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

Failure to Raise Spoliation Issue at Summary Judgment Stage — Not until Post-Trial Motions — Is Untimely and Bars Appellate Review

Smith v. BP Am., Inc., 2013 U.S. App. LEXIS 13656 (11th Cir. July 5, 2013): D. Motion to Alter or Amend Judgment "The only grounds for granting [a Rule 59] motion are newly-discovered evidence or manifest errors of law or fact." In re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999). "[A] Rule 59(e) motion [cannot be u ...
Smith v. BP Am., Inc., 2013 U.S. App. LEXIS 13656 (11th Cir. July 5, 2013): D. Motion to Alter or Amend Judgment “The only grounds for granting [a Rule 59] motion are newly-discovered evidence or manifest errors of law or…
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Arbitration — Current State of the Circuit Split on Manifest Disregard — What “Manifest Disregard” Requires, If It Does Survive: Knowing, Intentional, Explicit Refusal to Apply the Law

Bartlett Grain Co. v. Sunburst Farms P’ship, 2013 U.S. Dist. LEXIS 94140 (D. Kan. July 5, 2013): In the wake of Hall Street, the circuits have split as to whether manifest disregard of the law is still a viable ground on which to overturn an arbitration award. According to the Second, Sixth (in an unpublished decision) and Ninth C ...
Bartlett Grain Co. v. Sunburst Farms P’ship, 2013 U.S. Dist. LEXIS 94140 (D. Kan. July 5, 2013): In the wake of Hall Street, the circuits have split as to whether manifest disregard of the law is still a viable ground…
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7th Circuit OKs Juror Questions — How Long a Trial Can a Juror Comprehend? — Party Need Not Disclose Opposing Expert per Rule 26(a)(2)(A) — Invited Error — State of Mind Attack & Hearsay — Once Expert Disclosed, Can’t Become Consulting Expert

SEC v. Koenig, 557 F.3d 736 (7th Cir. 2009): Waste Management, Inc., grew at an average annual rate of 26% from 1979 through 1991. When growth fell off, James Koenig, its Chief Financial Officer, decided to improve appearances. He devised several accounting strategies that a jury found to be fraudulent. The district judge imposed a civi ...
SEC v. Koenig, 557 F.3d 736 (7th Cir. 2009): Waste Management, Inc., grew at an average annual rate of 26% from 1979 through 1991. When growth fell off, James Koenig, its Chief Financial Officer, decided to improve appearances. He devised…
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Waiver by Providing Privileged Material to Testifying Expert — Standards: Clear and Convincing Evidence, Clearly Erroneous — Appellate Deference to Credibility Findings & Its Limits

United States v. Bolander, 2013 U.S. App. LEXIS 13659 (4th Cir. July 5, 2013): To obtain a commitment order against Bolander, the government was required to establish three elements by clear and convincing evidence. First, the government was required to establish that Bolander had "engaged or attempted to engage in . . . child molestat ...
United States v. Bolander, 2013 U.S. App. LEXIS 13659 (4th Cir. July 5, 2013): To obtain a commitment order against Bolander, the government was required to establish three elements by clear and convincing evidence. First, the government was required to…
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Judicial Estoppel — Principles — Good Quotes

Grochocinski v. Mayer Brown Rowe & Maw, LLP, 2013 U.S. App. LEXIS 12728 (7th Cir. June 21, 2013): Judicial estoppel is a flexible equitable doctrine designed to prevent "the perversion of the judicial process." In re Cassidy, 892 F.2d 637, 641 (7th Cir. 1990). The doctrine protects the courts from being "'manipulated by ch ...
Grochocinski v. Mayer Brown Rowe & Maw, LLP, 2013 U.S. App. LEXIS 12728 (7th Cir. June 21, 2013): Judicial estoppel is a flexible equitable doctrine designed to prevent “the perversion of the judicial process.” In re Cassidy, 892 F.2d 637,…
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Expert Precluded from Testifying Due to Deficiencies Evident in Report — Not Curable by “Supplementation”

