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

Attorney-Client Privilege — Assertion of Noerr-Pennington Defense, Which Protects Pre-Litigation Activity, Does Not Waive Privilege Despite Opponent’s Invocation of Sham Exception

Rock River Commc’ns, Inc. v. Universal Music Group, Inc., 2013 U.S. App. LEXIS 19257 (9th Cir. Sept. 18, 2013): In October 2007 ... UMG sent a cease-and-desist letter to Rock River claiming that UMG owned exclusive licensing rights to all the Recordings remixed on the album "Roots, Rock, Remixed" and that Rock River therefore cou ...
Rock River Commc’ns, Inc. v. Universal Music Group, Inc., 2013 U.S. App. LEXIS 19257 (9th Cir. Sept. 18, 2013): In October 2007 … UMG sent a cease-and-desist letter to Rock River claiming that UMG owned exclusive licensing rights to all…
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Third Circuit Rejects Non-Precedential Opinion Triggering Rule 11 Safe Harbor Period via Letter — Post-Motion Conduct Not Sanctionable Due to Lack of Notice

In re Miller (Ettinger & Assocs. LLC v. Miller), 2013 U.S. App. LEXIS 19090 (3d Cir. Sept. 16, 2013): 1. Initial Motion for Sanctions On January 31, 2011, the Millers filed and served on Ettinger and Tsarouhis a Rule 9011 Motion for Sanctions ("Initial Motion"). It asserted that Ettinger's compla ...
In re Miller (Ettinger & Assocs. LLC v. Miller), 2013 U.S. App. LEXIS 19090 (3d Cir. Sept. 16, 2013): 1. Initial Motion for Sanctions On January 31, 2011, the Millers filed and served on Ettinger and Tsarouhis a Rule 9011…
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§ 1927 Sanctions — Meaning of “Unreasonably and Vexatiously” — “A case may be weak, but as long as it is not without circumstantial foundation, it is not frivolous” (Good Quote)

§ 1927 Sanctions — Meaning of “Unreasonably and Vexatiously” —  "A case may be weak, but as long as it is not without circumstantial foundation, it is not frivolous" (Good Quote) Barnhart v. Lamar Advertising Co., 2013 U.S. App. LEXIS 14174 911th Cir. July 15, 2013): Section 1927 provides, in relevant part, ...
§ 1927 Sanctions — Meaning of “Unreasonably and Vexatiously” —  "A case may be weak, but as long as it is not without circumstantial foundation, it is not frivolous" (Good Quote) Barnhart v. Lamar Advertising Co., 2013 U.S. App. LEXIS…
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Forum Selection Clauses — Is a Rule 12(b)(3) Dismissal Available to Parties Seeking to Enforce Forum Selection Clauses Even When a § 1404(a) Transfer Is Possible? Circuit Split — Cert Granted to Resolve

LeBlanc v. C.R. England, Inc., 2013 U.S. Dist. LEXIS 121031 (N.D. Tex. Aug. 13, 2013): A. Forum Selection Clauses 1. From Historical Disfavor to Presumptive Validity after Bremen   Forum selection clauses were historically viewed with disfavor by American courts as attempts to ...
LeBlanc v. C.R. England, Inc., 2013 U.S. Dist. LEXIS 121031 (N.D. Tex. Aug. 13, 2013): A. Forum Selection Clauses 1. From Historical Disfavor to Presumptive Validity after Bremen   Forum selection clauses were historically viewed with disfavor by American courts as…
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Dismissal for Failure to Prosecute — Factors — 5½ Months Too Short — Standard Order’s Boilerplate Warning of Sanctions Does Not Provide Sufficient Warning of Dismissal

