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 — Sanctions in the Form of Extra Discovery Costs Caused by the Spoliation, Including the Cost of the Sanctions Motion

Herson v. City of Richmond, 2014 U.S. App. LEXIS 20467 (9th Cir. Oct. 21, 2014): 4. Finally, the district court did not err in granting the City's motion for sanctions. Courts may impose monetary sanctions in the amount of extra discovery costs caused by spoliation, including the cost of the sanctions motion. ...
Herson v. City of Richmond, 2014 U.S. App. LEXIS 20467 (9th Cir. Oct. 21, 2014): 4. Finally, the district court did not err in granting the City's motion for sanctions. Courts may impose monetary sanctions in the amount of extra …
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Rule 11 and § 1927 Sanctions Properly Denied Where Misconduct Occurred in Other Actions and Is Unrelated to Opponent’s Conduct in Pending Case

Barksdale v. United States, 2014 U.S. App. LEXIS 21404 (Fed. Cir. Nov. 10, 2014): Christopher Scott Barksdale ("Barksdale") appeals the decisions of the United States Court of Federal Claims ("Claims Court") dismissing his complaint for lack of jurisdiction and denying his motion for sanctions. See Barksdale v. ...
Barksdale v. United States, 2014 U.S. App. LEXIS 21404 (Fed. Cir. Nov. 10, 2014): Christopher Scott Barksdale ("Barksdale") appeals the decisions of the United States Court of Federal Claims ("Claims Court") dismissing his complaint for lack of jurisdiction and denying…
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Arbitration — Theories for Compelling Non-Parties to Arbitrate — All Governed by Applicable (State) Law — Rule 56 Standards Govern Motion to Compel Arbitration — Argument Raised Initially at Oral Argument, Like Footnote in Reply Brief, Waived

Flinkote Co. v. Aviva PLC, 2014 U.S. App. LEXIS 19272 (3d Cir. Oct. 9, 2014): We exercise plenary review over the District Court's order on a motion to compel arbitration. Quilloin v. Tenet Healthsystem Phila., Inc., 673 F.3d 221, 228 (3d Cir. 2012). In assessing the motion to compel arbitration itself, we apply t ...
Flinkote Co. v. Aviva PLC, 2014 U.S. App. LEXIS 19272 (3d Cir. Oct. 9, 2014): We exercise plenary review over the District Court's order on a motion to compel arbitration. Quilloin v. Tenet Healthsystem Phila., Inc., 673 F.3d 221, 228…
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Website Authentication: More Needed Than Lay Witness’s Testimony Site Is Nationally Recognized or Site’s Self-Serving Statements — Proof of Rx Drugs Requires More Than Visual Comparison to Web Pix — Limits on Reliability of Physicians’ Desk Ref

People v. Hard, 2014 Colo. App. LEXIS 1676 (Colo. Ct. App. Oct. 9, 2014):  First, although the People argue that information from Drugs.com is reliable because Trooper Hancey testified that Drugs.com is "nationally recognized" and that law enforcement officials rely on it when identifying unknown pills, the prosecu ...
People v. Hard, 2014 Colo. App. LEXIS 1676 (Colo. Ct. App. Oct. 9, 2014):  First, although the People argue that information from Drugs.com is reliable because Trooper Hancey testified that Drugs.com is "nationally recognized" and that law enforcement officials rely …
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Securities / Fraud / Disclosure – “Just because something is disclosed doesn’t mean it wasn’t lost in a mass of detail” (Good Quotes from FT)

From Financial Times, Lex column, Nov. 13, 2014 (http://www.ft.com/intl/cms/s/3/97e10c30-6a86-11e4-a038-00144feabdc0.html?ftcamp=crm/email/20141113/nbe/LexEurope/product&siteedition=intl#axzz3Iwj0ZhG0): Financial reporting: short is sweet   Be honest, be clear, be done with it. As columnists know, a word limit ...
From Financial Times, Lex column, Nov. 13, 2014 (http://www.ft.com/intl/cms/s/3/97e10c30-6a86-11e4-a038-00144feabdc0.html?ftcamp=crm/email/20141113/nbe/LexEurope/product&siteedition=intl#axzz3Iwj0ZhG0): Financial reporting: short is sweet   Be honest, be clear, be done with it. As columnists know, a word limit focuses the mind and helps the reader. Lehman Brothers’ 2007 annual report…
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Discovery — Scrubbing Departing Employees’ Computers before Litigation Is Foreseeable ≠ Spoliation — It Is an Obvious Truism That a Court Should Not Enter an Order Compelling a Party to Produce Documents That Don’t Exist (Good Quote)

