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

RICO Claim against IRS Employees Barred by 26 U.S.C. § 7433, Which Provides Exclusive Damages Remedy for Misconduct in Connection with Tax Collecting Activities

Kenner v. Kelly, 2013 U.S. App. LEXIS 12629 (9th Cir. June 18, 2013): Brian and Kathleen Kenner appeal pro se from the district court's judgment dismissing their action alleging that defendants violated the Racketeer Influenced and Corrupt Organizations Act ("RICO") in connection with the collection of their federal income tax liabiliti ...
Kenner v. Kelly, 2013 U.S. App. LEXIS 12629 (9th Cir. June 18, 2013): Brian and Kathleen Kenner appeal pro se from the district court’s judgment dismissing their action alleging that defendants violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”)…
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Arbitration — Supreme Court Rejects “Effective Vindication” Exception That Would Allow Parties to Litigate If Cost of Individually Arbitrating Federal Statutory Claim Exceeds Potential Recovery

American Express Co. v. Italian Colors Restaurant, 2013 U.S. LEXIS 4700 (U.S. June 20, 2013): We consider whether a contractual waiver of class arbitration is enforceable under the Federal Arbitration Act when the plaintiff's cost of individually arbitrating a federal statutory claim exceeds the potential recovery.*** I ...
American Express Co. v. Italian Colors Restaurant, 2013 U.S. LEXIS 4700 (U.S. June 20, 2013): We consider whether a contractual waiver of class arbitration is enforceable under the Federal Arbitration Act when the plaintiff’s cost of individually arbitrating a federal…
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In Pari Delicto under New York Law — Adverse Interest Exception and Sole Actor Doctrine — Supreme Court Reversal Drains Alternate Holdings of Precedential Effect Where Effect Is Lack of Subject Matter Jurisdiction

In re Bernard l. Madoff Inv. Secs. LLC, 2013 U.S. App. LEXIS 12551 (2d Cir. June 20, 2013): Irving Picard ("Picard" or the "Trustee") sues in his capacity as Trustee under the Securities Investor Protection Act ("SIPA") on behalf of victims in the multi-billion-dollar Ponzi scheme worked by Bernard Madoff. The four actions presently bef ...
In re Bernard l. Madoff Inv. Secs. LLC, 2013 U.S. App. LEXIS 12551 (2d Cir. June 20, 2013): Irving Picard (“Picard” or the “Trustee”) sues in his capacity as Trustee under the Securities Investor Protection Act (“SIPA”) on behalf of…
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Attorney-Client Privilege — Retainer Agreements Are Not Privileged unless They Reveal a Confidential Communication of Legal Advice, Nor Are They Protected as Work Product

In re MI Windows & Doors, Inc., Prod. Liab. Litig., MDL No. 2333, Case No. 2:12-mn-00001 (D.S.C. June 12, 2013) (Capra, Special Master): This is a class action retainer agreement signed by Wani. Retainer agreements are not privileged, however, unless they reveal a confidential communication of legal advice — the identity of the cl ...
In re MI Windows & Doors, Inc., Prod. Liab. Litig., MDL No. 2333, Case No. 2:12-mn-00001 (D.S.C. June 12, 2013) (Capra, Special Master): This is a class action retainer agreement signed by Wani. Retainer agreements are not privileged, however, unless…
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Sanctions — Fact That Party’s Position on Merits Is Ultimately Vindicated Does Not Relieve It of Sanctions Imposed for Violation of Discovery Orders

Linde v. Arab Bank, PLC, 2013 U.S. Dist. LEXIS 87040 (E.D.N.Y. June 14, 2013): In recent correspondence, the Bank argues that the claims under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, which constitute the greater number of the approximately 6000 claims in these related cases, will likely be dismissed under Kiobel v. Royal Dutc ...
Linde v. Arab Bank, PLC, 2013 U.S. Dist. LEXIS 87040 (E.D.N.Y. June 14, 2013): In recent correspondence, the Bank argues that the claims under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, which constitute the greater number of the…
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Sanctions Appeal Mooted by Purging of Contempt, Payment of Attorneys’ Fees and Execution of Consent Judgment Settling Sanctions Issues without Reservation of Right to Appeal and to Obtain Return of Amounts Paid If Appeal Successful

