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

Impact of Including in a Rule 56.1 Statement of Uncontested Facts a Reservation of Rights to Contest Issues at Trial Not Disputed on Summary Judgment

Berbick v. Precinct 42, 2013 U.S. Dist. LEXIS 143955 (S.D.N.Y. Sept. 27, 2013): 2. The Rule 56.1 Statement Footnote A Rule 56.1 statement is "a short and concise statement . . . of the material facts as to which the moving party contends there is no genuine issue to be tried." Local R. Civ. P. 56.1( ...
Berbick v. Precinct 42, 2013 U.S. Dist. LEXIS 143955 (S.D.N.Y. Sept. 27, 2013): 2. The Rule 56.1 Statement Footnote A Rule 56.1 statement is "a short and concise statement . . . of the material facts as to which the…
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Texts — Authentication Standards for Text Messages = Same as for Emails — Testimony from Memory of One Party, Refreshed by Looking at Own Cell Phone, Suffices — Others’ Access to Phone Goes to Weight

State v. Elseman, 287 Neb. 134 (2014): Ryan M. Elseman appeals his convictions in the district court for Douglas County of first degree murder and use of a deadly weapon to commit a felony. Elseman claims that the court erroneously admitted evidence regarding the content of certain text messages.*** The Content of ...
State v. Elseman, 287 Neb. 134 (2014): Ryan M. Elseman appeals his convictions in the district court for Douglas County of first degree murder and use of a deadly weapon to commit a felony. Elseman claims that the court erroneously…
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Unconscionability of Arbitration Clause — Like Arbitrability Generally — Is Issue for Court, Even If Other Portions of Contract Are Also Challenged, As Long As Crux of Complaint Is Not Challenge to Contract As a Whole

Smith v. JEM Grp., 737 F.3d 636 (9th Cir. 2013): JEM argues that an arbitrator, rather than the district court, should have determined whether the arbitration clause is unconscionable.  JEM argues under Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S. Ct. 1204, 163 L. Ed. 2d 1038 (2006), and Na ...
Smith v. JEM Grp., 737 F.3d 636 (9th Cir. 2013): JEM argues that an arbitrator, rather than the district court, should have determined whether the arbitration clause is unconscionable.  JEM argues under Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S.…
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Website Evidence: Testimony of a Witness That She Downloaded Internet Postings and Confirmed Identities of Key Posters Suffices to Authenticate Them As Posted by Relevant Persons

Rivera v. Village of Farmingdale, 2013 U.S. Dist. LEXIS 181890 (E.D.N.Y. Dec. 31, 2013): In essence, Plaintiffs claim that, in violation of the Fair Housing Act, 42 U.S.C. §§ 3601 et seq., the Village carried out a redevelopment plan for an area populated predominantly by Latinos, intending to discriminate against or, ...
Rivera v. Village of Farmingdale, 2013 U.S. Dist. LEXIS 181890 (E.D.N.Y. Dec. 31, 2013): In essence, Plaintiffs claim that, in violation of the Fair Housing Act, 42 U.S.C. §§ 3601 et seq., the Village carried out a redevelopment plan for…
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Removal — Fraudulent Joinder — Settlement Communications Subject to Rule 408 May Be Considered to Determine Whether Parties Properly Joined

King v. Pfizer, Inc., 2013 U.S. Dist. LEXIS 181702 (D. Neb. Nov. 26, 2013): This matter is before the court on the plaintiffs', Cathy and Steve King (Kings), Motion to Remand (Filing No. 22). *** On September 17, 2013, the pharmaceutical defendants removed this action from the District Court of Lancaster County, Nebraska, ...
King v. Pfizer, Inc., 2013 U.S. Dist. LEXIS 181702 (D. Neb. Nov. 26, 2013): This matter is before the court on the plaintiffs', Cathy and Steve King (Kings), Motion to Remand (Filing No. 22). *** On September 17, 2013, the…
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Rule 26(g) Sanctions — Is a Pro Se Litigant Who Also Represents Another Party Eligible to Receive Attorneys’ Fees as a Discovery Sanction? — “Costs” Awardable to a Pro Se Litigant

