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

Fraudulent Joinder Requires More Than Mere Failure to State a Claim — Clear Legal Bar Needed — Dismissal Should Be Without Prejudice — Requirements for Case-Ending Sanctions (Third Circuit)

Hogan v. Raymond Corp., 2013 U.S. App. LEXIS 17282 (3d Cir. Aug. 20, 2013): We begin with this issue because it implicates the District Court's jurisdiction. See Boyer v. Snap-On Tools Corp., 913 F.2d 108, 110 (3d Cir. 1990). The fraudulent joinder doctrine permits courts to ignore the citizenship of a non-diverse defendant for diversit ...
Hogan v. Raymond Corp., 2013 U.S. App. LEXIS 17282 (3d Cir. Aug. 20, 2013): We begin with this issue because it implicates the District Court’s jurisdiction. See Boyer v. Snap-On Tools Corp., 913 F.2d 108, 110 (3d Cir. 1990). The…
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Erie Doctrine — In Predicting How a State Supreme Court Would Interpret a State Statute, Federal Court Is Bound by State Rules of Statutory Construction and Considers State Supreme Court’s “Considered Dicta”

JPMorgan Chase Bank, N.A. v. Peeks, 719 F.3d 1010 8th Cir. 2013): In these consolidated cases, we consider whether a national banking association chartered by the Office of the Comptroller of the Currency but not registered to do business with the Arkansas Secretary of State or the Arkansas Bank Department may use the non-judicial forec ...
JPMorgan Chase Bank, N.A. v. Peeks, 719 F.3d 1010 8th Cir. 2013): In these consolidated cases, we consider whether a national banking association chartered by the Office of the Comptroller of the Currency but not registered to do business with…
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RICO Claim Based on Underpayment of Wages Cannot Be Predicated on Pay Stubs That Reveal, Not Promote, the Fraud — Error to Prevent Motion to Amend by Immediate Entry of Judgment on Dismissal of Complaint

Nakahata v. N.Y. -Presbyterian Healthcare Sys., Inc., Nos. 11-0734, 11-0710, 11-0713, 11-0728 (2d Cir. July 11, 2013): ***Plaintiffs -- current and former healthcare employees -- allege that the Defendants -- healthcare systems, hospitals, corporate heads, and affiliated entities -- violated the Fair Labor Standards Act ("FLSA"), New Yo ...
Nakahata v. N.Y. -Presbyterian Healthcare Sys., Inc., Nos. 11-0734, 11-0710, 11-0713, 11-0728 (2d Cir. July 11, 2013): ***Plaintiffs — current and former healthcare employees — allege that the Defendants — healthcare systems, hospitals, corporate heads, and affiliated entities — violated…
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Sanctions: “There Is a Significant Difference between Making a Weak Argument with Little Chance of Success and Making a Frivolous Argument with No Chance of Success”—Good Quote—Argument Not Sanctioned Below Sanctioned on Appeal

Cooney v. Casady, 2013 U.S. App. LEXIS 17255 (7th Cir. Aug. 19, 2013): This case arises out of Deborah O. Cooney's administrative appeal of the Illinois Department of Children and Family Services' (DCFS) indicated finding against her of mental injury and substantial risk of harm to her children. Cooney claims that Rhonda Casady and Andr ...
Cooney v. Casady, 2013 U.S. App. LEXIS 17255 (7th Cir. Aug. 19, 2013): This case arises out of Deborah O. Cooney’s administrative appeal of the Illinois Department of Children and Family Services’ (DCFS) indicated finding against her of mental injury…
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Collateral Order Doctrine — Elements — Pendent Appellate Jurisdiction — “Inextricably Intertwined” Requirement — Implied Waiver and Arbitral Award Exceptions of the FSIA

Blue Ridge Inv., LLC v. Republic of Argentina, 2013 U.S. App. LEXIS 17160 (2d Cir. Aug. 19, 2013): This appeal arises from an order of the United States District Court for the Southern District of New York (Paul G. Gardephe, Judge) that denied a motion to dismiss filed by respondent-appellant the Republic of Argentina ("Argentina"). In ...
Blue Ridge Inv., LLC v. Republic of Argentina, 2013 U.S. App. LEXIS 17160 (2d Cir. Aug. 19, 2013): This appeal arises from an order of the United States District Court for the Southern District of New York (Paul G. Gardephe,…
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Securities — Section 11 — The Affirmative Defense of “Negative Causation” and Overcoming It

