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

Contracts — Breach of Condition Precedent Ends Other Party’s Obligations Regardless of Materiality — Spoliation Sanctions — Criteria for Striking Pleadings and for Dismissal (or Default)

St. Louis Produce Mkt. v. Hughes, 2013 U.S. App. LEXIS 23029 (8th Cir. Nov. 14, 2013): After protracted discovery, during which the district court sanctioned Hughes for discovery abuses, the court granted summary judgment for the Market on two alternative grounds. First, assuming for the sake of analysis that the separation agreement ...
St. Louis Produce Mkt. v. Hughes, 2013 U.S. App. LEXIS 23029 (8th Cir. Nov. 14, 2013): After protracted discovery, during which the district court sanctioned Hughes for discovery abuses, the court granted summary judgment for the Market on two alternative…
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Email Admissibility — Merely Forwarding Email without Comment ≠ Adoptive Admission — Hearsay within Hearsay

Taylor-Bertling v. Foley, 2013 Ariz. App. Unpub. LEXIS 1276 (Ariz. Ct. App. Nov. 20, 2013): P1 Appellants Dianne Taylor-Bertling and Richard Bertling (the Taylor-Bertlings) brought suit against appellee Theresa Foley alleging negligence. The jury found in favor of Foley and judgment was entered against the Taylor-Bertlings. *** < ...
Taylor-Bertling v. Foley, 2013 Ariz. App. Unpub. LEXIS 1276 (Ariz. Ct. App. Nov. 20, 2013): P1 Appellants Dianne Taylor-Bertling and Richard Bertling (the Taylor-Bertlings) brought suit against appellee Theresa Foley alleging negligence. The jury found in favor of Foley and…
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Orders Authorizing Subpoenas and Other Discovery under 28 U.S.C. § 1782 Are Properly Issued Ex Parte

In re Ex Parte Application of Société d'Etude De Réalisation et d'Exploitation pour le Traitement du Mais, ,2013 U.S. Dist. LEXIS 167219 (E.D. Pa. Nov. 22, 2013): On November 20, 2013, Société d'Etude de Réalisation et d'Exploitation pour le Traitement du Mais ("SERETRAM") applied for an order for leave ...
In re Ex Parte Application of Société d'Etude De Réalisation et d'Exploitation pour le Traitement du Mais, ,2013 U.S. Dist. LEXIS 167219 (E.D. Pa. Nov. 22, 2013): On November 20, 2013, Société d'Etude de Réalisation et d'Exploitation pour le Traitement…
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Experts — Failure to Make 26(a)(2)(C) Expert Disclosure for Treating Physician (and, Presumably, Anybody Else) Limits Testimony to That of a Fact Witness

Vandivier v. United States, 2013 U.S. Dist. LEXIS 163295 (S.D. Ind. Nov. 16, 2013): A treating physician may be called upon to provide expert testimony if he or she is providing opinions based upon specialized knowledge, even if those opinions were formed during the course of the plaintiff's treatment. See O'Conner v. Commonw ...
Vandivier v. United States, 2013 U.S. Dist. LEXIS 163295 (S.D. Ind. Nov. 16, 2013): A treating physician may be called upon to provide expert testimony if he or she is providing opinions based upon specialized knowledge, even if those opinions…
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A Judgment Registered in Federal Court under 28 U.S.C. § 1963 Doesn’t Create a New Judgment That Can Be Re-Registered in a Second Federal Court Where It Had Once Been Registered But Has Expired

