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

Even If Court Generally Must Dismiss, Not Stay, an Action upon Compelling Arbitration (There Is a Circuit Split on the Dismiss-vs.-Stay Question), When Arbitration Is Compelled to Determine Arbitrability, Then Only a Stay Is Apt

Mercadante v. XE Servs., LLC, 2015 U.S. Dist. LEXIS 4686 (D.D.C. Jan. 15, 2015): The Court need not resolve the question of whether the Court would dismiss the case if it were compelling arbitration on all of the substantive claims in this action. Compare White v. Four Seasons Hotels & Resorts, 999 F. Supp. 2d 250, 261-62 (D.D.C. ...
Mercadante v. XE Servs., LLC, 2015 U.S. Dist. LEXIS 4686 (D.D.C. Jan. 15, 2015): The Court need not resolve the question of whether the Court would dismiss the case if it were compelling arbitration on all of the substantive claims…
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On Rule 60(b)(4) Motion to Vacate Default Judgment for Improper Service, Who Bears Burden of Proving/Disproving Effective Service? Circuit Split

Myers v. Moore, 2014 U.S. Dist. LEXIS 176409  (E.D. Pa. Dec. 22, 2014): III.  RULE 60(b)(4) Defendants Moore and Fisher argue that the default judgments entered against them should be vacated pursuant to Federal Rule of Civil Procedure Rule 60(b)(4) because they were not prop ...
Myers v. Moore, 2014 U.S. Dist. LEXIS 176409  (E.D. Pa. Dec. 22, 2014): III.  RULE 60(b)(4) Defendants Moore and Fisher argue that the default judgments entered against them should be vacated pursuant to Federal Rule of Civil Procedure Rule 60(b)(4) …
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Texts Insufficiently Authenticated by Proof Cell Was Found in Common Area of Apartment Defendant Temporarily Lived in and Texts Contained His First Name — Circumstantial Evidence Inadequate to Permit Jury to Link Cell to Him

People v. Watkins, 2015 Ill. App. LEXIS 35 (Ill. Ct. App. Jan. 21, 2015):    [*P1]  After a jury trial, defendant, Charles Watkins, was convicted of unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(2)(A) (West 2012)) and was sentenced to eight years in prison.
People v. Watkins, 2015 Ill. App. LEXIS 35 (Ill. Ct. App. Jan. 21, 2015):    [*P1]  After a jury trial, defendant, Charles Watkins, was convicted of unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(2)(A) (West 2012)) …
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Sham Affidavit Rule — Remedy: Strike Only Those Portions of Affidavit That Contradict Prior Deposition Testimony

Maisha v. Univ. of NC, 2015 U.S. Dist. LEXIS 4671 (M.D.N.C. Jan. 15, 2015): A party may not create a genuine issue of material fact by "filing [*2]  a later affidavit that flatly contradicts that party's earlier sworn deposition." Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999); ...
Maisha v. Univ. of NC, 2015 U.S. Dist. LEXIS 4671 (M.D.N.C. Jan. 15, 2015): A party may not create a genuine issue of material fact by "filing [*2]  a later affidavit that flatly contradicts that party's earlier sworn deposition." Cleveland…
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Sanctions: Spoliation Motion = Nondispositive Pretrial Matter Properly before Magistrate Judge for Decision — Failure to Appeal Decision to District Court Bars Further Review

McCann v. Kennedy Univ. Hosp., Inc., 2014 U.S. App. LEXIS 23974 (3d Cir. Dec. 19, 2014):  McCann filed suit pro se in the United States District Court for the District of New Jersey, alleging violations of the Emergency Medical Treatment and Active Labor Act ("EMTALA"), 42 U.S.C. § 1395dd(a), by the hospital's ...
McCann v. Kennedy Univ. Hosp., Inc., 2014 U.S. App. LEXIS 23974 (3d Cir. Dec. 19, 2014):  McCann filed suit pro se in the United States District Court for the District of New Jersey, alleging violations of the Emergency Medical Treatment…
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Experts — Compelling Testimony from Unretained Experts — Five Factors

