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

Morrison’s Ban on Extraterritorial Application of Securities Laws Precludes Claims Arising out of Foreign-Issued Securities Cross-Listed on a U.S. Exchange

City of Pontiac Policemen’s & Firemen’s Retirement Sys. V. UBS AG, 752 F.3d 173 (2d Cir. 2014): In this appeal we consider, as a matter of first impression, whether the bar on extraterritorial application of the United States securities laws, as set forth in Morrison v. National Australia Bank Ltd. ...
City of Pontiac Policemen’s & Firemen’s Retirement Sys. V. UBS AG, 752 F.3d 173 (2d Cir. 2014): In this appeal we consider, as a matter of first impression, whether the bar on extraterritorial application of the United States securities…
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Internet and Email Evidence — Circumstantial Evidence Sufficient to Show Authorship of Reviews Posted on Web and of Emails

Judge v. Randell, 2014 Cal. App. Unpub. LEXIS 4767 (Cal. Ct. App. July 7, 2014): Lori Randell (Randell) appeals from an order denying her motion to strike a defamation cause of action from the complaint of respondent, Gregory Judge (Judge), pursuant to the "anti-SLAPP" statute. (Code Civ. Proc., 425.16 (section 425.16
Judge v. Randell, 2014 Cal. App. Unpub. LEXIS 4767 (Cal. Ct. App. July 7, 2014): Lori Randell (Randell) appeals from an order denying her motion to strike a defamation cause of action from the complaint of respondent, Gregory Judge (Judge),…
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RICO — Lexmark Rejects “Statutory Standing” for Statutory Analysis Whether Plaintiff Is Intended Beneficiary — Evidence of Bribery of Blagojevich Sufficient to Establish Proximate Cause

Empress Casino Joliet Corp. v Johnston, 2014 U.S. App. LEXIS 15713 (7th Cir. Aug. 15, 2014): Deals are the stuff of legislating. Although logrolling may appear unseemly some of the time, it is not, by itself, illegal. Bribes are. This case requires us once again to decide whether some shenanigans in the Illinois General Assemb ...
Empress Casino Joliet Corp. v Johnston, 2014 U.S. App. LEXIS 15713 (7th Cir. Aug. 15, 2014): Deals are the stuff of legislating. Although logrolling may appear unseemly some of the time, it is not, by itself, illegal. Bribes are. This …
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Fugitive Disentitlement Doctrine Narrowly Applied in Civil Cases — “Necessity” Vital — Indignity, Deterrence Inapt — Prejudice, Delay, Frustration, Unenforceability of Judgment Key — Dodging Prosecution Not Enough

Mastro v. Rigby, 2014 U.S. App. LEXIS 16255 (9th Cir. August 22, 2014): I. James Rigby (the "Trustee"), in his capacity as Trustee for the Chapter 7 bankruptcy estate of Linda's husband, Michael Mastro ("Michael"), filed an adversary proceeding against Linda. The Trustee alleged, int ...
Mastro v. Rigby, 2014 U.S. App. LEXIS 16255 (9th Cir. August 22, 2014): I. James Rigby (the "Trustee"), in his capacity as Trustee for the Chapter 7 bankruptcy estate of Linda's husband, Michael Mastro ("Michael"), filed an adversary proceeding…
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The Risk of Deposing Unretained Experts (They Can Testify Despite Inadequte Disclosures) — Hybrid Witnesses and Rule 26(a)(2)(C)

Burreson v. BASF Corp., 2014 U.S. Dist. LEXIS 117590 (E.D. Cal. Aug. 22, 2014): The disclosure requirements of Rule 26(a)(2)(B) have, at times, led to tension regarding when disclosure is triggered. In Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 826 (9th Cir. 2011), the Ninth Circuit addressed the si ...
Burreson v. BASF Corp., 2014 U.S. Dist. LEXIS 117590 (E.D. Cal. Aug. 22, 2014): The disclosure requirements of Rule 26(a)(2)(B) have, at times, led to tension regarding when disclosure is triggered. In Goodman v. Staples The Office Superstore, LLC, 644…
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RICO — Statute of Limitations Accrues When Plaintiff Is Aware of Its Injury, Even If Not the Identity of the Wrongdoer — Must Exercise Diligence to Determine Identity and Commence Suit within 4 Years

