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

Derivative Actions — State Law Sets Demand Requirement in Diversity Action — Also in Federal Question Case If Federal Policies Not Frustrated — State-Law Demand Requirement Applies in RICO Action

Gomes v. Am. Century Cos., 2013 U.S. App. LEXIS 6184 (8th Cir. Mar. 28, 2013): Nelson Gomes, an investor in the American Century International Discovery Fund ("the Fund"), brought Maryland common-law claims and federal racketeering claims for violations of 18 U.S.C. §§ 1962(c) and (d) against the appellees, who are the Fund's fiduciari ...
Gomes v. Am. Century Cos., 2013 U.S. App. LEXIS 6184 (8th Cir. Mar. 28, 2013): Nelson Gomes, an investor in the American Century International Discovery Fund (“the Fund”), brought Maryland common-law claims and federal racketeering claims for violations of 18…
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MTD for Lack of Standing Is under 12(b)(1) (No Subject Matter Jurisdiction), Not 12(b)(6) — Dismissal Is Not on Merits and Is Presumptively without Prejudice — Complaint Must Allege Non-Conclusory Facts Showing Jurisdiction

Allstate Ins. Co. v. Global Med. Billing, Inc., 2013 U.S. App. LEXIS 7277 (6th Cir. April 8, 2013): We review a dismissal for lack of standing de novo. McGlone v. Bell, 681 F.3d 718, 728 (6th Cir. 2012) (citing Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 348 (6th Cir. 2007)). Although the parties and the district court con ...
Allstate Ins. Co. v. Global Med. Billing, Inc., 2013 U.S. App. LEXIS 7277 (6th Cir. April 8, 2013): We review a dismissal for lack of standing de novo. McGlone v. Bell, 681 F.3d 718, 728 (6th Cir. 2012) (citing Prime…
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Spoliation Sanctions — Eleventh Circuit’s Five-Factor Test — Prejudice and Practical Importance of Destroyed Evidence Are Critical

McLeod v. Wal-Mart Stores, Inc., 2013 U.S. App. LEXIS 6669 (11th Cir. April 3, 2013): Debra Kathleen McLeod appeals the district court's grant of summary judgment in favor of Defendants Wal-Mart Stores, Inc., Wal-Mart Stores East, LP, and Wal-Mart Associates, Inc. ("Wal-Mart") in her suit for false arrest, malicious prosecution, and int ...
McLeod v. Wal-Mart Stores, Inc., 2013 U.S. App. LEXIS 6669 (11th Cir. April 3, 2013): Debra Kathleen McLeod appeals the district court’s grant of summary judgment in favor of Defendants Wal-Mart Stores, Inc., Wal-Mart Stores East, LP, and Wal-Mart Associates,…
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“RICO Was Intended to Combat Organized Crime, Not to Provide a Federal Cause of Action and Treble Damages to Every Tort Plaintiff” — Good Quote

Boar, Inc. v. County of Nye, 499 Fed. App’x 713 (9th Cir. 2012): In 2007, Karl and Maverick Snowdon purchased a parcel of land located on 3271 S. Homestead Road in Pahrump, Nevada that they intended to commercially develop. Over the following years, however, the Snowdons would repeatedly be dismayed to discover that there were various ...
Boar, Inc. v. County of Nye, 499 Fed. App’x 713 (9th Cir. 2012): In 2007, Karl and Maverick Snowdon purchased a parcel of land located on 3271 S. Homestead Road in Pahrump, Nevada that they intended to commercially develop. Over…
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Sanctions — Hyde Amendment — Criminal Defendants May Seek Fees for Vexatious, Frivolous or Bad Faith Prosecution — Court

United States v. Manzo, 712 F.3d 805 (3d Cir. 2013): Under a statutory provision known as the "Hyde Amendment," a district court in criminal cases "may award to a prevailing party, other than the United States, a reasonable attorney's fee and other litigation expenses, where the court finds that the position of the United States was ...
United States v. Manzo, 712 F.3d 805 (3d Cir. 2013): Under a statutory provision known as the “Hyde Amendment,” a district court in criminal cases “may award to a prevailing party, other than the United States, a reasonable attorney’s fee…
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Is a National Bank a Citizen Only of the State Housing Its “Main Office” or Also of the State Where Its Principal Place of Business Is Located? Caselaw Split

