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 — Operation and Management — Need to Show Degree of Cooperation Beyond Bounds of Normal Commercial Relationships — Test for Lower Level Participants: Fungible or Essential Role — Acting in Individual vs. Enterprise’s Interest

Nesbitt v. Regas, 2015 U.S. Dist. LEXIS 35552 (N.D. Ill. Mar. 20, 2015): Plaintiff Diane Goldring Nesbitt ("Goldring") brings this action against eleven defendants, alleging that each played a role in a fraudulent scheme that resulted in substantial losses to Goldring. She asserts violations [*2]  of the Ra ...
Nesbitt v. Regas, 2015 U.S. Dist. LEXIS 35552 (N.D. Ill. Mar. 20, 2015): Plaintiff Diane Goldring Nesbitt ("Goldring") brings this action against eleven defendants, alleging that each played a role in a fraudulent scheme that resulted in substantial losses to…
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RICO — Injury Must Flow from Investment of Racketeering Income under § 1962(a) and Be Caused by Acquisition of Interest under § 1962(b) — Allegation That Parent Is RICO Person and Sub is Enterprise ≠ Distinctiveness under § 1962(c)

N. Cypress Med. Ctr. Operating Co. v. CIGNA Healthcare, 2015 U.S. App. LEXIS 3711 (5th Cir. Mar. 10, 2015): This is a dispute over an insurer's obligation to pay a hospital for medical services provided to insured patients. Under the insurance plans, patients are to pay for part of their hospital bills and [*2]  ...
N. Cypress Med. Ctr. Operating Co. v. CIGNA Healthcare, 2015 U.S. App. LEXIS 3711 (5th Cir. Mar. 10, 2015): This is a dispute over an insurer's obligation to pay a hospital for medical services provided to insured patients. Under the…
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Experts — Differential Diagnosis Is OK under Daubert, But Expert Cannot Neglect to Consider a Potentially Explanatory Hypothesis — Elimination of Potential Causes Must Be Founded on More Than Subjective Belief or Speculation (Good Quote)

Nelson v. Matrixx Initiatives, Inc., 2015 U.S. App. LEXIS 1620 (9th Cir. Feb. 2, 2015): In a toxic tort case in California, a plaintiff must show both general causation, which is "that the substance at issue was capable of causing the injury alleged," and specific causation, which is "that the substance caused, or was ...
Nelson v. Matrixx Initiatives, Inc., 2015 U.S. App. LEXIS 1620 (9th Cir. Feb. 2, 2015): In a toxic tort case in California, a plaintiff must show both general causation, which is "that the substance at issue was capable of causing…
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Rule 37 Sanctions — Default Judgment Drastic But Useful If Confronted with “Obstructionist Adversary” — Abuse of Discretion Standard “Not Appellant-Friendly” (Good Quotes) — 1st Circuit Rule 37 Factors

Angiodynamics, Inc. v. Biolitec AG, 2015 U.S. App. LEXIS 3802 (1st Cir. Mar. 11, 2015): In this appeal, Defendants challenge the district court's exercise of personal jurisdiction over certain defendants, the denial of their motions to dismiss, and the entry of default judgment and a damages award against them as a sanction for di ...
Angiodynamics, Inc. v. Biolitec AG, 2015 U.S. App. LEXIS 3802 (1st Cir. Mar. 11, 2015): In this appeal, Defendants challenge the district court's exercise of personal jurisdiction over certain defendants, the denial of their motions to dismiss, and the entry…
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Facebook: Defendant’s Posting Communications to Victim, Not a Facebook Friend, on His Own Public Notes Page = Stalking, Witness Tampering, Violated TRO Barring Contact with Victim — Fact Victim Voluntarily Accessed Notes No Defense

State v. Craig, 2015 N.H. LEXIS 13 (N.H. Sup. Ct. Feb. 12, 2015): Following a jury trial in Superior Court (Delker, J.), the defendant, Brian Craig, was convicted on one count of criminal threatening, RSA 631:4 (Supp. 2014); one count of witness tampering, RSA 641:5 (2007); and one count of stalking, RSA ...
State v. Craig, 2015 N.H. LEXIS 13 (N.H. Sup. Ct. Feb. 12, 2015): Following a jury trial in Superior Court (Delker, J.), the defendant, Brian Craig, was convicted on one count of criminal threatening, RSA 631:4 (Supp. 2014); one count …
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Instant Message Authenticated by Proof of Person’s Screen Name and Reply Letter Doctrine, Plus No Evidence Anyone Had Motive or Opportunity to Impersonate — Voicemail Authenticated by Witness Who Recognizes Voice

