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

Email / Text Admissibility — Texts Properly Admitted for Impeachment Purposes Only, Pursuant to Rule 613(a)

I. ADMISSION OF TEXT MESSAGE EVIDENCE People v. Webb, 2014 Mich. App. LEXIS 1916 (Mich. Ct. App. Oct. 16, 2014): Defendant first argues that the trial court erred in admitting evidence regarding his stepdaughter's text messages. A trial court's decision to admit or deny evidence is reviewed for an abuse ...
I. ADMISSION OF TEXT MESSAGE EVIDENCE People v. Webb, 2014 Mich. App. LEXIS 1916 (Mich. Ct. App. Oct. 16, 2014): Defendant first argues that the trial court erred in admitting evidence regarding his stepdaughter's text messages. A trial court's decision…
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Hearsay Problems Proving Legislative Intent through Newspaper Articles — Limited Utility of Residual Exception (Rule 807) — Alternate Proof

Planned Parenthood SE, Inc. v. Strange, 2014 U.S. Dist. LEXIS 148662 (M.D. Ala. Oct. 20, 2014): On August 4, 2014, the court issued an opinion on the merits of the plaintiffs' constitutional claim against the staff-privileges requirement of Alabama's Women's Health and Safety Act, 1975 Ala. Code § 26-23E-4(c). Se ...
Planned Parenthood SE, Inc. v. Strange, 2014 U.S. Dist. LEXIS 148662 (M.D. Ala. Oct. 20, 2014): On August 4, 2014, the court issued an opinion on the merits of the plaintiffs' constitutional claim against the staff-privileges requirement of Alabama's Women's…
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Spoliation — Sanctions, Adverse Inference Instruction Denied — Variety of Other Curative Measures Imposed (Illustrative of What Proposed Rule 37(e) Might Contemplate)

Decker v. GE Healthcare Inc., 2014 U.S. App. LEXIS 20049 (6th Cir. Oct. 20, 2014): In 2005, in connection with a magnetic resonance imaging procedure ("MRI"), Paul Decker received a dose of Omniscan, a gadolinium-based contrast agent manufactured by GE Healthcare [*2]  Inc. and GE Healthcare AS ("GEHC& ...
Decker v. GE Healthcare Inc., 2014 U.S. App. LEXIS 20049 (6th Cir. Oct. 20, 2014): In 2005, in connection with a magnetic resonance imaging procedure ("MRI"), Paul Decker received a dose of Omniscan, a gadolinium-based contrast agent manufactured by GE…
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Is All Legal Advice Privileged or Only If Confidential Client Information Is Revealed? — Circuit Split — Corporate Antitrust Compliance Policy ≠ Privileged — Primarily, a Business Policy—Wide Distribution, Not Labeling It Confidential = Waiver

In re Domestic Drywall Antitrust Litig., 2014 U.S. Dist. LEXIS 144263 (E.D. Pa. Oct. 9, 2014): At issue is whether the Court should grant the Indirect Purchaser Plaintiffs' motion to compel production of Defendant CertainTeed Gypsum, Inc.'s antitrust compliance policy, which CertainTeed argues is shielded by the attorn ...
In re Domestic Drywall Antitrust Litig., 2014 U.S. Dist. LEXIS 144263 (E.D. Pa. Oct. 9, 2014): At issue is whether the Court should grant the Indirect Purchaser Plaintiffs' motion to compel production of Defendant CertainTeed Gypsum, Inc.'s antitrust compliance policy, …
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§ 1447(c) Sanctions — Where No Public Information Disclosed Citizenship of Members of LLC, Except Parent Whose Citizenship Supported Diversity Jurisdiction, Removal Based on Diversity Not Sanctionable

Castleton Square, LLC v. ShopperTrak RCT Corp., 2014 U.S. Dist. LEXIS 148521 (S.D. Ind. Oct. 20, 2014): Plaintiff, Castleton Square, LLC, moves to remand the present action against ShopperTrak RCT Corporation because the parties are not completely diverse. Castleton Square also seeks an award of costs, expenses, and attorneys' fe ...
Castleton Square, LLC v. ShopperTrak RCT Corp., 2014 U.S. Dist. LEXIS 148521 (S.D. Ind. Oct. 20, 2014): Plaintiff, Castleton Square, LLC, moves to remand the present action against ShopperTrak RCT Corporation because the parties are not completely diverse. Castleton Square…
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The Limits of Stipulation — Yes, There Are Things Parties Cannot Stipulate to

