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

Spoliation — Bad Faith Required for Dismissal Sanction (Eighth Circuit) — Failure to Request Lesser Sanctions Precludes Later Argument They Should Have Been Granted

Bisges v. Gargula (In re Clink), 2014 U.S. App. LEXIS 20177 (8th Cir. Oct. 21, 2014): I. Background Bisges represented Anne Clink in her [*2]  Chapter 7 bankruptcy case. After the case was closed, United States Trustee Nancy Gargula moved to reopen the case because she learned that Clink possibly had f ...
Bisges v. Gargula (In re Clink), 2014 U.S. App. LEXIS 20177 (8th Cir. Oct. 21, 2014): I. Background Bisges represented Anne Clink in her [*2]  Chapter 7 bankruptcy case. After the case was closed, United States Trustee Nancy Gargula moved …
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Judicial Notice of Internet Evidence — Court Records from Westlaw — Westlaw as a Reliable Source

Pickens v. Klee, 2014 U.S. Dist. LEXIS 163390 (E.D. Mich. Nov. 21, 2014): A habeas petitioner has the burden of proving that he or she has exhausted his or her state court remedies. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). Federal habeas corpus relief is unavailable to a state prisoner who fails to allege that he or ...
Pickens v. Klee, 2014 U.S. Dist. LEXIS 163390 (E.D. Mich. Nov. 21, 2014): A habeas petitioner has the burden of proving that he or she has exhausted his or her state court remedies. See Rust v. Zent, 17 F.3d 155,…
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Interlocutory Appeals — Rule 54(b): Separateness Requirement — Fugitive Disentitlement Doctrine Does Not Apply to Civil Litigant Refusing to Participate in Lawsuit: Judicial Wariness of Doctrine’s Civil Application — Bond on Appeal Is Optional

Niemi v. Lasshofer, 2014 U.S. App. LEXIS 21365 (10th Cir. Nov. 4, 2014): John Niemi, Robert Naegele, III, and Jesper Parnevik ("Plaintiffs" or "Appellees") claim that Erwin Lasshofer and three companies affiliated with him (the "Lasshofer Defendants" or "Appellants"), along with other co-conspir ...
Niemi v. Lasshofer, 2014 U.S. App. LEXIS 21365 (10th Cir. Nov. 4, 2014): John Niemi, Robert Naegele, III, and Jesper Parnevik ("Plaintiffs" or "Appellees") claim that Erwin Lasshofer and three companies affiliated with him (the "Lasshofer Defendants" or "Appellants"), along…
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Does Twiqbal’s Plausibility Standard Apply to Affirmative Defenses? Case Law Split — Policy Arguments against Application (Including Reliance on Still-Extent Official Form)

Jam Tire, Inc. v. Harbin, 2014 U.S. Dist. LEXIS 124581 (N.D. Ohio Sept. 5, 2013): Since the Supreme Court's decision in Iqbal v. Ashcroft, 556 U.S. 662 (2009), more than 230 federal decisions have addressed whether the plausibility standard applies to affirmative defenses pled in an answer. William M. Jan ...
Jam Tire, Inc. v. Harbin, 2014 U.S. Dist. LEXIS 124581 (N.D. Ohio Sept. 5, 2013): Since the Supreme Court's decision in Iqbal v. Ashcroft, 556 U.S. 662 (2009), more than 230 federal decisions have addressed whether the plausibility standard applies …
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Class Actions — Circuit Split as to Whether Offer of Complete Relief to Named Plaintiff before Certification Motion Filed Moots Case — Split as to Whether Plaintiff May Immediately File Unsupported Certification Motion to Avoid Issue

Minniti v. Eilers, 2014 U.S. Dist. LEXIS 142439 (S.D. Fla. Sept. 23, 2014): THIS CAUSE has come before the court upon the Plaintiff's Motion for Class Certification [ECF No.4]. Plaintiff, Lauren Minniti, filed a Class Action Complaint [ECF No. 1] against John Hancock Financial Network, Inc., John Hancock Life & He ...
Minniti v. Eilers, 2014 U.S. Dist. LEXIS 142439 (S.D. Fla. Sept. 23, 2014): THIS CAUSE has come before the court upon the Plaintiff's Motion for Class Certification [ECF No.4]. Plaintiff, Lauren Minniti, filed a Class Action Complaint [ECF No. 1]…
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Email/Text — Difficulties in Satisfying the Present Sense Impression, Excited Utterance, State of Mind and Business Records Exceptions — In Limine Motion to Exclude Granted Only If Evidence Is Clearly Inadmissible on All Potential Grounds: Good Quote

