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

Class Actions: Post-Comcast, Court May Certify Liability-Only Class Even If Individualized Issues Predominate on Damages, Provided Damages Track Liability — Meaning of GVR Order from Supreme Court

Jacob v. Duane Reade, Inc., 2013 U.S. Dist. LEXIS 111989 (S.D.N.Y. Aug. 8, 2013): Plaintiffs, individually and on behalf of all others similarly situated, bring claims against Duane Reade, Inc. and Duane Reade Holdings (collectively, "DR"), asserting that DR failed to compensate its assistant store managers ("ASMs") for hours worked in ...
Jacob v. Duane Reade, Inc., 2013 U.S. Dist. LEXIS 111989 (S.D.N.Y. Aug. 8, 2013): Plaintiffs, individually and on behalf of all others similarly situated, bring claims against Duane Reade, Inc. and Duane Reade Holdings (collectively, “DR”), asserting that DR failed…
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Rule 11 Sanctions Reversed Where Pleading Corrected Prior to Rule 11 Motion Having Been Filed, Rendering Correction During Safe Harbor Period Impossible

Islamic Shura Council of S. Cal. v. FBI, 2013 U.S. App. LEXIS 15652 (9th Cir. July 31, 2013): The Federal Bureau of Investigation ("FBI") appeals the district court's order granting the Islamic Shura Council of Southern California's ("Shura Council") motion for sanctions under Federal Rule of Civil Procedure 11(c). See Islamic ...
Islamic Shura Council of S. Cal. v. FBI, 2013 U.S. App. LEXIS 15652 (9th Cir. July 31, 2013): The Federal Bureau of Investigation (“FBI”) appeals the district court’s order granting the Islamic Shura Council of Southern California’s (“Shura Council”) motion…
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Splitting Cause of Action — The Entire Controversy Doctrine — “Enough Is Enough” — Good Quote — § 1927 Sanctions for Venue Transfer Motion by Plaintiff Who Had Just Won Appeal That Venue Was Proper

Great W. Mining & Mineral Co. v ADR Options, Inc., 2013 U.S. App. LEXIS 16439 (3d Cir. Aug. 8, 2013): The "tortured procedural history" of this case is well-known. (J.A. 6.) In 2002, Plaintiff and Brownstein and Vitale ("B&V") agreed to arbitrate a legal malpractice claim that Plaintiff had asserted against B&V (the "Arbitration"). Fox ...
Great W. Mining & Mineral Co. v ADR Options, Inc., 2013 U.S. App. LEXIS 16439 (3d Cir. Aug. 8, 2013): The “tortured procedural history” of this case is well-known. (J.A. 6.) In 2002, Plaintiff and Brownstein and Vitale (“B&V”) agreed…
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Rule 19(b) — Indispensability of Necessary Party — Circuit Split over Standard of Appellate Review: Abuse of Discretion vs. De Novo

Marvel Characters, Inc. v. Kirby, 2013 U.S. App. LEXIS 16396 (2d Cir. Aug. 8, 2013): A. Federal Rule of Civil Procedure 19 Rule 19 recognizes exceptional circumstances in which the plaintiff's choice of parties or forum must give way because of an absent party's interest in the outcome of the action or involvement in t ...
Marvel Characters, Inc. v. Kirby, 2013 U.S. App. LEXIS 16396 (2d Cir. Aug. 8, 2013): A. Federal Rule of Civil Procedure 19 Rule 19 recognizes exceptional circumstances in which the plaintiff’s choice of parties or forum must give way because…
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Injunctions and Circuit Splits — Federal Court Should Not Issue Nationwide Injunction Where One Would Not Issue under the Law of Another Circuit

Fox TV Stations, Inc. v. BarryDriller Content Sys., PLC, 915 F. Supp. 2d 1138 (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. Principles of comity ...
Fox TV Stations, Inc. v. BarryDriller Content Sys., PLC, 915 F. Supp. 2d 1138 (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…
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Discovery Sanctions — Rule 37 — Meaning of “Substantially Justified” — Requirements for Civil Contempt and Adverse Factual Determinations — Court May Not Sanction Foreign Instrumentality for Violations Committed by Its Sovereign