Campbell v United States, 470 Fed. Appx. 153 (4th Cir. 2012): Annette Campbell filed a wrongful death action against the United States of America pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671-2680 (2006), alleging that medical staff at the Veterans Affairs Medical Center ("VA Medical Center") acted negligen ...
Campbell v United States, 470 Fed. Appx. 153 (4th Cir. 2012): Annette Campbell filed a wrongful death action against the United States of America pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-2680 (2006), alleging that…
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Default Judgments Are Discretionary and Not Favored — Factors for the Court’s Consideration

Americredit Fin. Servs. v. Glennon (In re Jeffers), 2012 Bankr. LEXIS 6170 (E.D. Cal. Oct. 10, 2012): Federal Rule of Civil Procedure 55 and Federal Rule of Bankruptcy Procedure 7055 govern default judgments. In re McGee, 359 B.R. 764, 770 (B.A.P. 9th Cir. 2006). Obtaining a default judgment of nondishcargeability of a claim is a two-ste ...
Americredit Fin. Servs. v. Glennon (In re Jeffers), 2012 Bankr. LEXIS 6170 (E.D. Cal. Oct. 10, 2012): Federal Rule of Civil Procedure 55 and Federal Rule of Bankruptcy Procedure 7055 govern default judgments. In re McGee, 359 B.R. 764, 770…
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RICO Forfeiture — Where Lawyer/Racketeer Deposits Illicit Proceeds of Ponzi Scheme in Firm’s Bank Account, Commingling It with Legitimate Revenues, Entire Account at Time He Is Charged Is Not Forfeitable

In re Rothstein, , 2013 U.S. App. LEXIS 11793 (11th Cir. June 12, 2013): A number of criminal statutes within the Federal Code mandate that a defendant, when convicted, forfeit to the United States as part of his sentence the lucre he acquired as a result of his criminal activity. In this case, the defendant, a lawyer, deposited the lucr ...
In re Rothstein, , 2013 U.S. App. LEXIS 11793 (11th Cir. June 12, 2013): A number of criminal statutes within the Federal Code mandate that a defendant, when convicted, forfeit to the United States as part of his sentence the…
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Lost Profits Evidence Precluded for Failure to Disclose Calculation Under 26(A)(1)(C) — Automatic Nature of Sanctions under Rule 37(c)(1) —Factors — Good Quotes — “Abuse of Discretion” Defined — Design Strategy

Design Strategy, Inc. v. Davis, 469 F.3d 284 (2d Cir. 2006): Plaintiff-counter-defendant-appellant Design Strategies, Inc. ("Design") appeals from a judgment entered in the United States District Court for the Southern District of New York (Marrero, J.). The action arises out of the alleged diversion of a corporate opportun ...
Design Strategy, Inc. v. Davis, 469 F.3d 284 (2d Cir. 2006): Plaintiff-counter-defendant-appellant Design Strategies, Inc. ("Design") appeals from a judgment entered in the United States District Court for the Southern District of New York (Marrero, J.). The action arises out…
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Sanctions — Entry of a Default Judgment under Rule 37 for Discovery Violations — Factors — $36 Million Jury Verdict on Damages Upheld

Stooksbury v. Ross, 2013 U.S. App. LEXIS 12132 (6th Cir. June 13, 2013): Defendants Michael L. Ross, the estate of his late brother, and their associates and business entities, (collectively "Ross Defendants"), appeal from the district court's denial of their motions for a directed verdict and new trial after a jury awarded Plaintiff R ...
Stooksbury v. Ross, 2013 U.S. App. LEXIS 12132 (6th Cir. June 13, 2013): Defendants Michael L. Ross, the estate of his late brother, and their associates and business entities, (collectively “Ross Defendants”), appeal from the district court’s denial of their…
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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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