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

Securities — Section 11 — The Affirmative Defense of “Negative Causation” and Overcoming It

Hildes v. Arthur Andersen LLP, 2013 U.S. App. LEXIS 17177 (9th Cir. Aug. 19, 2013): David Hildes appeals from a district court order denying leave to amend his complaint. Hildes sought to add a claim under Section 11 of the Securities Act of 1933, 15 U.S.C. § 77k, against former outside directors of Peregrine Systems, Inc. ("Peregrine" ...
Hildes v. Arthur Andersen LLP, 2013 U.S. App. LEXIS 17177 (9th Cir. Aug. 19, 2013): David Hildes appeals from a district court order denying leave to amend his complaint. Hildes sought to add a claim under Section 11 of the…
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Class Actions — The 3½ Grounds Warranting Discretionary Review of a Certification Decision under Rule 23(f)

In re Rail Freight Fuel Surcharge Antitrust Litig., 2013 U.S. App. LEXIS 16500 (D.C. Cir. Aug. 9, 2013): Before addressing the merits, we pause to consider a thorny threshold question. Should we be exercising our appellate jurisdiction over this case in the first place? Class certification is, after all, not a final decision of the sort ...
In re Rail Freight Fuel Surcharge Antitrust Litig., 2013 U.S. App. LEXIS 16500 (D.C. Cir. Aug. 9, 2013): Before addressing the merits, we pause to consider a thorny threshold question. Should we be exercising our appellate jurisdiction over this case…
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Rule 41(a)(1)(A)(ii) Stipulated Dismissal without Prejudice Is a Final Proceeding Subject to Vacatur under Rule 60(b)

Yesh Music v. Lakewood Church, 2013 U.S. App. LEXIS 16884 (5th Cir. Aug. 14, 2013): Plaintiff-Appellee Yesh Music is a general partnership comprised of Appellees Richard Cupolo and John Emanuele, two musicians who write, record, and perform ambient music. Defendant-Appellant Lakewood Church ("Lakewood"), pastored by Joel and Victoria ...
Yesh Music v. Lakewood Church, 2013 U.S. App. LEXIS 16884 (5th Cir. Aug. 14, 2013): Plaintiff-Appellee Yesh Music is a general partnership comprised of Appellees Richard Cupolo and John Emanuele, two musicians who write, record, and perform ambient music. Defendant-Appellant…
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Rule 11 Sanctions — “Court Is Expected to Avoid the Wisdom of Hindsight” — Reasonable Reliance on Others — Burden of Proof (Good Quotes)

Anderson v. Bd. of School Directors of Millcreek Township, 2013 U.S. Dist. LEXIS 116082 (W.D. Pa. Aug. 16, 2013): In determining whether a document was submitted in violation of Rule 11, the adjudicating court "is expected to avoid the wisdom of hindsight and should test the signer's conduct by [asking] what was reasonable to believ ...
Anderson v. Bd. of School Directors of Millcreek Township, 2013 U.S. Dist. LEXIS 116082 (W.D. Pa. Aug. 16, 2013): In determining whether a document was submitted in violation of Rule 11, the adjudicating court “is expected to avoid the wisdom…
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Arbitration — Incorporation of UNCITRAL or AAA Rules in an Arbitration Clause Constitutes Clear and Unmistakable Evidence that Sophisticated Parties Intended to Delegate Arbitrability to Arbitrator

Oracle Am., Inc. v. Myriad Grp A.G., 2013 U.S. App. LEXIS 15284 (9th Cir. July 26, 2013): Myriad Group A.G. appeals the district court's partial denial of its motion to compel arbitration. Myriad maintains that incorporation of the United Nations Commission on International Trade Law (UNCITRAL) arbitration rules into an arbitration prov ...
Oracle Am., Inc. v. Myriad Grp A.G., 2013 U.S. App. LEXIS 15284 (9th Cir. July 26, 2013): Myriad Group A.G. appeals the district court’s partial denial of its motion to compel arbitration. Myriad maintains that incorporation of the United Nations…
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Class Actions: Post-Comcast, Court May Certify Liability-Only Class Even If Individualized Issues Predominate on Damages, Provided Damages Track Liability — Meaning of GVR Order from Supreme Court