In re World Trade Center Lower Manhattan Disaster Site Litig., 2015 U.S. Dist. LEXIS 5045 (S.D.N.Y. Jan. 15, 2015): A. Power of Court to Compel Non-Retained Expert Witnesses Whether to compel a non-retained expert witness to produce documents [*109]  or testify at a deposition is within the sound disc ...
In re World Trade Center Lower Manhattan Disaster Site Litig., 2015 U.S. Dist. LEXIS 5045 (S.D.N.Y. Jan. 15, 2015): A. Power of Court to Compel Non-Retained Expert Witnesses Whether to compel a non-retained expert witness to produce documents [*109]  or …
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Breadth of Court’s Discretion in Deciding Whether to Adjourn Trial until Party Can Make Personal Appearance — Both Arbitrariness and Prejudice Must Be Shown to Reverse

Koch v. Pechota, 2015 U.S. App. LEXIS 175 (2d Cir. Jan. 7, 2015): "A party's demand for an adjournment of a civil trial until the party can make a personal [*2]  appearance is entrusted to the sound discretion of the trial judge." Payne v. Jones, 711 F.3d 85, 90-91 (2d Cir. 2013) (internal quot ...
Koch v. Pechota, 2015 U.S. App. LEXIS 175 (2d Cir. Jan. 7, 2015): "A party's demand for an adjournment of a civil trial until the party can make a personal [*2]  appearance is entrusted to the sound discretion of the …
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Rule 806 Doesn’t Allow a Party-Declarant to Attack Her Own Credibility with Hearsay — Plain Error Isn’t Synonymous with Obvious Error (Good Quote) — No Need for Expert If Lay Person Is Equally Able to Draw Conclusion

United States v. Tsoa, 2014 U.S. App. LEXIS 21590 (4th Cir. Nov. 12, 2014):   Ging-Hwang Tsoa was convicted after a jury trial of one count of conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349 (2012), and two counts of bank fraud, in violation of 18 U.S.C. §§ 2, 1344 (2012), and wa ...
United States v. Tsoa, 2014 U.S. App. LEXIS 21590 (4th Cir. Nov. 12, 2014):   Ging-Hwang Tsoa was convicted after a jury trial of one count of conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349 (2012),…
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Consulting Experts — Identity, as Opposed to Opinions, Is Discoverable without Showing of Exceptional Circumstances (Case Law Split)

Manzo v. Stanley Black & Decker Inc., 2015 U.S. Dist. LEXIS 2861 (E.D.N.Y. Jan. 9, 2015): Presently before the Court in this personal injury case is Defendant Stanley Black & Decker, Inc.'s ("Black & Decker" or "Defendant") motion to compel a complete response to an interrogatory seeking identification ...
Manzo v. Stanley Black & Decker Inc., 2015 U.S. Dist. LEXIS 2861 (E.D.N.Y. Jan. 9, 2015): Presently before the Court in this personal injury case is Defendant Stanley Black & Decker, Inc.'s ("Black & Decker" or "Defendant") motion to compel …
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Supreme Court — Rule 606(b) Bars New Trial Based on Juror’s Affidavit of Another Juror’s Statements in Deliberations — No Exception for Juror’s Lying during Voir Dire — Juror’s Experience Unrelated to Case ≠ “Extraneous” Information

Barger v. Shauers, 2014 U.S. LEXIS 8294 (U.S. Dec. 9, 2014): Federal Rule of Evidence 606(b) provides that certain juror testimony regarding what occurred in a jury room is inadmissible "[d]uring an inquiry into the validity of a verdict." The question presented in this case is whether Rule 606(b) p ...
Barger v. Shauers, 2014 U.S. LEXIS 8294 (U.S. Dec. 9, 2014): Federal Rule of Evidence 606(b) provides that certain juror testimony regarding what occurred in a jury room is inadmissible "[d]uring an inquiry into the validity of a verdict." The …
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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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