Thai Lao Lignite (Thailand) Co., Ltd. v. Gov’t of Lao People’s Democratic Republic, 2013 U.S. Dist. LEXIS 110353 (S.D.N.Y. Aug. 2, 2013): On August 5, 2011, this Court entered a judgment in favor of Thai-Lao Lignite (Thailand) Co., Ltd. and Hongsa Lignite (Lao PDR) Co., Ltd. (collectively, "Petitioners"), enforcing a $56 million arb ...
Thai Lao Lignite (Thailand) Co., Ltd. v. Gov’t of Lao People’s Democratic Republic, 2013 U.S. Dist. LEXIS 110353 (S.D.N.Y. Aug. 2, 2013): On August 5, 2011, this Court entered a judgment in favor of Thai-Lao Lignite (Thailand) Co., Ltd. and…
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Arbitration Panel’s Award of Interest on One Part of Award Does Not Foreclose District Court from Awarding Interest on Other Parts as to Which Award Is Silent

Lagstein v. Certain Underwriters at Lloyd’s, 2013 U.S. App. LEXIS 16114 (9th Cir. Aug. 5, 2013): After undergoing major heart surgery in 2001, Dr. Zev Lagstein, a nuclear cardiologist, made a claim on a disability insurance policy he had purchased from Certain Underwriters at Lloyd's of London. Lloyd's pussyfooted for years only to ev ...
Lagstein v. Certain Underwriters at Lloyd’s, 2013 U.S. App. LEXIS 16114 (9th Cir. Aug. 5, 2013): After undergoing major heart surgery in 2001, Dr. Zev Lagstein, a nuclear cardiologist, made a claim on a disability insurance policy he had purchased…
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Unavailability of Designated Arbitral Forum Does Not Preclude Judicial Appointment of Substitute Forum — Apparent Caselaw Split as to Whether Designation of Forum Is “Integral” to Agreement to Arbitrate May Be Short-Lived

Green v. U.S. Cash Advance Ill., LLC, 2013 U.S. App. LEXIS 15565 (7th Cir. July 30, 2013): Joyce Green contends that U.S. Cash Advance, from which she borrowed money, misstated the loan's annual percentage rate and so violated the Truth in Lending Act, 15 U.S.C. §1606. The lender asked the district judge to stay the litigation and dire ...
Green v. U.S. Cash Advance Ill., LLC, 2013 U.S. App. LEXIS 15565 (7th Cir. July 30, 2013): Joyce Green contends that U.S. Cash Advance, from which she borrowed money, misstated the loan’s annual percentage rate and so violated the Truth…
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Rule 11 and § 1927 Sanctions Reversed Because Appellate Court Finds Position Deemed “Frivolous” by District Court to be “Substantial” and Potentially Meritorious

Leveski v. ITT Educ. Servs., Inc., 2013 U.S. App. LEXIS 13722 (7th Cir. July 8, 2013): Given our finding that Leveski's allegations are sufficiently distinguishable from Graves--not to mention our finding that she has direct and independent knowledge of her allegations--our sanctions analysis becomes quite easy. The district judge s ...
Leveski v. ITT Educ. Servs., Inc., 2013 U.S. App. LEXIS 13722 (7th Cir. July 8, 2013): Given our finding that Leveski’s allegations are sufficiently distinguishable from Graves–not to mention our finding that she has direct and independent knowledge of her…
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Arbitration — Order Compelling Arbitration and Administratively Closing, But Not Dismissing, Action Is Appealable As a “Final Decision” within FAA § 16(a)(3)

Montero v. Carnival Corp., 2013 U.S. App. LEXIS 14141 (11th Cir. July 12, 2013): As an initial matter, Carnival contends that we lack jurisdiction because the district court's order compelling arbitration was a non-appealable interlocutory order, instead of an appealable final decision, because it did not dismiss Montero's claims. A ...
Montero v. Carnival Corp., 2013 U.S. App. LEXIS 14141 (11th Cir. July 12, 2013): As an initial matter, Carnival contends that we lack jurisdiction because the district court’s order compelling arbitration was a non-appealable interlocutory order, instead of an appealable…
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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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