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

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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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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Recent Posts

RICO: Indirect Injury Unrecoverable — Indirect Purchaser Rule Imported from Antitrust

Rule 11 Sanctions: (1) Improper Purpose of Harassment Reasonably Determined Based on Past Tactics (25 Lawsuits, 14 Ethics Complaints, and 150 FOIA Requests) As Well As Present Behavior — (2) Hearings Are Not Only Not Required to Satisfy Due Process But, If The Record Is Otherwise Adequate, Are Affirmatively Discouraged

RICO and Probate Exception to Federal Jurisdiction: Federal Jurisdiction over RICO Claim Not Barred by Probate Exception Even If the Federal Judgment May Be Binding on the Probate Proceedings (Or Vice Versa) — Calculating Damages Based on Diminution of Value of Estate ≠ Administration of the Estate — Doesn’t Matter If RICO Misconduct Includes Defendants’ Actions with Respect to The Estate

RICO: No Causation Where Harm Flowed Several Steps After the Fraudulent Acts — RICO Causation Same As Antitrust Causation

Sanctions vs. Automatic Stay: Imposition of Sanctions (Here, Inherent Power Sanctions) Is Subject to the Police Power Exception to the Automatic Stay in Bankruptcy

The Word “Include” May Be A Word of Limitation As Opposed to a Word of Enlargement, Depending on the Context

RICO — Pleading Conspiracy — Plaintiffs Must Plausibly Allege That the Defendants Knowingly Joined the RICO Conspiracy — Sparse Allegations of Knowledge of Fraud Due to Participation in a Commercial Transaction Insufficient to State RICO Conspiracy Claim Where Allegations Not Inconsistent with Ordinary Commercial Behavior — While Knowledge May Be Pled “Generally” under Rule 9(b), It Cannot Be Alleged Conclusorily and Must Satisfy the Twiqbal Plausibility Standard

Depositions: Improper to Object to Form to Straightforward Questions (Not Compound, Vague, Leading or Speculative) — Lack of Foundation Objection Improper in 30(b)(6) Deposition — Improper to “Educate” Witness During Breaks of 30(b)(6) Deposition Through Witness Calls to Knowledgeable Corporate Colleagues — Magistrate Judge May Impose Financial Sanctions

Spoliation/Sanctions: “A Party Does Not Spoliate Evidence When, Without Notice Of The Evidence’s Potential Relevance, It Destroys The Evidence According To Its Policy Or In The Normal Course Of Its Business” (Good Quote)

RICO: Fraud on Government Entities Causing Plaintiffs to Pay More for Inmate Calls Actionable on Bridge v. Phoenix Bond Analysis — Fact That Governments Had Separate Injuries As Part of the Scheme (from Reduced Commissions) Irrelevant — Plaintiffs’ Injuries Not Derivative of Governments’ — The Fraud on the Governments Was Not Too Distinct From Plaintiffs’ Injuries But Rather Necessary to Injure Plaintiffs — No Risk of Duplicative Recoveries and No Plaintiff Better Situated to Sue for Plaintiffs’ Injuries

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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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