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

Arbitration — All Writs Act Cannot Be Used to Enjoin Arbitration Based on Claim-Preclusive Effect of Prior Federal Judgment That Merely Confirmed Prior Arbitration without Considering Merits — Claim Preclusion Is for Arbitrators to Decide

Citigroup, Inc. v. Abu Dhabi Inv. Auth., 2015 U.S. App. LEXIS 549 (2d Cir. Jan. 14, 2015): This case presents the question of whether the All Writs Act, 28 U.S.C. § 1651(a), permits a federal district court to enjoin a second arbitration between parties to a contractual arbitration agreement based on what [*2]  one party asserts is ...
Citigroup, Inc. v. Abu Dhabi Inv. Auth., 2015 U.S. App. LEXIS 549 (2d Cir. Jan. 14, 2015): This case presents the question of whether the All Writs Act, 28 U.S.C. § 1651(a), permits a federal district court to enjoin a…
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Third Party Emails Produced by Party Sufficiently Authenticated by Act of Production when Offered by Opponent But Hearsay / Admissibility Objections Must Separately Be Satisfied

Broadspring, Inc. v. Congoo, LLC, 2014 U.S. Dist. LEXIS 177838 (S.D.N.Y. Dec. 29, 2014): Plaintiff's second motion in limine seeks to exclude nine e-mails that were sent to Broadspring or Mindset Interactive employees by third-party software distributors with whom they once conducted business. The motion is GRANTE ...
Broadspring, Inc. v. Congoo, LLC, 2014 U.S. Dist. LEXIS 177838 (S.D.N.Y. Dec. 29, 2014): Plaintiff's second motion in limine seeks to exclude nine e-mails that were sent to Broadspring or Mindset Interactive employees by third-party software distributors with whom they …
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Sanctions — No Abuse of Discretion to Deny § 1927 Sanctions, But Rule 26(g) Sanctions Are Mandatory, Discretion Limited to Type — Amount Paid in Settlement May = Admission Claim Sound — Recidivism Is Factor in Choosing Sanction

Rojas v. Town of Cicero, 2015 U.S. App. LEXIS 72 (7th Cir. Jan. 5, 2015): Merced Rojas contended in this suit under 42 U.S.C. §1983 that the Town of Cicero violated the First Amendment by firing him because he supported a political opponent of Larry Dominick, the Town's president. After an eight-day trial, a jury found in Rojas&# ...
Rojas v. Town of Cicero, 2015 U.S. App. LEXIS 72 (7th Cir. Jan. 5, 2015): Merced Rojas contended in this suit under 42 U.S.C. §1983 that the Town of Cicero violated the First Amendment by firing him because he supported…
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Spoliation — Second Circuit Reaffirms Negligence Standard for Adverse Inference Instruction — Physical Evidence (Same Post 37(e)?) — Same Standard in Criminal as Civil Case — Government Department’s Policy No Excuse for Spoliation

United States v. Garcia, 2015 U.S. App. LEXIS 392 (2d Cir. Jan. 7, 2015): ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED and that the defendant-appellant's claim of ineffective assistance of counsel is
United States v. Garcia, 2015 U.S. App. LEXIS 392 (2d Cir. Jan. 7, 2015): ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED and that the…
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Discovery — Fact That Documents Are Publicly Available Is No Defense to Production of Documents Possessed, But There Is No Duty to Obtain Unpossessed, Publicly Available Documents for Production (What About Work Product?)

Todd v. Tempur-Sealy Int’l, Inc., 2014 U.S. Dist. LEXIS 161037 (N.D. Cal. Nov. 17, 2014): I. BACKGROUND Plaintiffs' initial Complaint, filed on October 25, 2013, and operative Second Amended Complaint, filed on August 29, 2014, allege misrepresentations and omissions by Defendants Tempur-Sealy Int ...
Todd v. Tempur-Sealy Int’l, Inc., 2014 U.S. Dist. LEXIS 161037 (N.D. Cal. Nov. 17, 2014): I. BACKGROUND Plaintiffs' initial Complaint, filed on October 25, 2013, and operative Second Amended Complaint, filed on August 29, 2014, allege misrepresentations and omissions by …
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Rule 11 and Removal — No Abuse of Discretion to Deny Sanctions for Clear Rule 11 Violation — Rooker-Feldman Inapplicable to Removed Claims — § 1447(c) Sanctions Shouldn’t Be Imposed to Discourage All But Air-Tight Cases for Removal