Jacob v. Duane Reade, Inc., 2013 U.S. Dist. LEXIS 111989 (S.D.N.Y. Aug. 8, 2013): Plaintiffs, individually and on behalf of all others similarly situated, bring claims against Duane Reade, Inc. and Duane Reade Holdings (collectively, "DR"), asserting that DR failed to compensate its assistant store managers ("ASMs") for hours worked in ...
Jacob v. Duane Reade, Inc., 2013 U.S. Dist. LEXIS 111989 (S.D.N.Y. Aug. 8, 2013): Plaintiffs, individually and on behalf of all others similarly situated, bring claims against Duane Reade, Inc. and Duane Reade Holdings (collectively, “DR”), asserting that DR failed…
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Rule 11 Sanctions Reversed Where Pleading Corrected Prior to Rule 11 Motion Having Been Filed, Rendering Correction During Safe Harbor Period Impossible

Islamic Shura Council of S. Cal. v. FBI, 2013 U.S. App. LEXIS 15652 (9th Cir. July 31, 2013): The Federal Bureau of Investigation ("FBI") appeals the district court's order granting the Islamic Shura Council of Southern California's ("Shura Council") motion for sanctions under Federal Rule of Civil Procedure 11(c). See Islamic ...
Islamic Shura Council of S. Cal. v. FBI, 2013 U.S. App. LEXIS 15652 (9th Cir. July 31, 2013): The Federal Bureau of Investigation (“FBI”) appeals the district court’s order granting the Islamic Shura Council of Southern California’s (“Shura Council”) motion…
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Splitting Cause of Action — The Entire Controversy Doctrine — “Enough Is Enough” — Good Quote — § 1927 Sanctions for Venue Transfer Motion by Plaintiff Who Had Just Won Appeal That Venue Was Proper

Great W. Mining & Mineral Co. v ADR Options, Inc., 2013 U.S. App. LEXIS 16439 (3d Cir. Aug. 8, 2013): The "tortured procedural history" of this case is well-known. (J.A. 6.) In 2002, Plaintiff and Brownstein and Vitale ("B&V") agreed to arbitrate a legal malpractice claim that Plaintiff had asserted against B&V (the "Arbitration"). Fox ...
Great W. Mining & Mineral Co. v ADR Options, Inc., 2013 U.S. App. LEXIS 16439 (3d Cir. Aug. 8, 2013): The “tortured procedural history” of this case is well-known. (J.A. 6.) In 2002, Plaintiff and Brownstein and Vitale (“B&V”) agreed…
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Rule 19(b) — Indispensability of Necessary Party — Circuit Split over Standard of Appellate Review: Abuse of Discretion vs. De Novo

Marvel Characters, Inc. v. Kirby, 2013 U.S. App. LEXIS 16396 (2d Cir. Aug. 8, 2013): A. Federal Rule of Civil Procedure 19 Rule 19 recognizes exceptional circumstances in which the plaintiff's choice of parties or forum must give way because of an absent party's interest in the outcome of the action or involvement in t ...
Marvel Characters, Inc. v. Kirby, 2013 U.S. App. LEXIS 16396 (2d Cir. Aug. 8, 2013): A. Federal Rule of Civil Procedure 19 Rule 19 recognizes exceptional circumstances in which the plaintiff’s choice of parties or forum must give way because…
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Injunctions and Circuit Splits — Federal Court Should Not Issue Nationwide Injunction Where One Would Not Issue under the Law of Another Circuit

Fox TV Stations, Inc. v. BarryDriller Content Sys., PLC, 915 F. Supp. 2d 1138 (C.D. Cal. 2012): B. Geographical Reach of Injunction Where Circuit Split Present Courts should not issue nationwide injunctions where the injunction would not issue under the law of another circuit. Principles of comity ...
Fox TV Stations, Inc. v. BarryDriller Content Sys., PLC, 915 F. Supp. 2d 1138 (C.D. Cal. 2012): B. Geographical Reach of Injunction Where Circuit Split Present Courts should not issue nationwide injunctions where the injunction would not issue under the…
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Recent Posts

