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

Motion to Dismiss May Be Granted without Reaching Merits If It Is Unopposed — The Failure to Respond Is Viewed as a Concession or Dismissal Is Deemed an Appropriate Sanction for Failure to Respond

Blount v. Northrup Grumman Info. Tech. Overseas, Inc., 2014 U.S. Dist. LEXIS 146407 (E.D. Va. Oct. 14, 2014):  Before considering the merits of this motion, this Court must first address Blount's untimely filing. Blount's opposition was approximately one month late. At no point did Blount move for an extension of time. S ...
Blount v. Northrup Grumman Info. Tech. Overseas, Inc., 2014 U.S. Dist. LEXIS 146407 (E.D. Va. Oct. 14, 2014):  Before considering the merits of this motion, this Court must first address Blount's untimely filing. Blount's opposition was approximately one month late.…
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Recusal — 28 U.S.C. § 455 — Displeasure with Judge’s Legal Rulings Is Not an Adequate Basis for Recusal (Good Quote)

Collura v City of Phila., 2014 U.S. App. LEXIS 20810 (3d Cir. Oct. 27, 2014): B. Denial of Motions for Recusal To the extent that Collura seeks review of District [*7]  Court orders denying his motions for recusal, we reiterate what we said when denying Collura's petition for a writ of m ...
Collura v City of Phila., 2014 U.S. App. LEXIS 20810 (3d Cir. Oct. 27, 2014): B. Denial of Motions for Recusal To the extent that Collura seeks review of District [*7]  Court orders denying his motions for recusal, we reiterate…
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RICO — Hobbs Act: Hard Bargaining vs. Wrongful Use of Fear — Claim of Right Not Beaten by Claim Deal Lacks Subjective Value — Contract Breach ≠ “Wrongful” — State Statute Labels vs. Substance — Complaint Length Defeats Motion to Amend

United Brotherhood of Carpenters v. Building & Constr. Trades Dep’t, 2014 U.S. App. LEXIS 20667 (9th Cir. Oct. 28, 2014): We must decide whether a labor union's use of economic pressure is extortion under the Racketeer Influenced and Corrupt Organizations Act. I The Building and Constructi ...
United Brotherhood of Carpenters v. Building & Constr. Trades Dep’t, 2014 U.S. App. LEXIS 20667 (9th Cir. Oct. 28, 2014): We must decide whether a labor union's use of economic pressure is extortion under the Racketeer Influenced and Corrupt Organizations …
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Daubert — If Expert Testimony Based on “Good Grounds,” It Should Go to Jury — Ultimate Question Is Whether Expert Employs in Courtroom Same Level of Intellectual Rigor That Characterizes Expert Practice in the Field

Faulkner v. Arista Records LLC, 2014 U.S. Dist. LEXIS 129711 (S.D.N.Y. Sept. 15, 2014): "Courts within the Second Circuit have liberally construed expert qualification requirements." In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig., MDL No. 1358 (SAS), 2008 WL 1971538, at *5 (S.D.N.Y ...
Faulkner v. Arista Records LLC, 2014 U.S. Dist. LEXIS 129711 (S.D.N.Y. Sept. 15, 2014): "Courts within the Second Circuit have liberally construed expert qualification requirements." In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig., MDL No. 1358…
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Inherent Power Sanctions — Bad Faith Inferable If Acts Are “So Completely without Merit” — More Exacting Abuse of Discretion Standard in Sanctions Appeals — Claim Colorable If It Has Some Legal, Factual Support and a Reasonable Belief in It

Hollon v. Merck & Co., Inc., 2014 U.S. App. LEXIS 20237 (2d Cir. Oct. 20, 2014): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be VACATED AND REMANDED. Gary J. Douglas appeals from the judgment of the United States District Court for the Southern District of N ...
Hollon v. Merck & Co., Inc., 2014 U.S. App. LEXIS 20237 (2d Cir. Oct. 20, 2014): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be VACATED AND REMANDED. Gary J. Douglas …
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Derivative Actions — Massachusetts Business Trusts — Applicable Law (Substantive (Mass.) vs.Procedural (Forum) — Dismissal Based on Special Litigation Committee Investigation