Adams v. Wells Fargo Bank, N.A., 2013 U.S. Dist. LEXIS 65353 (N.D. Cal. May 7, 2013): Plaintiffs, Christopher D. Adams and Sheila K. Adams, brought this action in state court seeking redress for several statutory and common law violations arising from the origination of their residential mortgage loan. Both Plaintiffs are California cit ...
Adams v. Wells Fargo Bank, N.A., 2013 U.S. Dist. LEXIS 65353 (N.D. Cal. May 7, 2013): Plaintiffs, Christopher D. Adams and Sheila K. Adams, brought this action in state court seeking redress for several statutory and common law violations arising…
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Negligent Spoliation — Sanctions — Deeming Certain Facts Admitted and Precluding Certain Arguments Does Not Prevent Summary Judgment in Favor of Spoliator — Bad Faith Required for Adverse Inference in Seventh Circuit

Northington v. H & M Int’l, 712 F.3d 1062 (7th Cir. 2013): This is a Title VII case involving two issues on appeal: whether in a grant of summary judgment there was any relevant issue of material fact and whether a discovery sanction was properly applied and adhered to by the district court. Since 2005, plaintiff-appellant Ehn ...
Northington v. H & M Int’l, 712 F.3d 1062 (7th Cir. 2013): This is a Title VII case involving two issues on appeal: whether in a grant of summary judgment there was any relevant issue of material fact and whether…
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Mohawk Bars Collateral Order Review of Adverse Privilege Decision Entered against Non-Party as Well as Party — Perlman Review Also Unavailable to Parties Where Subpoenas Served on Counsel Who Gave the Advice Parties Rely on as Defense

United States v. Copar Pumice Co., Inc., 2013 U.S. App. LEXIS 9148 (10th Cir. May 6, 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, ...
United States v. Copar Pumice Co., Inc., 2013 U.S. App. LEXIS 9148 (10th Cir. May 6, 2013): This is an interlocutory appeal arising out of an action filed by the United States against Defendants Kelly Armstrong, Debbie Cantrup, Richard Cook,…
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If 30(b)(6) Witness Adequately Prepared, Others May Testify at Trial on Subjects the 30(b)(6) Lacked Knowledge of — Experts Designated for Non-Trial Purposes (e.g., Class Cert) But Not Trial May Testify on Rebuttal at Trial

Abu Dhabi Commercial Bank v. Morgan Stanley & Co., 2013 U.S. Dist. LEXIS 38787 (S.D.N.Y. Mar. 20, 2013): A. Testimony of Plaintiffs' Witnesses on Subjects About Which Their 30(b)(6) Designees Disclaimed Knowledge Defendants argue that plaintiffs should be precluded from calling witnesses to testify as to key subjects about ...
Abu Dhabi Commercial Bank v. Morgan Stanley & Co., 2013 U.S. Dist. LEXIS 38787 (S.D.N.Y. Mar. 20, 2013): A. Testimony of Plaintiffs’ Witnesses on Subjects About Which Their 30(b)(6) Designees Disclaimed Knowledge Defendants argue that plaintiffs should be precluded from…
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Sanctions — Standards for Award on Appeal under Fed.R.App.P. 38 and 28 U.S.C. § 1912

Bridgeport Music, Inc. v. Smith, 2013 U.S. App. LEXIS 8869 (6th Cir. May 1, 2013): Also before this court is Plaintiffs' motion for damages and costs pursuant to Fed. R. App. P. 38 and 28 U.S.C. § 1912. Section 1912 provides that, "[w]here a judgment is affirmed by the Supreme Court or a court of appeals, the court in its discretion ma ...
Bridgeport Music, Inc. v. Smith, 2013 U.S. App. LEXIS 8869 (6th Cir. May 1, 2013): Also before this court is Plaintiffs’ motion for damages and costs pursuant to Fed. R. App. P. 38 and 28 U.S.C. § 1912. Section 1912…
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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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