Lundahl v. Home Depot, Inc., 2014 U.S. App. LEXIS 22993 (10th Cir. Dec. 3, 2014): Plaintiff Holli Lundahl, proceeding pro se,1 appeals from the district court's order denying her motion for sanctions under Fed. R. Civ. P. 11 against defendants Home Depot, Inc., and Citibank N.A based on her assertion they wrongfully rem ...
Lundahl v. Home Depot, Inc., 2014 U.S. App. LEXIS 22993 (10th Cir. Dec. 3, 2014): Plaintiff Holli Lundahl, proceeding pro se,1 appeals from the district court's order denying her motion for sanctions under Fed. R. Civ. P. 11 against defendants…
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RICO — The Act of Filing Even a Frivolous Lawsuit Does Not, by Itself, Constitute an Act of Extortion within the Hobbs Act — Noerr Pennington Applied to Litigation: Two-Part Test

Content Extraction & Transmission LLC v. Wells Fargo Bank, N.A., 2014 U.S. App. LEXIS 24258 (Fed. Cir. Dec. 23, 2014): We turn next to Diebold's appeal from the district court's dismissal of its tortious interference and RICO violation claims against CET. Diebold's claims all arise from the following pred ...
Content Extraction & Transmission LLC v. Wells Fargo Bank, N.A., 2014 U.S. App. LEXIS 24258 (Fed. Cir. Dec. 23, 2014): We turn next to Diebold's appeal from the district court's dismissal of its tortious interference and RICO violation claims against …
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Sanctions — Court May Dismiss for Deliberate Violation of Rule 37 without Considering Lesser Sanctions (Unlike Inherent Power) — Not Every Willful Violation of Court Order Justifies Dismissal — 8th Circuit’s 3-Part Test — What Is Prejudice

Comstock v. UPS Ground Freight, Inc., 2014 U.S. App. LEXIS 24554 (8th Cir. Dec. 30, 2014): Responding to serious misconduct during discovery, the district court1 sanctioned Dolores Comstock by dismissing her lawsuit. Comstock appeals this dismissal, and we affirm. 1   The Honorable Susan ...
Comstock v. UPS Ground Freight, Inc., 2014 U.S. App. LEXIS 24554 (8th Cir. Dec. 30, 2014): Responding to serious misconduct during discovery, the district court1 sanctioned Dolores Comstock by dismissing her lawsuit. Comstock appeals this dismissal, and we affirm. 1  …
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Experts — Reliance on Business Plan without Inquiry into Qualifications of Preparers or Underlying Assumptions Renders Opinion Unreliable — Expert’s Alternate Opinion Should’ve Been Allowed: Exclusion of Critical Evidence Is Extreme Sanction

ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254 (3d Cir. 2012): 2. Expert Testimony on Damages In their cross-appeal, Plaintiffs argue that the District Court erred in excluding DeRamus's testimony on the issue of damages. The core of DeRamus's damages analysis was one page (titled " ...
ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254 (3d Cir. 2012): 2. Expert Testimony on Damages In their cross-appeal, Plaintiffs argue that the District Court erred in excluding DeRamus's testimony on the issue of damages. The core of DeRamus's …
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Internet Evidence — Circumstantial Authentication That Defendants Made Yelp Postings: Failure to Deny Authorship and Repetition of Substantially the Same Alleged Grievances in Court Filings Suffices

Pham v. Lee, 2014 Cal. App. Unpub. LEXIS 8812 (Cal. Ct. App. Dec. 11, 2014): Plaintiff Randal Pham, an ophthalmologist, filed a defamation action against defendants Jenny Lee and Alvin Lee (the Lees) for statements they made on the Internet accusing Dr. Pham of fraud, among other things. The Lees moved to strike Dr. P ...
Pham v. Lee, 2014 Cal. App. Unpub. LEXIS 8812 (Cal. Ct. App. Dec. 11, 2014): Plaintiff Randal Pham, an ophthalmologist, filed a defamation action against defendants Jenny Lee and Alvin Lee (the Lees) for statements they made on the Internet …
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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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