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

The Judicial Admission Exception to the Statute of Frauds — Sufficient for Party to Admit Essential Facts, Not Necessarily the Conclusion That a Contract Exists

Packgen v. BP Exploration & Prod. Co., 957 F. Supp. 2d 58 (D. Me. 2013): 2. The Judicial Admission Exception The statute of frauds contains a "judicial admission" exception that applies:    If the party against whom enforcement is sought admits in his pleading, test ...
Packgen v. BP Exploration & Prod. Co., 957 F. Supp. 2d 58 (D. Me. 2013): 2. The Judicial Admission Exception The statute of frauds contains a "judicial admission" exception that applies:    If the party against whom enforcement is sought admits…
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Elements of RICO Conspiracy, Pattern

United States v. John-Baptiste, 2014 U.S. App. LEXIS 2969 (3d Cir. Feb. 19, 2014): To establish a conviction for a RICO conspiracy, the government must show: (1) that two or more persons agreed to conduct or to participate, directly or indirectly, in the conduct of an enterprise's affairs through a pattern of racketeering ...
United States v. John-Baptiste, 2014 U.S. App. LEXIS 2969 (3d Cir. Feb. 19, 2014): To establish a conviction for a RICO conspiracy, the government must show: (1) that two or more persons agreed to conduct or to participate, directly or …
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Insurer That Breached Its Duty to Defend Is Bound by the Judgment against Its Insured but Otherwise Free to Contest Its Indemnification Obligation under the Policy

K2 Inv. Grp., LLC v. Am. Guarantee & Liab. Ins. Co., 2014 N.Y. LEXIS 201 (N.Y. Ct. App. Feb. 18, 2014): American Guarantee & Liability Insurance Company contends, on reargument, that our prior decision in this case, K2 Inv. Group, LLC v Am. Guar. & Liab. Ins. Co. (21 NY3d 384) (K2-I), erred by failing to take account ...
K2 Inv. Grp., LLC v. Am. Guarantee & Liab. Ins. Co., 2014 N.Y. LEXIS 201 (N.Y. Ct. App. Feb. 18, 2014): American Guarantee & Liability Insurance Company contends, on reargument, that our prior decision in this case, K2 Inv. Group,…
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Res Judicata — Respondent’s Failure to Assert in Arbitration His Defense that the Contract Was Procured by Fraud Precludes Later Lawsuit on that Ground — All Arbitrable Issues Must Be Submitted to Arbitration

  Clinton v. Hendricks & Lewis PLLC, 2014 U.S. App. LEXIS 3131 (9th Cir. Feb. 20, 2014): Plaintiff-Appellant George Clinton appeals district court orders (1) granting Hendricks & Lewis's ("H&L") Federal Rule of Civil Procedure 12(b)(6) motion to dismiss Clinton's fraudulent inducement and negligent m ...
Clinton v. Hendricks & Lewis PLLC, 2014 U.S. App. LEXIS 3131 (9th Cir. Feb. 20, 2014): Plaintiff-Appellant George Clinton appeals district court orders (1) granting Hendricks & Lewis's ("H&L") Federal Rule of Civil Procedure 12(b)(6) motion to dismiss Clinton's fraudulent…
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Rooker-Feldman Inapplicable If State Court Proceedings (Even Appeal) Still Pending — Does Not in Any Event Bar Claim State Court Proceeding Corrupted

Anderson v. Anderson, 2014 U.S. App. LEXIS 2777 (7th Cir. Feb. 14, 2014): Larry Anderson appeals the district court's dismissal of his § 1983 case alleging fraud on the court during his divorce proceedings in Brown County, Wisconsin. The district court dismissed on immunity and abstention grounds. We affirm the dismissal because ...
Anderson v. Anderson, 2014 U.S. App. LEXIS 2777 (7th Cir. Feb. 14, 2014): Larry Anderson appeals the district court's dismissal of his § 1983 case alleging fraud on the court during his divorce proceedings in Brown County, Wisconsin. The district…
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Legal Malpractice — If Lawyer, before Opining, Sees Red Flag That A Client’s Representation Is Incorrect, Lawyer Must Investigate, Can’t Rely on Rep — Statements at Argument and in Header of Brief = “Informal” Judicial Admissions, Not Binding

Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 2014 N.Y. App. Div. LEXIS 939 (1st Dept. Feb. 13, 2014) (majority opinion): In this legal malpractice action, plaintiffs allege that defendant law firm failed to provide them with the appropriate legal advice, and rendered a legal opinion without performing the n ...
Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 2014 N.Y. App. Div. LEXIS 939 (1st Dept. Feb. 13, 2014) (majority opinion): In this legal malpractice action, plaintiffs allege that defendant law firm failed to provide them with the …
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RICO — Where Defunding of Plaintiff’s Job Resulted from Discovery of Predicate Acts That Defrauded Third Party, Plaintiff’s Loss of Employment Was Not Caused by § 1962(b) Violation — Injury to Expectancy Interests ≠ RICO Standing

Jackson v. NAACP, 2013 U.S. App. LEXIS 20493 (5th Cir. Oct. 8, 2013):   I. FACTS AND PROCEDURAL HISTORY A.  Factual Background Tracie Jackson and Linda Dunson (collectively "Plaintiffs"), both lawyers, were employed by the National Association for the Advancement of Colore ...
Jackson v. NAACP, 2013 U.S. App. LEXIS 20493 (5th Cir. Oct. 8, 2013):   I. FACTS AND PROCEDURAL HISTORY A.  Factual Background Tracie Jackson and Linda Dunson (collectively "Plaintiffs"), both lawyers, were employed by the National Association for the Advancement of…
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Emails as Verbal Acts

Turner v. Am. Building Condo. Corp., 2014 U.S. Dist. LEXIS 15804 (S.D. Ohio Feb. 7, 2014): Insofar as defendants suggest that evidence introduced into the record for the first time in response to a motion for summary judgment cannot be considered by the Court in resolving the motion, defendants' argument is not well-taken. Further ...
Turner v. Am. Building Condo. Corp., 2014 U.S. Dist. LEXIS 15804 (S.D. Ohio Feb. 7, 2014): Insofar as defendants suggest that evidence introduced into the record for the first time in response to a motion for summary judgment cannot be…
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Inherent Power Sanctions — Bad Faith Delay of Proceedings Is Sanctionable, As Is Recklessly Failing to Investigate Facts or Lying to Court

Ass’n for Disabled Americans, Inc. v. Rodriguez, 2014 U.S. App. LEXIS 2273 (11th Cir. Feb. 6, 2014): On appeal, Charouhis contends the district court failed to make the requisite bad-faith finding before imposing sanctions under its inherent authority. We review a district court's imposition of sanctions pursuan ...
Ass’n for Disabled Americans, Inc. v. Rodriguez, 2014 U.S. App. LEXIS 2273 (11th Cir. Feb. 6, 2014): On appeal, Charouhis contends the district court failed to make the requisite bad-faith finding before imposing sanctions under its inherent authority. We review…
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Summary Evidence — When Is the Underlying Evidence Sufficiently Indigestible to Warrant a Summary Exhibit?

United States v. Appolon, 695 F.3d 44 (1st Cir. 2012): 1. The Summary Charts Daniel and Haltiwanger argue that the district court erred by admitting into evidence four charts summarizing the reams of financial data in this case. As with other evidentiary rulings,  [**27] our review is for abuse of discretion. ...
United States v. Appolon, 695 F.3d 44 (1st Cir. 2012): 1. The Summary Charts Daniel and Haltiwanger argue that the district court erred by admitting into evidence four charts summarizing the reams of financial data in this case. As with…
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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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