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

Rule 11 Sanctions Apt for Failing to Dismiss Claim after Becoming Aware They Lack Merit

Baker v. Chevron USA Inc., 2013 U.S. App. LEXIS 16219 (6th Cir. Aug. 2, 2013): Rule 11 sanctions are appropriate when an attorney refuses to dismiss a claim after becoming aware that it lacks merit. See Merritt, 613 F.3d at 627 ("Rule 11 imposes a continual obligation on attorneys to refrain from pursing meritl ...
Baker v. Chevron USA Inc., 2013 U.S. App. LEXIS 16219 (6th Cir. Aug. 2, 2013): Rule 11 sanctions are appropriate when an attorney refuses to dismiss a claim after becoming aware that it lacks merit. See Merritt, 613 F.3d at…
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Arbitration — Fourth Circuit Vacates Award for “Manifest Disregard of the Law,” Recognizing Circuit Split as to Whether That Ground Is Viable after Hall Street — FAA Trumps State Arbitration Law in Any Dispute “Involving Commerce”

Kiran M. Dewan, CPA, PA v. Walia, 2013 U.S. App. LEXIS 21970 (4th Cir. Oct. 28, 2013): Kiran Dewan and his close corporation, Kiran M. Dewan, CPA, P.A. ("the Company") (collectively, "Appellants"), appeal from the district court's confirmation of an arbitral award in favor of the Company's former employe ...
Kiran M. Dewan, CPA, PA v. Walia, 2013 U.S. App. LEXIS 21970 (4th Cir. Oct. 28, 2013): Kiran Dewan and his close corporation, Kiran M. Dewan, CPA, P.A. ("the Company") (collectively, "Appellants"), appeal from the district court's confirmation of an…
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With Rare Exception, District Court Has No Duty to Consider a Potential Statute of Limitations Defense Sua Sponte — District Court Has Broad Discretion to Interpret Its Local Rules

 O'Connell v. Fernandez-Pol,  2013 U.S. App. LEXIS 19964 (9th Cir. Sept. 30, 2013): Defendant Dr. Jose Fernandez-Pol ("Dr. Pol") appeals the district court's order granting Plaintiffs' motion for judgment on the pleadings after the district court struck Dr. Pol's answer as a discovery sanction under Federal ...
O'Connell v. Fernandez-Pol,  2013 U.S. App. LEXIS 19964 (9th Cir. Sept. 30, 2013): Defendant Dr. Jose Fernandez-Pol ("Dr. Pol") appeals the district court's order granting Plaintiffs' motion for judgment on the pleadings after the district court struck Dr. Pol's answer…
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FCA Doesn’t Preempt Ethics Rules — Ex-GC, Co-Plaintiffs & Counsel Disqualified — GC Disclosed More Confidences Than Needed — OK for Court to Rely on In Camera Document to See If It Was Privileged — Ethical Duties to Corp Transfer to Acquiror

United States v. Quest Diagnostics Inc., 2013 U.S. App. LEXIS 21709 (2d Cir. Oct. 25, 2013): Plaintiff appeals from the July 12, 2011 judgment of the United  States District Court for the Southern District of New York (Robert P. Patterson, Judge) dismissing this qui tam action and disqualifying plaintiff, its individual members--i ...
United States v. Quest Diagnostics Inc., 2013 U.S. App. LEXIS 21709 (2d Cir. Oct. 25, 2013): Plaintiff appeals from the July 12, 2011 judgment of the United  States District Court for the Southern District of New York (Robert P. Patterson,…
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Arbitration Agreement Contained Only in Employee Handbook That Is Subject to Unilateral Change by Employer without Notice Is Illusory and Unenforceable

Scudiero v. Radio One of Tex. II, LLC, 2013 U.S. App. LEXIS 21677 (5th Cir. Oct. 24, 2013): ***Radio One contends that the district court erred in holding that the two arbitration provisions in the employee handbook were illusory and thus unenforceable based on a provision in the handbook that expressly provided that Radio One reserv ...
Scudiero v. Radio One of Tex. II, LLC, 2013 U.S. App. LEXIS 21677 (5th Cir. Oct. 24, 2013): ***Radio One contends that the district court erred in holding that the two arbitration provisions in the employee handbook were illusory and…
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Purposes of Rule 37 Sanctions — Factors — Importance of Bad Faith and Prejudice in Assessing Apt Sanction

