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

While Failure to Object to Magistrate Judge’s Report within 14 Days Waives Review of That Decision If the Report Explicitly So States (with Citations), the Waiver Rule Is Non-Jurisdictional and May Be Excused

Zaretsky v. Maxi Aids, Inc., 2013 U.S. App. LEXIS 14312 (2d Cir. July 16, 2013): Appellants Feige Zaretsky and Aaron Berlin, pro se, appeal from a final judgment dismissing their amended complaint pursuant to Federal Rules of Civil Procedure 16(f), for failure to comply with a court order, and 41(b), for failure to prosecute. Appellants ...
Zaretsky v. Maxi Aids, Inc., 2013 U.S. App. LEXIS 14312 (2d Cir. July 16, 2013): Appellants Feige Zaretsky and Aaron Berlin, pro se, appeal from a final judgment dismissing their amended complaint pursuant to Federal Rules of Civil Procedure 16(f),…
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When Summary Judgment Allowed on Claims Requiring Proof of Intent — RICO Enterprise of Affiliated and Unaffiliated Entities and Employees Upheld — Prejudgment Interest Plus Punitive Damages Permitted, and at Higher State Rate — Good Quotes

In re ClassicStar Mare Lease Litig., 2013 U.S. App. LEXIS 14518 (6th Cir. July 18, 2013): Defendants argue that summary judgment was inappropriate because there are disputed issues of fact as to whether they intended to defraud Plaintiffs through the Mare Lease Program. Defendants assert that the district court improperly relied only on ...
In re ClassicStar Mare Lease Litig., 2013 U.S. App. LEXIS 14518 (6th Cir. July 18, 2013): Defendants argue that summary judgment was inappropriate because there are disputed issues of fact as to whether they intended to defraud Plaintiffs through the…
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Default Judgment for Discovery Violations — Factors for Review of Rule 37 Sanctions — Severe & Otherwise — Second Circuit

Guggenheim Capital, LLC v. Birnbaum, 2013 U.S. App. LEXIS 14195 (2d Cir. July 15, 2013): "If a party . . . fails to obey an order to provide or permit discovery," the district court may impose sanctions, including "rendering a default judgment against the disobedient party." Fed. R. Civ. P. 37(b)(2)(A)(vi). Certain Rule 37 remedies ...
Guggenheim Capital, LLC v. Birnbaum, 2013 U.S. App. LEXIS 14195 (2d Cir. July 15, 2013): “If a party . . . fails to obey an order to provide or permit discovery,” the district court may impose sanctions, including “rendering a…
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Circuit Split: Can Defendant Moot Class Action by Offering Full Individual Relief before Certification Motion Filed? — Impact of Supreme Court’s 2013 Genesis Decision — “Inherently Transitory” Rationale Inapt

Keim v. ADF Midatlantic, LLC, 2013 U.S. Dist. LEXIS 98373 (S.D. Fla. July 12, 2013): "To allow a case, not certified as a class action and with no motion for class certification even pending, to continue in federal court when the sole plaintiff no longer maintains a personal stake defies the limits on federal jurisdiction expressed ...
Keim v. ADF Midatlantic, LLC, 2013 U.S. Dist. LEXIS 98373 (S.D. Fla. July 12, 2013): “To allow a case, not certified as a class action and with no motion for class certification even pending, to continue in federal court when…
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RICO — Enterprise Consisting of Corporate President, His Assistant and His Off-the-Books Wholly-Owned Entity Satisfies Distinctiveness Requirement of § 1962(c) Where All 3 Are Also Defendants

Mega Concrete, Inc. v. Smith, 2013 U.S. Dist. LEXIS 98660 (E.D. Pa. July 15, 2013): This lawsuit involves allegations that two former employees of the plaintiff construction companies, defendants Michael Smith and Kimberly Lawson, conspired and collaborated with others to steal the plaintiffs' resources, manpower, business opportunities ...
Mega Concrete, Inc. v. Smith, 2013 U.S. Dist. LEXIS 98660 (E.D. Pa. July 15, 2013): This lawsuit involves allegations that two former employees of the plaintiff construction companies, defendants Michael Smith and Kimberly Lawson, conspired and collaborated with others to…
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Standards for Dismissal under Rules 37 and 41(b) — Rule 37 Factors Not Exhaustive — Each Need Not Be Satisfied If Order Is “Just” — Pro Se Must Be Warned before Sanction of Dismissal Imposed — 41(b) Dismissal May Be Sua Sponte