Galloway v. Chesapeake Union Exempted Village Sch. Bd. of Educ., 2014 U.S. Dist. LEXIS 151678 (S.D. Ohio Oct. 27, 2014): This civil action is before the court on Defendants' omnibus motion in limine to exclude evidence.... I.  ANALYSIS Because a ruling on a motion < ...
Galloway v. Chesapeake Union Exempted Village Sch. Bd. of Educ., 2014 U.S. Dist. LEXIS 151678 (S.D. Ohio Oct. 27, 2014): This civil action is before the court on Defendants' omnibus motion in limine to exclude evidence…. I.  ANALYSIS Because a …
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Experts — New Opinion Based on Info Known at Time of Original Report Not Supplemental Report — If Facts Unchanged, 2d Report = Impermissible New Opinion — Preclusion Is Drastic, Imposed Rarely (Good Quotes)

  Coene v. 3M Co., 2014 U.S. Dist. LEXIS 128150 (W.D.N.Y. Sept. 11, 2014): 2. Analysis Rule 26(a)(2)(B)(i) of the Federal Rules of Civil Procedure provides that a written expert report must contain "a complete statement of all opinions the witness will express and the basis and reasons for ...
Coene v. 3M Co., 2014 U.S. Dist. LEXIS 128150 (W.D.N.Y. Sept. 11, 2014): 2. Analysis Rule 26(a)(2)(B)(i) of the Federal Rules of Civil Procedure provides that a written expert report must contain "a complete statement of all opinions the witness…
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28 U.S.C. § 1446(c)’s New Exception Allowing Removal after One Year If Plaintiff Acted in Bad Faith — Two Part Test — Reasons Plaintiffs Prefer State to Federal Court

Aguayo v. AMCO Ins. Co., 2014 U.S. Dist. LEXIS 160244 (D.N.M. Oct. 31, 2014): THIS MATTER comes before the Court on the Plaintiffs' Motion to Remand, filed May 28, 2014 (Doc. 12)("Motion"). The Court held a hearing on August 7, 2014. The primary issue is whether the Court should grant the Motion ...
Aguayo v. AMCO Ins. Co., 2014 U.S. Dist. LEXIS 160244 (D.N.M. Oct. 31, 2014): THIS MATTER comes before the Court on the Plaintiffs' Motion to Remand, filed May 28, 2014 (Doc. 12)("Motion"). The Court held a hearing on August 7, …
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Judicial Notice of Internet Evidence — A Federal District Court Is Permitted to Take Judicial Notice of Another Court’s Website

United States v. Newsome, 2014 U.S. Dist. LEXIS 150659 (S.D. Ohio Oct. 23, 2014): Newsome's second objection is to the Report's reference to the Montgomery County Clerk of Court's website for the indictment in Newsome's felonious assault case. He says this is a "clear and obvious error," but he doesn't sa ...
United States v. Newsome, 2014 U.S. Dist. LEXIS 150659 (S.D. Ohio Oct. 23, 2014): Newsome's second objection is to the Report's reference to the Montgomery County Clerk of Court's website for the indictment in Newsome's felonious assault case. He says…
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Federal Jurisdiction — Grable — If Success of Claim Only Partially Depends on Federal Law, or Does So Only in the Alternative, No JD — If Claims Contradicted by Federal Rules with Force of Law, Then JD But Also Preemption Defense

Manning v. Merrill Lynch Pierce Fenner & Smith, Inc., 2014 U.S. App. LEXIS 21362 (3d Cir. Nov. 10, 2014): After the District Court denied Plaintiffs' motion to remand this case to New Jersey state court, we granted their petition for an interlocutory appeal. The issue before us is whether there is federal-question jurisdiction over Plai ...
Manning v. Merrill Lynch Pierce Fenner & Smith, Inc., 2014 U.S. App. LEXIS 21362 (3d Cir. Nov. 10, 2014): After the District Court denied Plaintiffs' motion to remand this case to New Jersey state court, we granted their petition for…
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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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