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

While Law of the Case Can Be Waived, the Mandate Rule — Requiring District Judge to Act in Accordance with Court of Appeals’ Mandate — Is Jurisdictional and Not Waivable — Circuit Split

  Rocho v. Life Ins. Co. of N. Am., 2013 U.S. App. LEXIS 24271 (6th Cir. Dec. 6, 2013): Next, LINA argues that once the previous panel of this Court affirmed the district court's judgment and issued its mandate, the subsequent district court proceedings violated the law of the case doctrine. Specifically, LINA invokes two ...
Rocho v. Life Ins. Co. of N. Am., 2013 U.S. App. LEXIS 24271 (6th Cir. Dec. 6, 2013): Next, LINA argues that once the previous panel of this Court affirmed the district court's judgment and issued its mandate, the subsequent…
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Legal Malpractice — New York’s 3-Year Statute of Limitations Accrues upon Injury, Not Discovery — Continuous Representation Exception Unsatisfied Where 4-Year Gap between Advice and Engagement to Defend IRS Attack on It

Landow v. Snow Becker Krauss, PC, 2013 N.Y. App. Div. LEXIS 7654 (2d Dept. Nov. 20, 2013): On March 5, 2003, the defendants, Richard Reichler, Snow Becker Krauss, P.C., and Meltzer, Lippe, Goldstein, and Breitsone, LLP, allegedly advised the plaintiff in an opinion letter that his proposed sale of certain property would not result in ...
Landow v. Snow Becker Krauss, PC, 2013 N.Y. App. Div. LEXIS 7654 (2d Dept. Nov. 20, 2013): On March 5, 2003, the defendants, Richard Reichler, Snow Becker Krauss, P.C., and Meltzer, Lippe, Goldstein, and Breitsone, LLP, allegedly advised the plaintiff…
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Experts — Improper Supplementation under Rule 26(e) — Factors for Assessing Whether Rule 16(f) Sanctions Should Issue — Harmless Error / Substantial Justification under Rule 37(c)(1) — Factors — Good Quote (Loophole)

Burger v. Excel Contractors, 2013 U.S. Dist. LEXIS 153535 (D. Nev. Oct. 25, 2013): Plaintiff alleges he is entitled to damages for injuries sustained as the result of an automobile collision. *** Defendants' request an order striking the March 19, 2013 supplemental expert report (attached as exhibit B to Defs' motion ( ...
Burger v. Excel Contractors, 2013 U.S. Dist. LEXIS 153535 (D. Nev. Oct. 25, 2013): Plaintiff alleges he is entitled to damages for injuries sustained as the result of an automobile collision. *** Defendants' request an order striking the March 19,…
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Rule 16(f) Sanctions for Violation of Protective Order — Standards — Allocation between Client and Counsel — Delaying Production beyond, and Conducting Discovery after, Cut-Off Date Violates 16(f) — Good Quotes

  Rahbarian v. Cawley, 2013 U.S. Dist. LEXIS 171123 (E.D. Cal. Dec. 2, 2013): The Court heard argument on Plaintiffs' Motion to Reopen Discovery, to Impose Sanctions, and to Obtain a Protective Order to Preserve Evidence, (ECF No. 59), on September 19, 2013. Cyrus Zal appeared for Plaintiffs, and David W ...
Rahbarian v. Cawley, 2013 U.S. Dist. LEXIS 171123 (E.D. Cal. Dec. 2, 2013): The Court heard argument on Plaintiffs' Motion to Reopen Discovery, to Impose Sanctions, and to Obtain a Protective Order to Preserve Evidence, (ECF No. 59), on September…
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Supreme Court: Forum Selection Clause Essentially Inviolable — Enforced via § 1404(a) or Forum Non Conveniens — Propriety of Venue under § 1406(a) or Rule 12(b)(3) Determined under § 1391 or Other Apt Venue Statute