Rotz v. Van Kampen Asset Mgmt., 2014 N.Y. Misc. LEXIS 4663 (Sup. Ct. N.Y. Cnty. Oct. 22, 2014): In these shareholder derivative suits, plaintiffs allege that certain officers of the nominal defendant trusts and the trusts' former investment advisers breached their fiduciary duties and wasted corporate assets by causing the trusts ...
Rotz v. Van Kampen Asset Mgmt., 2014 N.Y. Misc. LEXIS 4663 (Sup. Ct. N.Y. Cnty. Oct. 22, 2014): In these shareholder derivative suits, plaintiffs allege that certain officers of the nominal defendant trusts and the trusts' former investment advisers breached…
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Email/Text Admissibility — Authentication by Sender of Her Messages + Testimony They Were Sent to Recipient’s Address and Replies Were Consistent with Recipient’s Writing Style

State v. Womack, 2014 Wash. App. LEXIS 2566 (Wash. Ct. App. Oct. 21, 2014): N. Additional Ground 23 (Admission of E-mails) Womack claims the trial court erred by allowing the State to admit a copy of an e-mail between AW and Womack and allowing Voelker to testify that he received a copy of two e-mails ...
State v. Womack, 2014 Wash. App. LEXIS 2566 (Wash. Ct. App. Oct. 21, 2014): N. Additional Ground 23 (Admission of E-mails) Womack claims the trial court erred by allowing the State to admit a copy of an e-mail between AW…
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Inherent Power Sanction of Summary Judgment for Declining to Pay Attorney’s Fees Ordered as a Prerequisite to the Party’s Supplementing Its Claims (a Requirement of a Local Rule of Court) Reversed — Bad Faith Violation of Local Rule Essential

Anticancer, Inc. v. Pfizer, Inc., 2014 U.S. App. LEXIS 20059 (Fed. Cir. Oct. 20, 2014): This litigation concerns patents owned by AntiCancer, Inc. on technology related to the imaging of gene expression using a green fluorescent protein linked to a gene promoter. The fluorescent protein is derived from a species of green-glowing jell ...
Anticancer, Inc. v. Pfizer, Inc., 2014 U.S. App. LEXIS 20059 (Fed. Cir. Oct. 20, 2014): This litigation concerns patents owned by AntiCancer, Inc. on technology related to the imaging of gene expression using a green fluorescent protein linked to a…
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Experts / Daubert — The Abuse of Discretion Standard Applies as Much to the Trial Court’s Decisions about How to Determine Reliability as to Its Ultimate Conclusion

Decker v. GE Healthcare Inc., 2014 U.S. App. LEXIS 20049 (6th Cir. Oct. 20, 2014): We review the district court's decision to admit or exclude the testimony of a party's expert witness for abuse of discretion. Kumho Tire, 526 U.S. at 152; Sigler, 532 F.3d at 478. As the Supreme Court explained in Kumho Ti ...
Decker v. GE Healthcare Inc., 2014 U.S. App. LEXIS 20049 (6th Cir. Oct. 20, 2014): We review the district court's decision to admit or exclude the testimony of a party's expert witness for abuse of discretion. Kumho Tire, 526 U.S.…
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Judicial Recusal — May Judges Recuse Themselves from Part of a Case But Not All of It under § 455? — Circuit Split — Sixth Circuit Adopts Majority Rule that Partial Recusal Is Permissible

Decker v. GE Healthcare Inc., 2014 U.S. App. LEXIS 20049 (6th Cir. Oct. 20, 2014): On March 22, 2013, after twelve days of testimony and two days of deliberation, a jury returned a verdict in favor of the Deckers. Although the jury found for GEHC on the design defect and nonconformance to representation claims, the jury found for plai ...
Decker v. GE Healthcare Inc., 2014 U.S. App. LEXIS 20049 (6th Cir. Oct. 20, 2014): On March 22, 2013, after twelve days of testimony and two days of deliberation, a jury returned a verdict in favor of the Deckers. Although…
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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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