. 29, 2015):  1   Plaintiff contends that, pursuant to Fed. R. Civ. P. 15(b)(2), Defendant "effectively consented by its conduct" to resolve the new theories of liability…
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Dual Fact/Expert Witness — Appropriate Precautions to Avoid Several Risks Associated with Dual-Role Testimony at Trial

United States v. Moralez, 2015 U.S. App. LEXIS 21341 (8th Cir. Dec. 10, 2015): Moralez argues that Agent Taylor's dual roles as fact and expert witness prevented effective cross-examination because attempted impeachment of his expert credentials ran the risk of eliciting, and bolstering the credibility of, otherwise inadmi ...
United States v. Moralez, 2015 U.S. App. LEXIS 21341 (8th Cir. Dec. 10, 2015): Moralez argues that Agent Taylor's dual roles as fact and expert witness prevented effective cross-examination because attempted impeachment of his expert credentials ran the risk of …
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Diversity — Are Attorney’s Fees That Are Anticipated But Not Yet Accrued at the Time of Removal Considered in Determining the Amount in Controversy? — Caselaw Split

Sevilla v. Life Care Ctrs. of Am., Inc., 2015 U.S. Dist. LEXIS 153459 (C.D. Cal. Nov. 12, 2015): 1   Moreover, Courts in the Ninth Circuit are split as to whether attorneys' fees which are anticipated but have not yet accrued at the time of removal should be calculated in determining amount in controversy. S ...
Sevilla v. Life Care Ctrs. of Am., Inc., 2015 U.S. Dist. LEXIS 153459 (C.D. Cal. Nov. 12, 2015): 1   Moreover, Courts in the Ninth Circuit are split as to whether attorneys' fees which are anticipated but have not yet accrued …
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Attorney’s Violation of Ethical Rules in Disclosing Privileged Communications Is Irrelevant to the Communications’ Admissibility — Advice-of-Counsel Defense Waives Privilege Even If Defense Is Invalid

Am. Plastics Techs., Inc. v. Dymond Pharmcare Indus., Ltd., 2015 U.S. Dist. LEXIS 162716 (N.D. Ill. Dec. 4, 2015): Plaintiffs/Counter-Defendants American Plastics Technologies, Inc. and Rao Murukurthy ("Murukurthy") (collectively [*4]  "Plaintiffs"), and Defendants/Counter-Plaintiffs Dymond Pharmc ...
Am. Plastics Techs., Inc. v. Dymond Pharmcare Indus., Ltd., 2015 U.S. Dist. LEXIS 162716 (N.D. Ill. Dec. 4, 2015): Plaintiffs/Counter-Defendants American Plastics Technologies, Inc. and Rao Murukurthy ("Murukurthy") (collectively [*4]  "Plaintiffs"), and Defendants/Counter-Plaintiffs Dymond Pharmcare Industries, Ltd. ("Dymond") and Obong…
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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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