Wells v. JPC Eqestrian, Inc., 2014 U.S. Dist. LEXIS 156407 (M.D. Pa. Nov. 4, 2014): A. Email The plaintiffs first contend that the defendants have failed to produce relevant emails in response to their original discovery requests which sought emails that mention, or refer to the plaintiffs in any way shape or f ...
Wells v. JPC Eqestrian, Inc., 2014 U.S. Dist. LEXIS 156407 (M.D. Pa. Nov. 4, 2014): A. Email The plaintiffs first contend that the defendants have failed to produce relevant emails in response to their original discovery requests which sought emails…
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Sanctions — 60-Day Suspension for Falsely Representing Motion Was Unopposed — Inherent Power to Suspend or Dismiss Counsel (No Bad Faith Mentioned or Needed) — Criminal Contempt Protections and Rule 11 Irrelevant

In re Grodner, 2014 U.S. App. LEXIS 20976 (5th Cir. Nov. 3, 2014): Attorney Donna U. Grodner challenges her sixty-day suspension from practicing in the Middle District of Louisiana. Finding that none of the numerous arguments she raises to challenge the suspension order are meritorious, we affirm. I. Th ...
In re Grodner, 2014 U.S. App. LEXIS 20976 (5th Cir. Nov. 3, 2014): Attorney Donna U. Grodner challenges her sixty-day suspension from practicing in the Middle District of Louisiana. Finding that none of the numerous arguments she raises to challenge…
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Class Actions — Do Absent Class Members Forfeit American Pipe Tolling by Filing Suit before Certification Is Denied? — Circuit Split, with 3 Recent Circuit Decisions — and This District Court — Saying No

In re BP plc MDL Secs. Litig., 2014 U.S. Dist. LEXIS 138920 (S.D. Tex. Sept. 30, 2014): 1.  The statute of limitations was tolled by the filing of the related federal class action. [*6] As described by the Court in the Mondrian Opinion, American Pipe tolling suspends the app ...
In re BP plc MDL Secs. Litig., 2014 U.S. Dist. LEXIS 138920 (S.D. Tex. Sept. 30, 2014): 1.  The statute of limitations was tolled by the filing of the related federal class action. [*6] As described by the Court in…
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Experts — 26(e)(2) Supplementation of Report — Factors Guiding Substantially-Justified or Harmless Analysis (10th Circuit) — Inability to Catch Expert “Flat-Footed” at Deposition Is Not a Type of Prejudice that Justifies Exclusion under 37(c)(1)

Gillum v. United States, 309 F. App'x 267 (10th Cir. 2009): In this Federal Tort Claims Act medical malpractice action, Kathleen Gillum, as the surviving spouse and executor of the estate of Donald Gillum, appeals the district court's exclusion of her expert witness's testimony and the resulting grant of summary judgment t ...
Gillum v. United States, 309 F. App'x 267 (10th Cir. 2009): In this Federal Tort Claims Act medical malpractice action, Kathleen Gillum, as the surviving spouse and executor of the estate of Donald Gillum, appeals the district court's exclusion of…
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Mere Existence of Issue of First Impression Insufficient to Warrant 1292(b) Interlocutory Appeal — If Questions of First Impression Alone Were Sufficient, Courts of Appeals Would Be Besieged with Piecemeal Appeals — Good Quote

Tavares v. S-L Dist. Co., 2014 U.S. Dist. LEXIS 146414 (M.D. Pa. June 12, 2014): Initially, we note that neither the Third Circuit nor Pennsylvania courts have addressed the particular choice-of-law issue before us. However, that the issue is one of first impression does not make a prima facie case for certification of appeal ...
Tavares v. S-L Dist. Co., 2014 U.S. Dist. LEXIS 146414 (M.D. Pa. June 12, 2014): Initially, we note that neither the Third Circuit nor Pennsylvania courts have addressed the particular choice-of-law issue before us. However, that the issue is one …
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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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