Hildes v. Arthur Andersen LLP, 2013 U.S. App. LEXIS 17177 (9th Cir. Aug. 19, 2013): David Hildes appeals from a district court order denying leave to amend his complaint. Hildes sought to add a claim under Section 11 of the Securities Act of 1933, 15 U.S.C. § 77k, against former outside directors of Peregrine Systems, Inc. ("Peregrine" ...
Hildes v. Arthur Andersen LLP, 2013 U.S. App. LEXIS 17177 (9th Cir. Aug. 19, 2013): David Hildes appeals from a district court order denying leave to amend his complaint. Hildes sought to add a claim under Section 11 of the…
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Class Actions — The 3½ Grounds Warranting Discretionary Review of a Certification Decision under Rule 23(f)

In re Rail Freight Fuel Surcharge Antitrust Litig., 2013 U.S. App. LEXIS 16500 (D.C. Cir. Aug. 9, 2013): Before addressing the merits, we pause to consider a thorny threshold question. Should we be exercising our appellate jurisdiction over this case in the first place? Class certification is, after all, not a final decision of the sort ...
In re Rail Freight Fuel Surcharge Antitrust Litig., 2013 U.S. App. LEXIS 16500 (D.C. Cir. Aug. 9, 2013): Before addressing the merits, we pause to consider a thorny threshold question. Should we be exercising our appellate jurisdiction over this case…
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Rule 41(a)(1)(A)(ii) Stipulated Dismissal without Prejudice Is a Final Proceeding Subject to Vacatur under Rule 60(b)

Yesh Music v. Lakewood Church, 2013 U.S. App. LEXIS 16884 (5th Cir. Aug. 14, 2013): Plaintiff-Appellee Yesh Music is a general partnership comprised of Appellees Richard Cupolo and John Emanuele, two musicians who write, record, and perform ambient music. Defendant-Appellant Lakewood Church ("Lakewood"), pastored by Joel and Victoria ...
Yesh Music v. Lakewood Church, 2013 U.S. App. LEXIS 16884 (5th Cir. Aug. 14, 2013): Plaintiff-Appellee Yesh Music is a general partnership comprised of Appellees Richard Cupolo and John Emanuele, two musicians who write, record, and perform ambient music. Defendant-Appellant…
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Rule 11 Sanctions — “Court Is Expected to Avoid the Wisdom of Hindsight” — Reasonable Reliance on Others — Burden of Proof (Good Quotes)

Anderson v. Bd. of School Directors of Millcreek Township, 2013 U.S. Dist. LEXIS 116082 (W.D. Pa. Aug. 16, 2013): In determining whether a document was submitted in violation of Rule 11, the adjudicating court "is expected to avoid the wisdom of hindsight and should test the signer's conduct by [asking] what was reasonable to believ ...
Anderson v. Bd. of School Directors of Millcreek Township, 2013 U.S. Dist. LEXIS 116082 (W.D. Pa. Aug. 16, 2013): In determining whether a document was submitted in violation of Rule 11, the adjudicating court “is expected to avoid the wisdom…
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Arbitration — Incorporation of UNCITRAL or AAA Rules in an Arbitration Clause Constitutes Clear and Unmistakable Evidence that Sophisticated Parties Intended to Delegate Arbitrability to Arbitrator

Oracle Am., Inc. v. Myriad Grp A.G., 2013 U.S. App. LEXIS 15284 (9th Cir. July 26, 2013): Myriad Group A.G. appeals the district court's partial denial of its motion to compel arbitration. Myriad maintains that incorporation of the United Nations Commission on International Trade Law (UNCITRAL) arbitration rules into an arbitration prov ...
Oracle Am., Inc. v. Myriad Grp A.G., 2013 U.S. App. LEXIS 15284 (9th Cir. July 26, 2013): Myriad Group A.G. appeals the district court’s partial denial of its motion to compel arbitration. Myriad maintains that incorporation of the United Nations…
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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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