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

“Terrorism Is the Modern-Day Equivalent of the Bubonic Plague: It Is an Existential Threat” — Good Quote

United States v. Mehanna, 2013 U.S. App. LEXIS 22893 (1st Cir. Nov. 13, 2013): “Terrorism is the modern-day equivalent of the bubonic plague: it is an existential threat.”     ...
United States v. Mehanna, 2013 U.S. App. LEXIS 22893 (1st Cir. Nov. 13, 2013): “Terrorism is the modern-day equivalent of the bubonic plague: it is an existential threat.”    
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Reassignment of Case to Different Judge — Disagreement with Adverse Rulings ≠ Reason to Doubt Impartiality of District Judge or to Reassign Case — Good Quote — Recusal Not Sought — Obtaining Extension ≠ 1927 Violation

United States v. Gregory, 2013 U.S. App. LEXIS 24300 (11th Cir. Dec. 6 2013): Gregory moves for sanctions against counsel for the government and for reassignment of his case to a different judge on remand, but his motions lack merit. Gregory requests that we impose sanctions against opposing counsel for obtaining an extension of ti ...
United States v. Gregory, 2013 U.S. App. LEXIS 24300 (11th Cir. Dec. 6 2013): Gregory moves for sanctions against counsel for the government and for reassignment of his case to a different judge on remand, but his motions lack merit.…
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In Predicting How State Court Would Decide Issue of First Impression, Federal Court Sitting in Diversity May Be Aided by Looking to Well-Reasoned Decisions from Other Jurisdictions — Learned Intermediary Doctrine — Erie

Saavedra v. Eli Lilly & Co., 2013 U.S. Dist. LEXIS 173055 (C.D. Cal. Feb. 26, 2013): The learned intermediary doctrine provides that a drug manufacturer has no duty to warn the ultimate consumer of potential side-effects of prescription medication, so long as adequate warnings are given to the prescribing physician. *** In tra ...
Saavedra v. Eli Lilly & Co., 2013 U.S. Dist. LEXIS 173055 (C.D. Cal. Feb. 26, 2013): The learned intermediary doctrine provides that a drug manufacturer has no duty to warn the ultimate consumer of potential side-effects of prescription medication, so…
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Email Summarizing Conference Call with 3d Party = Business Record — Regional Disapproval of Local Project = Verbal Act and Is Admissible for Impact on Locality and under Residual Exception — Handwritten Notes of Call = Present Sense Impression

Orix Public Fin., LLC v. Lake Cnty., MN, 2013 U.S. Dist. LEXIS 171547 (D. Minn. Dec. 5, 2013): In 2009, Defendant Lake County, Minnesota ("Lake County" or "the County") learned that it was eligible to participate in a federal loan and grant program that provides funding for the construction of broadband cable serv ...
Orix Public Fin., LLC v. Lake Cnty., MN, 2013 U.S. Dist. LEXIS 171547 (D. Minn. Dec. 5, 2013): In 2009, Defendant Lake County, Minnesota ("Lake County" or "the County") learned that it was eligible to participate in a federal loan…
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Motion for Leave to Amend Complaint after Adverse Judgment Not Decided under Liberal Standards of Rule 15 But Stricter Requirements of Rule 59 or 60

C & L Ward Bros. Co. v. Outsource Solutions, Inc., 2013 U.S. App. LEXIS 24468 (6th Cir. Dec. 3, 2013): I. MOTION FOR LEAVE TO AMEND THE COMPLAINT Ward claims that the district court should have granted its motion to amend the complaint brought in its Motion for Post-Judgment Relief, due to the liberal standar ...
C & L Ward Bros. Co. v. Outsource Solutions, Inc., 2013 U.S. App. LEXIS 24468 (6th Cir. Dec. 3, 2013): I. MOTION FOR LEAVE TO AMEND THE COMPLAINT Ward claims that the district court should have granted its motion to…
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Spoliation — Destruction of One of Many Identical, Allegedly Infringing Machines after Adverse Party Has Examined It Causes No Prejudice and Does Not Constitute Actionable Spoliation