First Mariner Bank v. Resolution Law Group, 2013 U.S. Dist. LEXIS 153299 (D. Md. Oct. 24, 2013): Courts have broad discretion to impose punitive measures on any party who fails to obey a discovery order. Fed R. Civ. P. 37(b)(2)(B); Mut. Fed. Sav. & Loan Ass'n v. Richards & Assocs., 872 F.2d 88, 92 (4th Cir. 1989);  8B Charles Al ...
First Mariner Bank v. Resolution Law Group, 2013 U.S. Dist. LEXIS 153299 (D. Md. Oct. 24, 2013): Courts have broad discretion to impose punitive measures on any party who fails to obey a discovery order. Fed R. Civ. P. 37(b)(2)(B);…
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When Notes Are Securities — Reves’ Family Resemblance Test — Issue of Law in Civil Cases — Notes with Durations Shorter Than Nine Months

Securities and Exchange Comm'n v. Thompson, 2013 U.S. App. LEXIS 20342 (10th Cir. Oct. 4, 2013): This appeal arises out of a civil-enforcement action brought by the Securities and Exchange Commission ("SEC") against Defendant-Appellant Ralph W. Thompson, Jr., in connection with an alleged Ponz ...
Securities and Exchange Comm'n v. Thompson, 2013 U.S. App. LEXIS 20342 (10th Cir. Oct. 4, 2013): This appeal arises out of a civil-enforcement action brought by the Securities and Exchange Commission ("SEC") against Defendant-Appellant Ralph W. Thompson, Jr., in connection…
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Circuit Splits Created with Trepidation — Good Quotes

Anderson v. Private Capital Grp., Inc., 2013 U.S. App. LEXIS 20613 (10th Cir. Oct. 10, 2013): We need not reach any general conclusions regarding whether the void ab initio exception has any room to operate in the Tenth Circuit. It is sufficient for us to say that Mr. Anderson has failed to offer us any cog ...
Anderson v. Private Capital Grp., Inc., 2013 U.S. App. LEXIS 20613 (10th Cir. Oct. 10, 2013): We need not reach any general conclusions regarding whether the void ab initio exception has any room to operate in the Tenth Circuit. It…
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Can a Party Consent to the Bankruptcy Court Entering a Final Order in a Core Matter Otherwise Barred by Stern v. Marshall? — Circuit Split

In re Morris (Silagy v. Morris), 2013 Bankr. LEXIS 4369 (Bankr. N.D. Ohio Oct. 18, 2013): The last jurisdictional issue is whether a party can consent, either expressly or impliedly, to the bankruptcy court entering a final order in a core matter that would normally be prohibited by Stern. There is currently a circuit split o ...
In re Morris (Silagy v. Morris), 2013 Bankr. LEXIS 4369 (Bankr. N.D. Ohio Oct. 18, 2013): The last jurisdictional issue is whether a party can consent, either expressly or impliedly, to the bankruptcy court entering a final order in a …
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Rule 26(a)(1) Damages Disclosure — “Substantial Justification” and Harmless Error — No Requirement That Expert Perform Complicated Initial Disclosures

U.S. Bank N.A. v. PHL Variable Life Ins. Co., 2013 U.S. Dist. LEXIS 143398 (S.D.N.Y. Oct. 3, 2013): "Substantial justification may be demonstrated where there is justification to a degree that could satisfy a reasonable person that parties could differ as to whether the party was required to comply with the disclosure re ...
U.S. Bank N.A. v. PHL Variable Life Ins. Co., 2013 U.S. Dist. LEXIS 143398 (S.D.N.Y. Oct. 3, 2013): "Substantial justification may be demonstrated where there is justification to a degree that could satisfy a reasonable person that parties could differ …
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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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