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 — “Difficult, Though Not Impossible, to Certify a Class in a RICO Mail Fraud Case” — First Party Reliance Usually Means Individual Inquiry — Setting Sights Lower Could Work Using Generalized Proof — Potential Use of Regression Analyses

Sergeants Benevolent Ass’n Health & Welfare Fund v. Sanofi-Aventis U.S. LLP, 2015 U.S. App. LEXIS 19797 (2d Cir. Nov. 13, 2015 (2d Cir Nov. 13, 2015): Plaintiffs-Appellants are three health-benefit plans ("HBPs") that brought suit under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et se ...
Sergeants Benevolent Ass’n Health & Welfare Fund v. Sanofi-Aventis U.S. LLP, 2015 U.S. App. LEXIS 19797 (2d Cir. Nov. 13, 2015 (2d Cir Nov. 13, 2015): Plaintiffs-Appellants are three health-benefit plans ("HBPs") that brought suit under the Racketeer Influenced and …
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Spoliation — Adverse Inference Rejected — Lost Documents Likely Irrelevant — Presumption Insufficient to Show Prejudice — Instruction Could Effectively End Case — Fees Awarded for Needed Additional Discovery

Ruzhinskaya v. HealthPort Techs., LLC, 2015 U.S. Dist. LEXIS 156685 (S.D.N.Y. Nov. 19, 2015): This decision resolves a motion for sanctions against plaintiff Tatyana Ruzhinskaya ("Ruzhinskaya") and her counsel. The motion, by defendant HealthPort Technologies, LLC ("HealthPort"), seeks sanctions arising fro ...
Ruzhinskaya v. HealthPort Techs., LLC, 2015 U.S. Dist. LEXIS 156685 (S.D.N.Y. Nov. 19, 2015): This decision resolves a motion for sanctions against plaintiff Tatyana Ruzhinskaya ("Ruzhinskaya") and her counsel. The motion, by defendant HealthPort Technologies, LLC ("HealthPort"), seeks sanctions arising …
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Documents Obtained from FDIC (or Other Governmental) Website Are Self-Authenticating and Properly Considered on Summary Judgment — Judicial Notice OK — (Official Documents of the Agency, Not Third Party Documents Posted on Site)

Avery v. LPP Mortgage, Ltd., 2015 Tex. App. LEXIS 11136 (Tex. Ct. App. Oct. 29, 2015): Appellant, Allan R. Avery, appeals the trial court's grant of summary judgment in favor of appellee, LPP Mortgage, Ltd. [LPP], on two notes guaranteed by Avery. We affirm in part and reverse and remand in part. ***2."the ...
Avery v. LPP Mortgage, Ltd., 2015 Tex. App. LEXIS 11136 (Tex. Ct. App. Oct. 29, 2015): Appellant, Allan R. Avery, appeals the trial court's grant of summary judgment in favor of appellee, LPP Mortgage, Ltd. [LPP], on two notes guaranteed…
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Rule 15(a) — Court Can’t Order Plaintiff to Amend before Decision on 12(b)(6) Motion or Lose Right to Do So — Liberal Amendment Especially Important in Light of Twiqbal — Rigorous Appellate Review If No Amendment Allowed

Runnion v. Girl Scouts of Greater Chicago, 786 F.3d 510 (7th Cir. 2015): This appeal presents substantive issues concerning the scope of the federal Rehabilitation Act's coverage of private organizations (like the Girl Scouts) that receive federal funding. Before addressing the merits, though, we must address some recurring proced ...
Runnion v. Girl Scouts of Greater Chicago, 786 F.3d 510 (7th Cir. 2015): This appeal presents substantive issues concerning the scope of the federal Rehabilitation Act's coverage of private organizations (like the Girl Scouts) that receive federal funding. Before addressing…
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Internet Evidence — Official Records from Government Websites Bearing Distinctive Characteristics (Official Insignias) Are Self-Authenticating under Fed. R. Evid. 902(5)

Johnson v. Cate, 2015 U.S. Dist. LEXIS 120839 (E.D. Cal. Sept. 10, 2015): Plaintiff is a state prisoner proceeding pro se in this civil rights action brought pursuant to 42 U.S.C. § 1983. The matter proceeds against Defendant Harrington on Plaintiff's Eighth Amendment claim and state law negligence claim. (ECF Nos. 19, 20, and 23 ...
Johnson v. Cate, 2015 U.S. Dist. LEXIS 120839 (E.D. Cal. Sept. 10, 2015): Plaintiff is a state prisoner proceeding pro se in this civil rights action brought pursuant to 42 U.S.C. § 1983. The matter proceeds against Defendant Harrington on…
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Spoliation Sanctions under Inherent Power Require Finding of Bad Faith — Prelitigation Spoliation Not Sanctionable under Rule 37(b)(2)