Zalaski v. City of Hartford, 2013 U.S. App. LEXIS 14898 (2d Cir. July 23, 2013): Rule 26(g)(1) of the Rules of Civil Procedure provides that all discovery responses "must be signed by" an attorney of record, or by the party personally, if unrepresented, which signature certifies the accuracy of any disclosed information &qu ...
Zalaski v. City of Hartford, 2013 U.S. App. LEXIS 14898 (2d Cir. July 23, 2013): Rule 26(g)(1) of the Rules of Civil Procedure provides that all discovery responses "must be signed by" an attorney of record, or by the party…
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Do the Pleading Requirements of Iqbal and Twombly Apply to Affirmative Defenses? Circuit Split

Wells v. Hi Country Auto Group, 2013 U.S. Dist. LEXIS 162731 (D.N.M. Nov. 13, 2013): The Tenth Circuit has not yet ruled on whether the Iqbal/Twombly pleading standard applies to affirmative defenses. However, other courts in this circuit, this Court included, have held that the Iqbal/Twombly pleading standard does not apply ...
Wells v. Hi Country Auto Group, 2013 U.S. Dist. LEXIS 162731 (D.N.M. Nov. 13, 2013): The Tenth Circuit has not yet ruled on whether the Iqbal/Twombly pleading standard applies to affirmative defenses. However, other courts in this circuit, this Court …
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Jury Trial Waiver — Circuit Split as to Which Party Bears Burden of Proving That Waiver Was, or Was Not, Knowing and Voluntary

Avants v. Prospect Mortgage, LLC, 2013 U.S. Dist. LEXIS 177990 (D. N.M. Dec. 17, 2013): "The right of trial by jury as declared by the Seventh Amendment to the Constitution--or as provided by a federal statute--is preserved to the parties inviolate." Fed. R. Civ. P. 38. The right to a jury trial in the federal courts is gov ...
Avants v. Prospect Mortgage, LLC, 2013 U.S. Dist. LEXIS 177990 (D. N.M. Dec. 17, 2013): "The right of trial by jury as declared by the Seventh Amendment to the Constitution–or as provided by a federal statute–is preserved to the parties…
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Is a Dismissal on Grounds of Judicial Estoppel Reviewed De Novo or for Abuse of Discretion? — Circuit Split — Elements of Judicial Estoppel — Application to Administrative Proceedings — Prejudice Not Essential

Lia v. Saporito, 2013 U.S. App. LEXIS 20975 (2d Cir. Oct. 17, 2013): Plaintiff Don Lia appeals from the dismissal of his claims against defendants Michael Saporito and Jesse Armstead for specific performance, declaratory judgment, breach of fiduciary duty, constructive trust, unjust enrichment, and an accounting. Plaintiff  Mobile M ...
Lia v. Saporito, 2013 U.S. App. LEXIS 20975 (2d Cir. Oct. 17, 2013): Plaintiff Don Lia appeals from the dismissal of his claims against defendants Michael Saporito and Jesse Armstead for specific performance, declaratory judgment, breach of fiduciary duty, constructive…
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No Bad Faith Required for § 1927 Sanctions in Sixth Circuit — Test Is Whether Lawyer Knew or Should Have Known Position Was Frivolous — No Separate (or Any) Motion Required — Request in Brief for § 1927 Sanctions Suffices

Meathe v. Ret, 2013 U.S. App. LEXIS 22295 (6th Cir. Oct. 29, 2013) Plaintiff Cullan Meathe appeals the district court's grant of summary judgment in this direct shareholder suit alleging breach of fiduciary duty, breach of contract, silent fraud, civil conspiracy, and minority shareholder oppression. Meathe argues that the dist ...
Meathe v. Ret, 2013 U.S. App. LEXIS 22295 (6th Cir. Oct. 29, 2013) Plaintiff Cullan Meathe appeals the district court's grant of summary judgment in this direct shareholder suit alleging breach of fiduciary duty, breach of contract, silent fraud, civil…
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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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