Carpenter v. City of Flint, 2013 U.S. App. LEXIS 15102 (6th Cir. July 25, 2013): Under this court's precedent, we consider four factors when determining whether dismissal for failure to prosecute was within the district court's discretion: (1) whether the party's failure is due to willfulness, ...
Carpenter v. City of Flint, 2013 U.S. App. LEXIS 15102 (6th Cir. July 25, 2013): Under this court's precedent, we consider four factors when determining whether dismissal for failure to prosecute was within the district court's discretion: (1) whether the …
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RICO Damages: Out-of-Pocket Loss vs. Benefit of Bargain — Uniform Misrepresentation & Contract Breach as Bases for Class Certification — Payment as Proof of Reliance — Daubert & Multiple States’ Laws on Class Cert

In re US Foodservice Inc. Pricing Litig., 2013 U.S. App. LEXIS 18141 (2d Cir. Aug. 30, 2013): This case concerns allegations of fraudulent overbilling by U.S. Foodservice, Inc. ("USF"), the country's second largest food distributor whose customers have included the United States government, as well as hospitals, schools ...
In re US Foodservice Inc. Pricing Litig., 2013 U.S. App. LEXIS 18141 (2d Cir. Aug. 30, 2013): This case concerns allegations of fraudulent overbilling by U.S. Foodservice, Inc. ("USF"), the country's second largest food distributor whose customers have included the…
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New Article: Major Changes in Federal Subpoena Practice

Download associated file: Major Changes in Federal Subpoena Practice.pdf  A new article analyzing major amendments to Federal Rule of Civil Procedure 45 governing civil subpoena practice go into effect December 1, 2013, barring intervening Congressional action, has be ...
Download associated file: Major Changes in Federal Subpoena Practice.pdf  A new article analyzing major amendments to Federal Rule of Civil Procedure 45 governing civil subpoena practice go into effect December 1, 2013, barring intervening Congressional action, has been posted…
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Odyssey Marine Exploration

Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 2013 U.S. Dist. LEXIS 137633 (M.D. Fla. Sept. 25, 2013):  This action between Odyssey Marine Exploration and the Kingdom of Spain adjudicates the right to possession and ownership of more than $600,000,000.00 in silver specie.  This action presented from the outset not merely the dicey ...
Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 2013 U.S. Dist. LEXIS 137633 (M.D. Fla. Sept. 25, 2013):  This action between Odyssey Marine Exploration and the Kingdom of Spain adjudicates the right to possession and ownership of more than $600,000,000.00…
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Discovery Sanctions — Default Judgment — Standards — Fugitive Disentitlement Doctrine vs. Rule 37

SEC v. Razmilovic, 2013 U.S. App. LEXIS 14765 (2d Cir. July 22, 2013): A. The Entry of Default Rule 37 of the Federal Rules of Civil Procedure provides in part that if a party "fails to obey an order to provide . . . discovery, . . . the court where the action is pending may issue further just orders,&qu ...
SEC v. Razmilovic, 2013 U.S. App. LEXIS 14765 (2d Cir. July 22, 2013): A. The Entry of Default Rule 37 of the Federal Rules of Civil Procedure provides in part that if a party "fails to obey an order to…
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Even After 2011 Federal Courts Jurisdiction & Venue Clarification Act, Earlier-Served Defendants Must Consent to Removal within 30-Day Period within Which Later-Served Defendant Must File Notice of Removal

Chakra 5, Inc. v. City of Miami Beach, 2013 U.S. Dist. LEXIS 128692 (S.D. Fla. July 30, 2013): Defendants seeking removal to federal court under 28 U.S.C. section 1441 must do so according to the procedures in 28 U.S.C. section 1446. Prior to the Federal Courts Jurisdiction and Venue Clarification Act of 2011, Pub. L. No. 112-63, 125 Stat. 758 (codified i ...
Chakra 5, Inc. v. City of Miami Beach, 2013 U.S. Dist. LEXIS 128692 (S.D. Fla. July 30, 2013): Defendants seeking removal to federal court under 28 U.S.C. section 1441 must do so according to the procedures in 28 U.S.C. section…
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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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