Environmental World Watch, Inc. v. Walt Disney Co., 2015 U.S. App. LEXIS 19782 (9th Cir. Nov. 13, 2015): These appeals arise from litigation filed in 2009 by Environmental World Watch ("EWW") and individuals against The Walt Disney Company, Disney Enterprises, Inc., and Disney [*2]  Worldwide Services, Inc. ...
Environmental World Watch, Inc. v. Walt Disney Co., 2015 U.S. App. LEXIS 19782 (9th Cir. Nov. 13, 2015): These appeals arise from litigation filed in 2009 by Environmental World Watch ("EWW") and individuals against The Walt Disney Company, Disney Enterprises,…
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Failing to Request Leave to Amend Complaint Prior to Dismissal, or Including Only a One-Line Request in Brief without Explaining Basis for Proposed Amendment, Warrants Denial of Belated Application

Muathe v. Fifth Third Bank, 2015 U.S. App. LEXIS 17618 (10th Cir. Oct. 8, 2015): Assuming his complaint was properly dismissed, Mr. Muathe says the district court at least should have allowed him to amend. But before the entry of judgment he never filed a motion asking to amend and he never suggested how he might be able to amend his ...
Muathe v. Fifth Third Bank, 2015 U.S. App. LEXIS 17618 (10th Cir. Oct. 8, 2015): Assuming his complaint was properly dismissed, Mr. Muathe says the district court at least should have allowed him to amend. But before the entry of…
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RICO Statute of Limitations Accrual = Injury + (Reasonable) Discovery — No Fraudulent Tolling Absent Due Diligence — Limitations Period Extended Only by Length of Period Due Dilig. Exerted; Period Doesn’t Start Anew at End of Due Diligence

Madison 92nd St. Assocs., LLC v. Courtyard Mgmt. Corp., 2015 U.S. App. LEXIS 16386 (2d Cir. Sept. 15, 2015): ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that the order of the district court is AFFIRMED. The appellant, Madison 92nd Street Associates, LLC (&quo ...
Madison 92nd St. Assocs., LLC v. Courtyard Mgmt. Corp., 2015 U.S. App. LEXIS 16386 (2d Cir. Sept. 15, 2015): ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that the order of the district court is AFFIRMED.…
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Sanctions Appeal by Counsel Mooted Where Sanction Imposed on Client (for Counsel’s Conduct) and Client Settles Sanction, Despite Harm to Counsel’s Reputation from Language in Opinion — 2 to 1 Decision — Where Is the Line on Appealability?

Tesco Corp. v. Nat’l Oil Well Varco, LP, 2015 U.S. App. LEXIS 18903 (Fed. Cir. Oct. 30, 2015): Plaintiff Tesco Corporation ("Tesco") and interested parties-appellants [*2]  Glenn A. Ballard, Jr. and John F. Luman, III (collectively "the Attorneys") filed this appeal from a decision of the United States D ...
Tesco Corp. v. Nat’l Oil Well Varco, LP, 2015 U.S. App. LEXIS 18903 (Fed. Cir. Oct. 30, 2015): Plaintiff Tesco Corporation ("Tesco") and interested parties-appellants [*2]  Glenn A. Ballard, Jr. and John F. Luman, III (collectively "the Attorneys") filed this …
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Facebook Authentication — Witness Who Accepted Friend Request Testifies She Was Tagged on Threatening Posts and Received Threatening Photo Via Facebook News Feed, and Her Screenshots of Posts and Photos Are Fair and Accurate

People v. Wooten, 2015 Cal. App. Unpub. LEXIS 8115 (Cal. Ct. App. Nov. 12, 2015): A jury convicted William Fred Wooten of making a criminal threat.*** FACTUAL AND PROCEDURAL BACKGROUND Jene Yates suspected that her 16-year-old sister was acting as a prostitute for Wooten. Yates had seen an advertisement featuring her sis ...
People v. Wooten, 2015 Cal. App. Unpub. LEXIS 8115 (Cal. Ct. App. Nov. 12, 2015): A jury convicted William Fred Wooten of making a criminal threat.*** FACTUAL AND PROCEDURAL BACKGROUND Jene Yates suspected that her 16-year-old sister was acting as…
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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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