Atlantic Marine Constr. Co. v. U.S. District Court, 2013 U.S. LEXIS 8775 (U.S. Dec. 3, 2013): The question in this case concerns the procedure that is available for a defendant in a civil case who seeks to enforce a forum-selection clause. We reject petitioner's argument that such a clause may be enforced by a motion to ...
Atlantic Marine Constr. Co. v. U.S. District Court, 2013 U.S. LEXIS 8775 (U.S. Dec. 3, 2013): The question in this case concerns the procedure that is available for a defendant in a civil case who seeks to enforce a forum-selection …
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Sanctions — Penal vs. Issue-Related — Differing Standards & Burdens — Due Process Satisfied by Court Warnings at Hearing — What theRule 26(e)(1) Duty to Correct Requires — Failure to Identify What Is Being Corrected Violates Duty

Johnson v. BAE Sys., Inc., 2013 U.S. Dist. LEXIS 170092 (D.D.C. Nov. 27, 2013): This matter comes before the Court on Defendants' Motion for Sanctions, Plaintiff's Opposition, and Defendants' Reply. The defendants ask this Court to impose sanctions pursuant to its inherent power because the plaintiff falsified med ...
Johnson v. BAE Sys., Inc., 2013 U.S. Dist. LEXIS 170092 (D.D.C. Nov. 27, 2013): This matter comes before the Court on Defendants' Motion for Sanctions, Plaintiff's Opposition, and Defendants' Reply. The defendants ask this Court to impose sanctions pursuant to …
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Arbitration — Waiver of Right to Arbitrate — Factors — “The Key to a Waiver Analysis Is Prejudice” (Good Quote)

Tech. in P’ship v. Rudin, 2013 U.S. App. LEXIS 19146 (2d Cir. Sept. 17, 2013): Federal policy strongly favors arbitration and waiver of a right to arbitrate is not lightly inferred, but a party can waive its right to arbitration "when it engages in protracted litigation that prejudices the opposing party."
Tech. in P’ship v. Rudin, 2013 U.S. App. LEXIS 19146 (2d Cir. Sept. 17, 2013): Federal policy strongly favors arbitration and waiver of a right to arbitrate is not lightly inferred, but a party can waive its right to arbitration …
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Nationwide Injunction Should Not Issue If Circuit Split Exists

Fox TV Stations, Inc. v. BarryDiller Content Sys., PLC, 915 F. Supp. 2d 1138, 1141-42 (C.D. Cal. 2012): B. Geographical Reach of Injunction Where Circuit Split Present Courts should not issue nationwide injunctions where the injunction would not issue under the law of another circuit.
Fox TV Stations, Inc. v. BarryDiller Content Sys., PLC, 915 F. Supp. 2d 1138, 1141-42 (C.D. Cal. 2012): B. Geographical Reach of Injunction Where Circuit Split Present Courts should not issue nationwide injunctions where the injunction would not issue under …
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Retained vs. Unretained Experts — Identifying Characteristics of Each and Limitations on the Scope of Testimony of the Latter

Compass Bank v. Eager Road Assocs., LLC, 2013 U.S. Dist. LEXIS 154118 (E.D. Mo. Oct. 28, 2013): In the First Amended Complaint, the Banks seek damages for the breach of a Settlement Agreement between the parties arising out of   an underlying lawsuit brought in this district. (ECF No. 107). The dispute un ...
Compass Bank v. Eager Road Assocs., LLC, 2013 U.S. Dist. LEXIS 154118 (E.D. Mo. Oct. 28, 2013): In the First Amended Complaint, the Banks seek damages for the breach of a Settlement Agreement between the parties arising out of   an…
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Spoliation — Fourth Circuit Standard — Intentionality But Not Bad Faith — Failure to Trigger Duty to Preserve Bars Sanction for Routine Recycling — Spoliation, Alone, No Ground for Civil Cause of Action under Federal or Admiralty Law

Turner v. United States, 2013 U.S. App. LEXIS 23349 (4th Cir. Nov. 20, 2013): The district court properly denied Ms. Turner's motion for sanctions based on spoliation. Spoliation is a rule of evidence, and the decision to impose sanctions for violations is one "'administered at the discretion of the trial court'" ...
Turner v. United States, 2013 U.S. App. LEXIS 23349 (4th Cir. Nov. 20, 2013): The district court properly denied Ms. Turner's motion for sanctions based on spoliation. Spoliation is a rule of evidence, and the decision to impose sanctions for…
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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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