Vistan Corp. v. Fadei USA, Inc., 2013 U.S. App. LEXIS 24005 (Fed. Cir. Dec. 3, 2013): Appellant Vistan Corporation is the owner U.S. Patent No. 5,870,949 ("the '949 patent"), which is directed to an apparatus for pitting soft fruit, such as prunes and dates. Claims 5 and 12, the claims at issue in this case, recite a ...
Vistan Corp. v. Fadei USA, Inc., 2013 U.S. App. LEXIS 24005 (Fed. Cir. Dec. 3, 2013): Appellant Vistan Corporation is the owner U.S. Patent No. 5,870,949 ("the '949 patent"), which is directed to an apparatus for pitting soft fruit, such…
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Disqualification — Court Must Rule on DQ Motion before Dispositive Motion — Partner’s Gender Discrimination Claim against Partnership Is “Substantially Related” to Past Representation of Partner in Attempting to Set Up Separate Practice

Bowers v. Ophthalmology Grp., 733 F.3d 647 (6th Cir. 2013): Bowers joined The Ophthalmology Group as an employee in 1999. In 2002, she became one of six partners of The Ophthalmology Group after buying into the partnership and signing a partnership agreement. On November 9, 2009, Bowers tendered a resignation letter to her partners ...
Bowers v. Ophthalmology Grp., 733 F.3d 647 (6th Cir. 2013): Bowers joined The Ophthalmology Group as an employee in 1999. In 2002, she became one of six partners of The Ophthalmology Group after buying into the partnership and signing a…
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Duty of Lower Courts to “Follow Both the Words and the Music of Supreme Court Opinions” — Good Quote

  United States v. Martinez-Cruz, 2013 U.S. App. LEXIS 24084 (D.C. Cir. Dec. 3, 2013) (Kavanaugh, Circuit Judge, dissenting): As a lower court in a system of absolute vertical stare decisis headed by one Supreme Court, it is essential that we follow both the words and the music of Supreme C ...
United States v. Martinez-Cruz, 2013 U.S. App. LEXIS 24084 (D.C. Cir. Dec. 3, 2013) (Kavanaugh, Circuit Judge, dissenting): As a lower court in a system of absolute vertical stare decisis headed by one Supreme Court, it is essential that we …
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Forum Non Conveniens — Less Deference Due a Foreign, as Opposed to a Domestic, Plaintiff’s Choice of Forum — Even If US Has an “Equal Access” Treaty with the Foreigner’s Country

Kisano Trade & Invest Ltd. v. Lemster, 2013 U.S. App. LEXIS 24697 (3d Cir. Dec. 12, 2013): We first consider whether the District Court abused its discretion in affording plaintiffs' choice of forum a lesser degree of deference than would be accorded a domestic plaintiff. "Ordinarily, a strong presumption of conveni ...
Kisano Trade & Invest Ltd. v. Lemster, 2013 U.S. App. LEXIS 24697 (3d Cir. Dec. 12, 2013): We first consider whether the District Court abused its discretion in affording plaintiffs' choice of forum a lesser degree of deference than would…
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Removal — Must Every Defendant Sign a Notice of Removal or Is One Signature Plus a Certification That All Others Consent Sufficient? Circuit Split

Ettlin v. Harris, 2013 U.S. Dist. LEXIS 170526 (C.D. Cal. Nov. 22, 2013): In a case involving multiple defendants, "[a]ll defendants must join in a removal petition." Hewitt v. City of Stanton, 798 F.2d 1230, 1232 (9th Cir. 1986). Although circuits are split as to what form a co-defendant's joinder in removal ...
Ettlin v. Harris, 2013 U.S. Dist. LEXIS 170526 (C.D. Cal. Nov. 22, 2013): In a case involving multiple defendants, "[a]ll defendants must join in a removal petition." Hewitt v. City of Stanton, 798 F.2d 1230, 1232 (9th Cir. 1986). Although …
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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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