RES-GA Cobblestone, LLC v. Blake Constr. & Dev., LLC, 2013 U.S. App. LEXIS 12530 (11th Cir. June 19, 2013): Grady A. Roberts, III, and his law firm Roberts, LLC, (collectively Roberts) challenge the district court's orders directing Roberts to pay a $2,000 fine, $57,000 in contempt sanctions, and the appellees' costs and fees to the tu ...
RES-GA Cobblestone, LLC v. Blake Constr. & Dev., LLC, 2013 U.S. App. LEXIS 12530 (11th Cir. June 19, 2013): Grady A. Roberts, III, and his law firm Roberts, LLC, (collectively Roberts) challenge the district court’s orders directing Roberts to pay…
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RICO Enterprise Allegedly Consisting of Corporation Plus Officers and Employees Fails, As Does One Allegedly Composed of Corporations That Operate Within A Unified Corporate Structure

Cruz v. FXDirectDealer, LLC, 2013 U.S. App. LEXIS 12448 (2d Cir. June 19, 2013): A. Civil RICO Claim Hugo Cruz appeals from a judgment of the United States District Court for the Southern District of New York (Paul A. Crotty, Judge), dismissing his amended complaint. On appeal, Cruz argues that the amended complaint's a ...
Cruz v. FXDirectDealer, LLC, 2013 U.S. App. LEXIS 12448 (2d Cir. June 19, 2013): A. Civil RICO Claim Hugo Cruz appeals from a judgment of the United States District Court for the Southern District of New York (Paul A. Crotty,…
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Discoverability of Settlement Negotiations That Are or May Be Inadmissible under Rule 408 — Burden of Persuasion — Relevance, Admissibility and Protective Order Considerations

In re MI Windows & Doors, Inc., Prod. Liab. Litig., MDL No. 2333, Case No. 2:12-mn-00001 (D.S.C. June 18, 2013) (Capra, Special Master): The Defendant MI Windows and Doors, Inc. (“MIWD”) moves for a protective order under Fed. R. Civ. P. 26, “limiting the production of communications and documents prepared in connection with settl ...
In re MI Windows & Doors, Inc., Prod. Liab. Litig., MDL No. 2333, Case No. 2:12-mn-00001 (D.S.C. June 18, 2013) (Capra, Special Master): The Defendant MI Windows and Doors, Inc. (“MIWD”) moves for a protective order under Fed. R. Civ.…
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RICO — Open-Ended Continuity Sufficiently Alleged Where Phony Banker Bilked Series of Victims over Three Years and Continues to Advertise His Fraudulent Enterprise

CVLR Performance Horses, Inc. v. Wynne, 2013 U.S. App. LEXIS 10799 (4th Cir. May 29, 2013): Because this appeal stems from a dismissal under Rule 12(b)(6), we accept the facts as alleged in CVLR's Amended Complaint. See Martin Marietta v. Int'l. Tel. Satellite Org., 991 F.2d 94, 97 (4th Cir. 1992). Wynne is the sole owner of Rivermont a ...
CVLR Performance Horses, Inc. v. Wynne, 2013 U.S. App. LEXIS 10799 (4th Cir. May 29, 2013): Because this appeal stems from a dismissal under Rule 12(b)(6), we accept the facts as alleged in CVLR’s Amended Complaint. See Martin Marietta v.…
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When Federal Court Has Neither Diversity Nor Federal Question Jurisdiction Exists, § 1367 Does Not Confer Discretion to Exercise Supplemental Jurisdiction over State Law Claims

Dakota, Minnesota & Eastern Railroad Corp. v. Schieffer, 2012 U.S. App. LEXIS 26936 (8th Cir. May 30, 2012): As there is neither diversity nor federal question jurisdiction over Schieffer's contract-based claim for attorneys' fees and expenses, federal jurisdiction must be based upon the district court's supplemental jurisdiction under ...
Dakota, Minnesota & Eastern Railroad Corp. v. Schieffer, 2012 U.S. App. LEXIS 26936 (8th Cir. May 30, 2012): As there is neither diversity nor federal question jurisdiction over Schieffer’s contract-based claim for attorneys’ fees and expenses, federal jurisdiction must be…
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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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