Manigaulte v. C.W. Post of Long Island Univ., 2013 U.S. App. LEXIS 14096 (2d Cir. July 12, 2013): While "dismissal with prejudice is a harsh remedy to be used only in extreme situations, and then only when a court finds willfulness, bad faith, or any fault by the non-compliant litigant," Agiwal, 555 F.3d at 302 (internal quotat ...
Manigaulte v. C.W. Post of Long Island Univ., 2013 U.S. App. LEXIS 14096 (2d Cir. July 12, 2013): While “dismissal with prejudice is a harsh remedy to be used only in extreme situations, and then only when a court finds…
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Governmental Entity (Municipal Corporation) Cannot Be Sued under RICO Because Treble Damage Remedy Is Primarily Punitive

Tengood v. City of Philadelphia, 2013 U.S. App. LEXIS 12151 (3d Cir. June 17, 2013): Appellant challenges the district court's entry of summary judgment in favor of the City on Counts 1 and 2 of the Complaint, alleging it was error to conclude that the City cannot be subject to RICO liability. This argument is foreclosed by our decision ...
Tengood v. City of Philadelphia, 2013 U.S. App. LEXIS 12151 (3d Cir. June 17, 2013): Appellant challenges the district court’s entry of summary judgment in favor of the City on Counts 1 and 2 of the Complaint, alleging it was…
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Duty Imposed by Contract Clause Requiring “Best Efforts” — Good Faith and Fair Dealing Claim Redundant of Breach of Contract Claim

Cruz v. FXDirectDealer, LLC, 2013 U.S. App. LEXIS 12448 (2d Cir. June 19, 2013): C. Breach of Contract Claim Cruz claims that FXDD breached the Agreement by failing to use its "best efforts" to execute customer trade orders. FXDD responds that Cruz's breach of contract claim fails because the Agreement warns that FXDD ma ...
Cruz v. FXDirectDealer, LLC, 2013 U.S. App. LEXIS 12448 (2d Cir. June 19, 2013): C. Breach of Contract Claim Cruz claims that FXDD breached the Agreement by failing to use its “best efforts” to execute customer trade orders. FXDD responds…
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While Intra-Circuit Splits Ordinarily May Be Resolved Only En Banc, a Three-Judge Panel May Overrule One Line of Cases Clearly Irreconcilable with Intervening Supreme Court Decision

United States ex rel. Air Control Techs., Inc. v. Pre Con Indus., Inc., 2013 U.S. App. LEXIS 13314 (9th Cir. June 28, 2013): Ordinarily, intra-circuit splits may only be resolved by an en banc panel. Atonio v. Wards Cove Packing Co., Inc., 810 F.2d 1477, 1478-79 (9th Cir. 1987) (en banc). But when intervening higher authori ...
United States ex rel. Air Control Techs., Inc. v. Pre Con Indus., Inc., 2013 U.S. App. LEXIS 13314 (9th Cir. June 28, 2013): Ordinarily, intra-circuit splits may only be resolved by an en banc panel. Atonio v. Wards Cove Packing…
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RICO — Enterprise of 2 Companies and Personnel Fails — Acts Were Taken by Members Conducting Their Own Affairs, Not Enterprise’s — Mere Violation of Predicate Acts Insufficient — Good Quotes

United Food And Commercial Workers Unions And Employers Midwest Health Benefits Fund v. Walgreen Co., 2013 U.S. App. LEXIS 13711 (7th Cir. July 8, 2013): The United Food and Commercial Workers Unions and Employers Midwest Health Benefits Fund (the Fund), an employee benefit plan that provides healthcare benefits to its participants, is ...
United Food And Commercial Workers Unions And Employers Midwest Health Benefits Fund v. Walgreen Co., 2013 U.S. App. LEXIS 13711 (7th Cir. July 8, 2013): The United Food and Commercial Workers Unions and Employers Midwest Health Benefits Fund (the Fund),…
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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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