Rob’t L. Kroenlein Trust v. Kirchhefer, 2014 U.S. App. LEXIS 16296 (10th Cir. Aug. 25, 2014): The Robert L. Kroenlein Trust owns and operates J&B Liquors, a business in Torrington, Wyoming. In 2005, a salesman for one of J&B's beer distributors, Gary Kirchhefer, began stealing beer from J&B's account and reselling th ...
Rob’t L. Kroenlein Trust v. Kirchhefer, 2014 U.S. App. LEXIS 16296 (10th Cir. Aug. 25, 2014): The Robert L. Kroenlein Trust owns and operates J&B Liquors, a business in Torrington, Wyoming. In 2005, a salesman for one of J&B's beer …
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Contractual Duty to “Reimburse” Attorneys’ Fees “Incurred” by Victorious Party Doesn’t Require Payment of Fees That New Employer Agreed to Cover for Employee-Defendants — Contract ≠ Rule 37 / Statutes or Rules Generally (Good Quotes)

TruGreen Cos., LLC v. Mower Bros., Inc., 2014 U.S. App. LEXIS 12513 (10th Cir. July 2, 2014): Back in 2006 TruGreen managers felt betrayed when a handful of employees left to work for a rival lawn care company. TruGreen sued, charging its former employees with breaching their employment contracts. In the end, the company lost that cla ...
TruGreen Cos., LLC v. Mower Bros., Inc., 2014 U.S. App. LEXIS 12513 (10th Cir. July 2, 2014): Back in 2006 TruGreen managers felt betrayed when a handful of employees left to work for a rival lawn care company. TruGreen sued,…
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Inherent Power Sanctions — 2-Pronged Test: Baselessness and Bad Faith — Meritless Motion for Reconsideration Containing Unsupported Attacks on Opponent

Smith v. Westchester Cnty. Dep’t of Corr., 2014 U.S. App. LEXIS 16494 (2d Cir. Aug. 26, 2014): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,$ ADJUDGED AND DECREED that the judgment of the district court be and hereby is AFFIRMED. Appellant Michael A. Deem appeals from orders dated September ...
Smith v. Westchester Cnty. Dep’t of Corr., 2014 U.S. App. LEXIS 16494 (2d Cir. Aug. 26, 2014): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,$ ADJUDGED AND DECREED that the judgment of the district court be and hereby is AFFIRMED. Appellant…
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Removal—§1447(d)’s Appeal Bar Doesn’t Apply If District Court Lacked Authority to Remand under §1447(c)—§1446(b)’s 1-Year Time Limit to Remove Diversity Case Is Procedural & Waivable, Like 30-Day Initial Removal Period

Smith v. Mylan, Inc., 2014 U.S. App. LEXIS 14978 (9th Cir. August 4, 2014): A state court action may not be removed to federal court on the basis of diversity jurisdiction more than one year after the action was filed. See 28 U.S.C. § 1446(b) (current version at 28 U.S.C. § 1446(c)).
Smith v. Mylan, Inc., 2014 U.S. App. LEXIS 14978 (9th Cir. August 4, 2014): A state court action may not be removed to federal court on the basis of diversity jurisdiction more than one year after the action was filed. …
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NJ Adopts Broad Common Interest Rule— A Common Purpose Suffices—No Litigation Needed—Counsel May Speak to Another’s Client

O’Boyle v. Borough of Longport, 2014 N.J. LEXIS 787 (N.J. Sup. Ct. July 21, 2014): This appeal allows the Court to address the application of the common interest rule, which extends the confidentiality of attorney-client communications and attorney work product to information shared with attorneys representing separate clients, in t ...
O’Boyle v. Borough of Longport, 2014 N.J. LEXIS 787 (N.J. Sup. Ct. July 21, 2014): This appeal allows the Court to address the application of the common interest rule, which extends the confidentiality of attorney-client communications and attorney work product…
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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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