In re Deepwater Horizon, 753 F.3d 516 (5th Cir. 2014) (Clement, J., dissenting): Even with the assent of all parties, judges still have the obligation to reject stipulations that are not factually true. See People v. Marling, 116 Cal. App. 3d 284, 172 Cal. Rptr. 109 (Ct. App. 1981) ("Although a r ...
In re Deepwater Horizon, 753 F.3d 516 (5th Cir. 2014) (Clement, J., dissenting): Even with the assent of all parties, judges still have the obligation to reject stipulations that are not factually true. See People v. Marling, 116 Cal. App.…
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RICO — Enterprise, Non-Fraud Claims Need Only Satisfy 8(a), Not 9(b) — Plausible Nexus between Pattern, Enterprise Essential — RICO Not Violated Every Time Two People Violate Predicates — No Need to Move for Leave to Amend; Request in Brief Enough

D. Penguin Bros. Ltd. v. City Nat’l Bank, 2014 U.S. App. LEXIS 19909 (2d Cir. Oct. 16, 2014): Plaintiffs-Appellants are two real estate developers, Pete Jacov and Avraham Glattman, and multiple corporations and limited liability companies co-owned by them (collectively, "plaintiffs"). Plaintiffs allege that defendants Dav ...
D. Penguin Bros. Ltd. v. City Nat’l Bank, 2014 U.S. App. LEXIS 19909 (2d Cir. Oct. 16, 2014): Plaintiffs-Appellants are two real estate developers, Pete Jacov and Avraham Glattman, and multiple corporations and limited liability companies co-owned by them (collectively,…
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Securities — Corporate Scienter — Must Misrepresentation Be Made by Someone Harboring Scienter, Or May Someone Else Have It? If the Latter, How High in the Hierarchy Must the Speaker Be? Circuit Split — New Sixth Circuit Standard

In re Omnicare, Inc. Secs. Litig., 2014 U.S. App. LEXIS 19326 (6th Cir. Oct. 10, 2014): B. Element Two: Scienter To satisfy Element Two, plaintiffs must plead facts showing that defendants had a "'mental state embracing intent to deceive, manipulate or defraud.'" In re Comshare, 183 F.3d a ...
In re Omnicare, Inc. Secs. Litig., 2014 U.S. App. LEXIS 19326 (6th Cir. Oct. 10, 2014): B. Element Two: Scienter To satisfy Element Two, plaintiffs must plead facts showing that defendants had a "'mental state embracing intent to deceive, manipulate…
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Supplemental Expert Reports — Need to Rely on Information Previously Unknown — Substantial Justification and Harmless Error: Four-Factor Test (Second Circuit)

Faulkner v. Arista Records LLC, 2014 U.S. Dist. LEXIS 129711 (S.D.N.Y. Sept. 15, 2014): Under Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure expert [*28]  testimony must be accompanied by a written report which shall contain, inter alia, "a complete statement o ...
Faulkner v. Arista Records LLC, 2014 U.S. Dist. LEXIS 129711 (S.D.N.Y. Sept. 15, 2014): Under Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure expert [*28]  testimony must be accompanied by a written report which shall contain, inter alia, "a…
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Class Actions — Does American Pipe Toll Statutes of Repose? — Circuit Split

In re BP plc MDL Secs. Litig., 2014 U.S. Dist. LEXIS 138900 (S.D. Tex. Sept. 30, 2014): 2.  The statute of repose was also tolled. Alternatively, Defendants contend that the five-year period of repose found in 28 U.S.C. § 1658(b)(2) is not subject to American Pipe to ...
In re BP plc MDL Secs. Litig., 2014 U.S. Dist. LEXIS 138900 (S.D. Tex. Sept. 30, 2014): 2.  The statute of repose was also tolled. Alternatively, Defendants contend that the five-year period of repose found in 28 U.S.C. § 1658(b)(2) …
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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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