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

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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Judicial Notice of Internet Evidence — Document Posted on a Foreign or Domestic Official Website Is Presumptively Authentic If Government Sponsorship Can Be Verified by Visiting Website — Voluminous Length May Require Additional Proffer

Berry Plastics Corp. v. Intertape Polymer Corp., 2015 U.S. Dist. LEXIS 162609 (S.D. Ind. Dec. 4, 2015): Plaintiff, Berry Plastics Corporation, requests that the court take judicial notice of the European Patent Office ("EPO") patent opposition prosecution history of European Patent No. 1,056,584 pursuant to Federal Rules of ...
Berry Plastics Corp. v. Intertape Polymer Corp., 2015 U.S. Dist. LEXIS 162609 (S.D. Ind. Dec. 4, 2015): Plaintiff, Berry Plastics Corporation, requests that the court take judicial notice of the European Patent Office ("EPO") patent opposition prosecution history of European…
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Rule 11 Sanctions — Baseless Objection to Class Action Settlement — Good Quote: Burying One’s Head in the Sand, in the Hope That a Judge Will Disregard an Adverse Decision by the Supreme Court, Is a Paradigm of Frivolous Litigation

In re Polyurethane Foam Antitrust Litig., 2015 U.S. Dist. LEXIS 156546 (N.D. Ohio Nov. 19, 2015): The Direct Purchaser Class moves for Rule 11 sanctions against Objector Michael Narkin (Doc. 1743), and Narkin moves for sanctions against Class Counsel (Doc. 1800). Sanctions are appropriate because Narkin is not a class ...
In re Polyurethane Foam Antitrust Litig., 2015 U.S. Dist. LEXIS 156546 (N.D. Ohio Nov. 19, 2015): The Direct Purchaser Class moves for Rule 11 sanctions against Objector Michael Narkin (Doc. 1743), and Narkin moves for sanctions against Class Counsel (Doc.…
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Lay Opinion Testimony Based on Hearsay Statements Made by Unidentified Individuals, Well Beyond Witness’s Personal Experience, Violates Rule 701 — Email Containing Hearsay That Is Relevant to State of Mind Only If Hearsay Is True Is Inadmissible

United States v. Lloyd, 2015 U.S. App. LEXIS 21056 (9th Cir. Dec. 4, 2015): Five defendants appeal their convictions or sentences for selling unregistered securities. The defendants worked for telemarketing "boiler rooms" in California and Florida, soliciting investments in partnerships to finance the production and distribu ...
United States v. Lloyd, 2015 U.S. App. LEXIS 21056 (9th Cir. Dec. 4, 2015): Five defendants appeal their convictions or sentences for selling unregistered securities. The defendants worked for telemarketing "boiler rooms" in California and Florida, soliciting investments in partnerships…
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Rule 11 — Failing, in Summary Judgment Opposition Brief, to Make Specific Arguments in Defense of Claims Subject to Rule 11 Motion Is Not Equivalent to Withdrawing Them Per Safe Harbor

Barrett-Bowie v. Select Portfolio Servicing, Inc., 2015 U.S. App. LEXIS 20706 (5th Cir. Nov. 25, 2015): [Plaintiff’s counsel] appeal the district court's Rule 11 sanction order reprimanding them for submitting pleadings that contained factual allegations that Appellants knew were false. Because the district court did not abuse i ...
Barrett-Bowie v. Select Portfolio Servicing, Inc., 2015 U.S. App. LEXIS 20706 (5th Cir. Nov. 25, 2015): [Plaintiff’s counsel] appeal the district court's Rule 11 sanction order reprimanding them for submitting pleadings that contained factual allegations that Appellants knew were false.…
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Twiqbal and Affirmative Defenses — Ninth Circuit Applies Fair-Notice Standard, Not Heightened Pleading Standard of Twombly and Iqbal, to Affirmative Defenses (Cases Are Split on the Issue)

Castellano v. Access premier Realty, Inc., 2015 U.S. Dist. LEXIS 158078 (E.D. Cal. Nov. 23, 2015): An affirmative defense is an "assertion of facts and arguments that, if true, will defeat the plaintiff's [ ] claim, even if all the allegations in the complaint are true." Black's Law Dictionary (10th ed. 2014). A cour ...
Castellano v. Access premier Realty, Inc., 2015 U.S. Dist. LEXIS 158078 (E.D. Cal. Nov. 23, 2015): An affirmative defense is an "assertion of facts and arguments that, if true, will defeat the plaintiff's [ ] claim, even if all the…
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Diversity Jurisdiction — Supreme Court Has Granted Cert to Resolve Circuit Split as to Whether Citizenship of a Trust Is Determined by Citizenship of Controlling Trustees, Trust Beneficiaries or Some Combination of Both

WNWSR, LLC v. Chesapeake Energy Corp., 2015 U.S. Dist. LEXIS 159527 (S.D. Tex. Nov. 19, 2015): 5   The courts of appeals agree that the citizenship of a limited liability company is determined by the citizenship of the company's shareholders. Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 585 n.1 (2004) (noting ...
WNWSR, LLC v. Chesapeake Energy Corp., 2015 U.S. Dist. LEXIS 159527 (S.D. Tex. Nov. 19, 2015): 5   The courts of appeals agree that the citizenship of a limited liability company is determined by the citizenship of the company's shareholders. Grupo…
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30(b)(6) Testimony Binding Only in Sense It Can Be Used Against Organization — Testimony Can be Corrected, Explained or Supplemented — Entity Isn’t Bound to Whatever a Fairly-Prepared and Candid Deponent Happens to Recall

Keepers, Inc. v. Sidepockets, Inc., 2015 U.S. App. LEXIS 20223 (2d Cir. Nov. 20, 2015): Plaintiff Keepers, Inc. ("Keepers") and defendant City of Milford, Connecticut ("Milford" or "the City") appeal and cross-appeal, respectively, from partial summary judgment awards to each party by the United States Di ...
Keepers, Inc. v. Sidepockets, Inc., 2015 U.S. App. LEXIS 20223 (2d Cir. Nov. 20, 2015): Plaintiff Keepers, Inc. ("Keepers") and defendant City of Milford, Connecticut ("Milford" or "the City") appeal and cross-appeal, respectively, from partial summary judgment awards to each…
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Changes to Deposition Testimony — Circuit Split as to Whether Substantive Changes Allowed — In Some Circuits That Allow Substantive Changes, Sham Affidavit Rule Bars Contradiction, But Applies Only on Summary Jmt; Otherwise, Credibility Is for Jury

Arce v. Chi. Trans. Auth., 2015 U.S. Dist. LEXIS 159917 (N.D. Ill. Nov. 30, 2015): On June 29, 2015, Defendant Chicago Transit Authority (the "CTA") deposed Charlotte Arce, spouse of Plaintiff Israel Arce, based upon Plaintiff's Rule 26(a) disclosure that Mrs. Arce is a witness with relevant knowledge of ...
Arce v. Chi. Trans. Auth., 2015 U.S. Dist. LEXIS 159917 (N.D. Ill. Nov. 30, 2015): On June 29, 2015, Defendant Chicago Transit Authority (the "CTA") deposed Charlotte Arce, spouse of Plaintiff Israel Arce, based upon Plaintiff's Rule 26(a) disclosure that …
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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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