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

Attorney-Client Privilege — Crime-Fraud — Intent to Commit Crime Essential — Applies to Work Product — Showing for In Camera Questioning — Perlman Rule for Immediate Appeal If 3rd Party Likely to Disclose — Good Quote on Malleability of Memory

In re Grand Jury, 2014 U.S. App. LEXIS 2593 (3d Cir. Feb. 12, 2014): Corporation and Client (together, "Intervenors") are targets of an ongoing grand jury investigation into alleged violations of the Foreign Corrupt Practices Act ("FCPA"). The grand jury served a subpoena on Intervenors' former attor ...
In re Grand Jury, 2014 U.S. App. LEXIS 2593 (3d Cir. Feb. 12, 2014): Corporation and Client (together, "Intervenors") are targets of an ongoing grand jury investigation into alleged violations of the Foreign Corrupt Practices Act ("FCPA"). The grand jury …
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Email Authentication — Varieties of Circumstantial Evidence Sufficient to Satisfy Rule 901

Donati v. State, 2014 Md. App. LEXIS 6 (Md. Ct. Spec. App. Jan. 9, 2014): Admissibility of E-mails Appellant's first contention is that the circuit court abused its discretion by admitting e-mails that were not properly authenticated. The Maryland appellate courts have addressed the authent ...
Donati v. State, 2014 Md. App. LEXIS 6 (Md. Ct. Spec. App. Jan. 9, 2014): Admissibility of E-mails Appellant's first contention is that the circuit court abused its discretion by admitting e-mails that were not properly authenticated. The Maryland appellate…
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Must All Absent Class Members Have Suffered Injury? — Circuit Split

In re Deepwater Horizon, 739 F.3d 790 (5th Cir. 2014): [T]he crux of BP's standing argument is that Article III "preclude[s] certification of a settlement class that includes members that have suffered no injury" or "who suffered no harm caused by the Deepwater Horizon incident." In BP ...
In re Deepwater Horizon, 739 F.3d 790 (5th Cir. 2014): [T]he crux of BP's standing argument is that Article III "preclude[s] certification of a settlement class that includes members that have suffered no injury" or "who suffered no harm caused …
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Sanctions — Inherent Power Sanctions Require Clear and Convincing Proof of Bad Faith in Fifth Circuit — Imputation of Counsel’s Bad Faith Here Insufficient

In re Moore (Cadle v. Moore), 2014 U.S. App. LEXIS 470 (5th Cir Jan. 9, 2014): The Cadle Company ("Cadle") is a creditor of the bankruptcy estate of James H. Moore, III ("Moore"). Cadle originally brought suit against Moore in state court. After Moore filed for bankruptcy, Cadle removed its action to the bankruptcy ...
In re Moore (Cadle v. Moore), 2014 U.S. App. LEXIS 470 (5th Cir Jan. 9, 2014): The Cadle Company ("Cadle") is a creditor of the bankruptcy estate of James H. Moore, III ("Moore"). Cadle originally brought suit against Moore in…
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Service of Process via Facebook Alone Inadequate to Satisfy Due Process — Use of Facebook to Effect Supplemental Service May Be Permissible

Joe Hand Promotions, Inc. v. Carrette, 2013 U.S. Dist. LEXIS 109731 (D. Kan. July 9, 2013): The plaintiff, Joe Hand Promotions, Inc., is a television distributor of pay-per-view and closed circuit special events. Plaintiff claims that the defendants, Mario Carrette and M & B, Inc., both doing business as "EL TAPATIO," unlawf ...
Joe Hand Promotions, Inc. v. Carrette, 2013 U.S. Dist. LEXIS 109731 (D. Kan. July 9, 2013): The plaintiff, Joe Hand Promotions, Inc., is a television distributor of pay-per-view and closed circuit special events. Plaintiff claims that the defendants, Mario Carrette…
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RICO Proximate Cause — Substantial Factor Test — Needn’t Be Sole Cause — Small Business Enterprise Subcontractor Whose Prime Lost Bids Due to SBE Fraud by Other Subs and Their Prime States Claim — Good Bridge v. Phoenix Bond Analysis

