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

Defendant Cannot Moot Class Action by Offering Named Plaintiff Less Than Everything Sued for Simply Because, on the Merits, Plaintiff Is Entitled to Less — Rule 68 vs. Mootness — Merits vs. Standing

Hrivnak v. NCO Portfolio Mgmt., Inc., 2013 U.S. App. LEXIS 11687 (6th Cir. June 11, 2013): Christopher Hrivnak sued several debt-management companies and a law firm, (1) claiming they violated federal and state law when they dunned him on several credit-card debts and (2) seeking to obtain monetary and injunctive relief on behalf of a ...
Hrivnak v. NCO Portfolio Mgmt., Inc., 2013 U.S. App. LEXIS 11687 (6th Cir. June 11, 2013): Christopher Hrivnak sued several debt-management companies and a law firm, (1) claiming they violated federal and state law when they dunned him on several…
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Mohawk Applies to Privileged Material Held by Non-Party, Bars Appellate Review of Order Requiring Disclosure under Collateral Order or Perlman or Pragmatic Finality Doctrine — Mandamus Denied

United States v. Copar Pumice Co., 714 F.3d 1197 (10th Cir. 2013): This is an interlocutory appeal arising out of an action filed by the United States against Defendants Kelly Armstrong, Debbie Cantrup, Richard Cook, Shirley Cook (collectively "the Cooks"), and Copar Pumice Company, Inc. ("Copar") for trespass, conversion, and unjust en ...
United States v. Copar Pumice Co., 714 F.3d 1197 (10th Cir. 2013): This is an interlocutory appeal arising out of an action filed by the United States against Defendants Kelly Armstrong, Debbie Cantrup, Richard Cook, Shirley Cook (collectively “the Cooks”),…
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Supreme Court: Erroneous Decision by Arbitrator That Clause Authorizes Class Arbitration Is Unreviewable — But This May Be an Issue of Arbitrability for the Court — Concurrence: Absent Class Members Not Bound

Oxford Health Plans LLC v. Sutter, 2013 U.S. LEXIS 4358 (U.S. June 10, 2013): Class arbitration is a matter of consent: An arbitrator may employ class procedures only if the parties have authorized them. See Stolt-Nielsen S. A. v. AnimalFeeds Int'l Corp., 559 U. S. 662, 684, 130 S. Ct. 1758, 176 L. Ed. 2d 605 (2010). In this cas ...
Oxford Health Plans LLC v. Sutter, 2013 U.S. LEXIS 4358 (U.S. June 10, 2013): Class arbitration is a matter of consent: An arbitrator may employ class procedures only if the parties have authorized them. See Stolt-Nielsen S. A. v. AnimalFeeds…
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Stricter Authentication Standards for Facebook Messages Than for Email — No Hearsay Issues Raised by Automatically-Generated Notification Message — Hearsay of Forwarded Messages/Emails

Smith v. State, 2013 Miss. App. LEXIS 318 (Miss. Ct. App. June 4, 2013): A. Whether the Facebook messages were inadmissible because they were not properly authenticated. P30. Smith claims that the messages were not properly authenticated. Mississippi Rule of Evidence 901(a) provides that "[t]he requirement of authentica ...
Smith v. State, 2013 Miss. App. LEXIS 318 (Miss. Ct. App. June 4, 2013): A. Whether the Facebook messages were inadmissible because they were not properly authenticated. P30. Smith claims that the messages were not properly authenticated. Mississippi Rule of…
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Federal Jurisdiction — Sovereign Immunity of Indian Tribes Extends to Tribally-Owned Casinos — Congress Must Unequivocally Authorize Suit or Tribe Must Waive Its Immunity

Goldberg v. Foxwoods Resort Casino, 2013 U.S. App. LEXIS 11138 (2d Cir. June 4, 2013): Appellant Bruce E. Tassone, pro se, appeals from the judgment of the district court granting Appellees' motion to dismiss for lack of jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1), Appellant's complaint asserting, inter alia, viol ...
Goldberg v. Foxwoods Resort Casino, 2013 U.S. App. LEXIS 11138 (2d Cir. June 4, 2013): Appellant Bruce E. Tassone, pro se, appeals from the judgment of the district court granting Appellees’ motion to dismiss for lack of jurisdiction, pursuant to…
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RICO — Rimless Hub-and-Spoke Configuration Does Not State an Enterprise — 9(b) Applies Only to Predicate Acts Sounding in Fraud

Target Corp. v. LCH Pavement Consultants, LLC, 2013 U.S. Dist. LEXIS 80306 (D. Minn. June 7, 2013): Target sued its paving consultant, LCH Pavement Consultants, LLC ("LCH"); three employees of LCH, Leslie Bailey ("Bailey"), Lois Wade ("Wade"), and Keith Heutzenroeder ("Heutzenroeder"); four paving companies, United Paving Company ("Unit ...
Target Corp. v. LCH Pavement Consultants, LLC, 2013 U.S. Dist. LEXIS 80306 (D. Minn. June 7, 2013): Target sued its paving consultant, LCH Pavement Consultants, LLC (“LCH”); three employees of LCH, Leslie Bailey (“Bailey”), Lois Wade (“Wade”), and Keith Heutzenroeder…
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Is Equitable Tolling Applicable to Claims Brought Pursuant to the Federal Tort Claims Act? Circuit Split

Goldblatt v. Nat’l Credit Union Admin., 502 Fed. Appx. 53 (2d Cir. 2012): Footnote 2. In this Circuit, it is an open question whether equitable tolling is available for tort claims brought pursuant to the FTCA. See, e.g., A.Q.C. ex rel. Castillo v. United States, 656 F.3d 135, 144 n.6 (2d Cir. 2011). Other circuits are ...
Goldblatt v. Nat’l Credit Union Admin., 502 Fed. Appx. 53 (2d Cir. 2012): Footnote 2. In this Circuit, it is an open question whether equitable tolling is available for tort claims brought pursuant to the FTCA. See, e.g., A.Q.C. ex…
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Section 11 Claim Requires Only Allegations of Objective Falsity — Not That Defendants Disbelieved Statements at Time — Circuit Split — Disclaimer in § 11 Complaint Does Not Obviate 9(b) If Fraud Alleged

Indiana State Dist. Council of Laborers & Hod Carriers Pension & Welfare Fund v. Omnicare, Inc., 2013 U.S. App. LEXIS 10385 (6th Cir. May 23, 2013): Plaintiffs, all Omnicare investors, appeal the dismissal of their securities suit under § 11 of the Securities Act of 1933, 15 U.S.C. § 77k (2010), against Defendants Omnicare, Inc., its ...
Indiana State Dist. Council of Laborers & Hod Carriers Pension & Welfare Fund v. Omnicare, Inc., 2013 U.S. App. LEXIS 10385 (6th Cir. May 23, 2013): Plaintiffs, all Omnicare investors, appeal the dismissal of their securities suit under § 11…
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Email Evidence — Mere Fact That Email Is Kept in Routine Course of Business Operations Does Not Render It Admissible as a Business Record

United States v. Cone, 714 F.3d 197 (4th Cir. 2012): D. Introduction of Customer E-Mails Cone and Zhao last argue that the district court erred in admitting certain e-mails from JDC customers complaining that JDC products were "counterfeit" and "fake." Although the district court determined that the e-mails were introduced ...
United States v. Cone, 714 F.3d 197 (4th Cir. 2012): D. Introduction of Customer E-Mails Cone and Zhao last argue that the district court erred in admitting certain e-mails from JDC customers complaining that JDC products were “counterfeit” and “fake.”…
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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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