Supreme Court: (1) Fraudulent Inducement Theory of Mail Fraud: Statute Violated If Victim Is Tricked into Parting with Money Or Property, Even If Victim Suffers No Pecuniary Loss — (2) “A Fraud Is Complete When The Defendant Has Induced The Deprivation Of Money Or Property Under Materially False Pretenses” — (3) The Old Soil Principle of Statutory Construction Applies Only to the Extent That a Common-Law Term Has Accumulated a Settled Meaning — (4) Rescission for Fraud Does Not Require Economic Loss; Sufficient If Property of A Different Character Or Condition Provided — i.e, If Victim Tricked into A Bargain Materially Different from The One Promised — (5) “At The Right Level Of Specificity, Anything Can Be Described As ‘Unique’ Or ‘Different From’ Something Else” (Good Quote) — (6) “Materiality Look[s] To The Effect On The Likely Or Actual Behavior Of The Recipient Of The Alleged Misrepresentation” (Good Quote)

Statements in Briefs As Judicial Admissions

Supreme Court: TRO As Appealable Order — And District Court Inaction As Tantamount to Refusing An Injunction And Thus Appealable

“Slow-Playing Discovery” in Response to Court Order, Prejudicing Opponent, Violates Rule 37(b)(2)(A)

RICO Pattern: No Closed-Ended Continuity If Racketeering Activity Lasted Less Than One Year (11th Circuit) — Conspiracy Allegations Governed by Rule 8(a), Not 9(b) — Two Paths to Establishing A RICO Conspiracy: Agreement to Objective Or to Commit 2 Predicate Acts — Plaintiff Need Not Show Reliance When The Predicate Acts Are Wire Fraud — In Dicta, 11th Circuit Intimates That Even If The Primary RICO Violation Allegations Fail, The RICO Conspiracy Allegations Might Survive, But Is Probably Talking About A Conspiracy to Commit The Predicate Acts

United States Trinity Energy Servs., L.L.C. v. Se. Directional Drilling, L.L.C., 2025 U.S. App. LEXIS 10178 (5th Cir. Apr. 28, 2025): FRAP 38 Separate Motion Requirement FRAP 38 Sanctions Properly Denied for Want of Separate Motion — Request in Brief Insufficient — “Manifest Disregard” Is Not A Freestanding Ground for Vacatur of Arbitration Award in Fifth Circuit (Or First, Eighth Or Eleventh)

§ 1927 Sanctions Apt for Failing to Withdraw Claim Until Summary Judgment Hearing, Requiring Opponent and Court to Prepare for An Abandoned Argument — Bad Faith Established by False and Misleading Statements to Court — Raising New Argument for First Time in Reply Brief Does Not Warrant § 1927 Sanctions

RICO: Mail and Wire Fraud: Act of Emailing Transcript of Court Proceedings Containing Allegedly False Statements Made in Court ≠ Wire Fraud — Mailing (Serving on Opposing Party) Declarations Allegedly Containing False Statements ≠ Mail Fraud

Supreme Court: (1) Rule 11 Sanctions Available Where Affirmative Defense “Obviously Applies” and Plaintiff/Plaintiff’s Counsel “Lack A Good Faith Basis to Believe Otherwise” — (2) If Affirmative Defense Pled, Court May Require Plaintiff to File a Reply to the Answer Pursuant to Fed. R. Civ. P. 7(a) Setting forth “Specific, Nonconclusory Factual Allegations” Showing That The Affirmative Defense Does Not Apply — (3) The Title of a Statute And The Heading of a Section May Properly Be Used to Interpret the Text

FRAP 38 Sanctions — Sixth Circuit Usually Declines to Impose FRAP 38 Sanctions Unless An Improper Purpose Was Behind the Appeal

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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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