Corcel Corp. v. Ferguson Enters., Inc., 2014 U.S. App. LEXIS 2385 (11th Cir. Feb. 7, 2014): Appellant-Plaintiff Corcel Corporation, Inc. ("Corcel") sued Appellees-Defendants Ferguson Enterprises, Inc. ("Ferguson"), Line--Tec, Inc. ("LT") and AKA Services, Inc. ("AKA") (collectively &quo ...
Corcel Corp. v. Ferguson Enters., Inc., 2014 U.S. App. LEXIS 2385 (11th Cir. Feb. 7, 2014): Appellant-Plaintiff Corcel Corporation, Inc. ("Corcel") sued Appellees-Defendants Ferguson Enterprises, Inc. ("Ferguson"), Line–Tec, Inc. ("LT") and AKA Services, Inc. ("AKA") (collectively "the defendants") for alleged…
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Spoliation — Range of Sanctions Available Depending on Culpability — Bad Faith Not Prerequisite to Adverse Inference Instruction in Sixth Circuit — Meaning of Abuse of Discretion

Ross v. Am. Red Cross, 2014 U.S. App. LEXIS 1827 (6th Cir. Jan. 27, 2014): We review a district court's decision not to impose spoliation sanctions for abuse of discretion, "'[g]iving great deference to the district court's credibility determinations and findings of fact.'" Adkins v. Wolever, 692 F.3 ...
Ross v. Am. Red Cross, 2014 U.S. App. LEXIS 1827 (6th Cir. Jan. 27, 2014): We review a district court's decision not to impose spoliation sanctions for abuse of discretion, "'[g]iving great deference to the district court's credibility determinations and…
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Sanctions — Rule 37 and Spoliation Standards in Second Circuit — Bad Faith and Consideration of Lesser Alternatives Prerequisite to Dismissal — Contractual Right to Attorneys’ Fees for Prevailing Party Enforceable in New York

Metro Found. Contractors, Inc. v. Arch Ins. Co., 2014 U.S. App. LEXIS 589 (2d Cir. Jan. 13 2014): Metro Foundation Contractors, Inc., ("Metro") appeals the district court's judgment in favor of Marco Martelli Associates ("MMA") on its claims for breach of contract and indemnification and dismissing Metro's ...
Metro Found. Contractors, Inc. v. Arch Ins. Co., 2014 U.S. App. LEXIS 589 (2d Cir. Jan. 13 2014): Metro Foundation Contractors, Inc., ("Metro") appeals the district court's judgment in favor of Marco Martelli Associates ("MMA") on its claims for breach…
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Must SEC Plead and Prove Scienter on a Claim That a Director or Officer Made a Materially False Statement to an Auditor? Circuit Split — Agency’s Interpretation of Own Rules Entitled to Controlling Weight If Consistent with Statute

SEC v. Goldstone, 952 F. Supp. 2d 1060 (D. N.M. 2013): 5. Deceit of Auditors. Exchange Act rule 13b2-2 "provides that directors or officers shall not make or cause to be made a materially misleading statement or omission to an accountant in connection with SEC filings, among other things."
SEC v. Goldstone, 952 F. Supp. 2d 1060 (D. N.M. 2013): 5. Deceit of Auditors. Exchange Act rule 13b2-2 "provides that directors or officers shall not make or cause to be made a materially misleading statement or omission to …
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When a Statute Is Best Applied Uniformly, Compelling Reason Required to Convince Court to Create Circuit Split

Sachs v. Republic of Austria, 737 F.3d 583 (9th Cir. 2013): Because Congress passed the FSIA to promote uniformity in the treatment of foreign sovereign immunity, and because we think that Congress intended to permit suit in the United States against foreign sovereign common carriers that sell tickets in the United States ...
Sachs v. Republic of Austria, 737 F.3d 583 (9th Cir. 2013): Because Congress passed the FSIA to promote uniformity in the treatment of foreign sovereign immunity, and because we think that Congress intended to permit suit in the United States…
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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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