Fidelity Nat’l Fin., Inc. v. Friedman, 939 F. Supp. 2d 974 (D. Ariz. 2013): This dispute, now in its second decade, pertains to the latest attempt by plaintiffs, Fidelity National Financial, Inc. and Fidelity Express Network, Inc. ("Fidelity"), to enforce a judgment. Fidelity obtained that judgment which, with interest, n ...
Fidelity Nat’l Fin., Inc. v. Friedman, 939 F. Supp. 2d 974 (D. Ariz. 2013): This dispute, now in its second decade, pertains to the latest attempt by plaintiffs, Fidelity National Financial, Inc. and Fidelity Express Network, Inc. ("Fidelity"), to enforce…
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§ 1927 Sanctions Imposable Only on Lawyers, Not Law Firms — Failure to Identify Lawyer in Motion Fatal — Sixth Circuit 1927 Standards — Delay in Filing Motion Partially to Blame for Prolonging Case

Meathe v. Ret, 2013 U.S. Dist. LEXIS 166999 (E.D. Mich. Nov. 25, 2013): As to the substantive question of whether sanctions should be imposed under §1927, the Court must consider whether a lawyer knows or reasonably should have known that the claim being pursued is frivolous. The statute requires "a showing of somethin ...
Meathe v. Ret, 2013 U.S. Dist. LEXIS 166999 (E.D. Mich. Nov. 25, 2013): As to the substantive question of whether sanctions should be imposed under §1927, the Court must consider whether a lawyer knows or reasonably should have known that…
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A Brief History of Arbitration — 900 Years in a Few Paragraphs

Delaware Coalition for Open Gov’t, Inc. v. Strine, 733 F.3d 510 (3d Cir. 2013) (note:  this is the case holding that the public has a right of access under the First Amendment to Delaware’s state-sponsored arbitration program): 2. Arbitrations  Arbitrations also have a long history. Wr ...
Delaware Coalition for Open Gov’t, Inc. v. Strine, 733 F.3d 510 (3d Cir. 2013) (note:  this is the case holding that the public has a right of access under the First Amendment to Delaware’s state-sponsored arbitration program): 2. Arbitrations  Arbitrations…
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Issues That Could Have Been, But Were Not, Raised on First Appeal Are Barred on Subsequent Appeal

Maheca Trans. Co. v. Phila. Indem. Co., 2013 U.S. App. LEXIS 23396 (8th Cir. Nov. 21, 2013): For over one hundred years, our court has repeatedly barred parties from litigating issues in a second appeal following remand that could have been presented in the first appeal. See Clark v. Brown, 119 F. 130, 132 (8th Cir. ...
Maheca Trans. Co. v. Phila. Indem. Co., 2013 U.S. App. LEXIS 23396 (8th Cir. Nov. 21, 2013): For over one hundred years, our court has repeatedly barred parties from litigating issues in a second appeal following remand that could have …
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Posner, J.: “The Legal Profession Must Get over Its Fear and Loathing Of Science” — Good Quotes

Jackson v. Pollion, 2013 U.S. App. LEXIS 21983 (7th Cir. Oct. 28, 2013): The plaintiff, an inmate of an Illinois prison, has sued, under 42 U.S.C. § 1983--the ubiquitous federal constitutional tort statute--a nurse practitioner and a correctional counselor both of whom work at the prison. He accuses them of having been deliberately ...
Jackson v. Pollion, 2013 U.S. App. LEXIS 21983 (7th Cir. Oct. 28, 2013): The plaintiff, an inmate of an Illinois prison, has sued, under 42 U.S.C. § 1983–the ubiquitous federal constitutional tort statute–a nurse practitioner and a correctional counselor both…
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Vexatious Litigants — Inherent Power Sanctions — Filing Restrictions on Future Appeals

Landrith v. Schmidt, 732 F.3d 1171 (10th Cir. 2013): Simply put, Landrith has strained this court's resources with his frivolous and abusive pro se filings, which have only increased as of late. His 2011 mandamus petition and the four appeals he filed in 2012 and 2013 presented arguments with fundamental legal flaws, and none wer ...
Landrith v. Schmidt, 732 F.3d 1171 (10th Cir. 2013): Simply put, Landrith has strained this court's resources with his frivolous and abusive pro se filings, which have only increased as of late. His 2011 mandamus petition and the four appeals…
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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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