People v. Pierre, 41 A.D.3d 289,; 838 N.Y.S.2d 546 (1st Dept.), appeal denied, 9 NY3d 880, 874 NE2d 759, 842 NYS2d 792 (2007): Judgment, Supreme Court, New York County (James A. Yates, J.), rendered May 12, 2005, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 year ...
People v. Pierre, 41 A.D.3d 289,; 838 N.Y.S.2d 546 (1st Dept.), appeal denied, 9 NY3d 880, 874 NE2d 759, 842 NYS2d 792 (2007): Judgment, Supreme Court, New York County (James A. Yates, J.), rendered May 12, 2005, convicting defendant, after…
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Wayback Machine — Authenticating Affidavit from Internet Archive Employee Sufficient to Raise Genuine Issue of Material Fact as to When Image First Published

Foster v. Rodriguez, 2015 U.S. Dist. LEXIS 22590 (S.D.N.Y. Feb. 25, 2016): The question, then, is whether there is a genuine dispute of material fact as to when the photograph was first published. Defendants offer Lee's declaration and a supplemental internet search as evidence that the photograph appeared on one of Lashp ...
Foster v. Rodriguez, 2015 U.S. Dist. LEXIS 22590 (S.D.N.Y. Feb. 25, 2016): The question, then, is whether there is a genuine dispute of material fact as to when the photograph was first published. Defendants offer Lee's declaration and a supplemental …
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Rule 68 Offer of Judgment — In Second Circuit, Offer Moots Case If Court Enters Judgment in Plaintiff’s Favor Per Offer or Otherwise Enforces Offer’s Terms — Defendant Can Move to Enter Mooting Judgment over Plaintiff’s Objection

Nicholson v. Allied Interstate, LLC, 2015 U.S. Dist. LEXIS 29043 (E.D.N.Y. Mar. 10, 2015): Plaintiff Richard Nicholson ("plaintiff") brings this action against Allied Interstate, LLC ("Allied") and iQor, Inc. ("iQor") (collectively, "defendants"), asserting claims under the Fair Debt Collection ...
Nicholson v. Allied Interstate, LLC, 2015 U.S. Dist. LEXIS 29043 (E.D.N.Y. Mar. 10, 2015): Plaintiff Richard Nicholson ("plaintiff") brings this action against Allied Interstate, LLC ("Allied") and iQor, Inc. ("iQor") (collectively, "defendants"), asserting claims under the Fair Debt Collection Practices…
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Inherent Power Sanctions — Failure to Prepare 3d Party 30(b)(6) Witness to Testify Fully at Trial after All Employees Assert 5th= Bad Faith — Waiver by Adversary Irrelevant to Sua Sponte Sanctions — Meaning of Abuse of Discretion (11th Circuit)

Sciarretta v. Lincoln Nat’l Life Ins. Co., 2015 U.S. App. LEXIS 2864 (11th Cir. Feb. 26, 2015): J. Alfred Prufrock saw the moment of his greatness flicker and the eternal footman hold his coat and snicker.1 If there had been an insurance policy on his life like the one that gave rise to this case, Prufrock might have seen ...
Sciarretta v. Lincoln Nat’l Life Ins. Co., 2015 U.S. App. LEXIS 2864 (11th Cir. Feb. 26, 2015): J. Alfred Prufrock saw the moment of his greatness flicker and the eternal footman hold his coat and snicker.1 If there had been…
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Judicial Notice of Internet Evidence — Admissions — Court Takes Notice of Website of Firm Seeking Attorney’s Fees For Biographical Information to Assess Reasonableness of Hourly Rates Sought

In re Reynolds, 2015 Bankr. LEXIS 732 (Bankr. C.D. Cal. Mar. 9, 2015): Hourly Rate Charged Reynolds seeks an award of reasonable attorneys' fees based on an hourly rate of $400 per hour. Raymond Rengo ("Rengo") testified in support of the request: ...
In re Reynolds, 2015 Bankr. LEXIS 732 (Bankr. C.D. Cal. Mar. 9, 2015): Hourly Rate Charged Reynolds seeks an award of reasonable attorneys' fees based on an hourly rate of $400 per hour. Raymond Rengo ("Rengo") testified in support of …
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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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