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

Standards for Dismissal under Rules 37 and 41(b) — Rule 37 Factors Not Exhaustive — Each Need Not Be Satisfied If Order Is “Just” — Pro Se Must Be Warned before Sanction of Dismissal Imposed — 41(b) Dismissal May Be Sua Sponte

Manigaulte v. C.W. Post of Long Island Univ., 2013 U.S. App. LEXIS 14096 (2d Cir. July 12, 2013): While "dismissal with prejudice is a harsh remedy to be used only in extreme situations, and then only when a court finds willfulness, bad faith, or any fault by the non-compliant litigant," Agiwal, 555 F.3d at 302 (internal quotat ...
Manigaulte v. C.W. Post of Long Island Univ., 2013 U.S. App. LEXIS 14096 (2d Cir. July 12, 2013): While “dismissal with prejudice is a harsh remedy to be used only in extreme situations, and then only when a court finds…
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Governmental Entity (Municipal Corporation) Cannot Be Sued under RICO Because Treble Damage Remedy Is Primarily Punitive

Tengood v. City of Philadelphia, 2013 U.S. App. LEXIS 12151 (3d Cir. June 17, 2013): Appellant challenges the district court's entry of summary judgment in favor of the City on Counts 1 and 2 of the Complaint, alleging it was error to conclude that the City cannot be subject to RICO liability. This argument is foreclosed by our decision ...
Tengood v. City of Philadelphia, 2013 U.S. App. LEXIS 12151 (3d Cir. June 17, 2013): Appellant challenges the district court’s entry of summary judgment in favor of the City on Counts 1 and 2 of the Complaint, alleging it was…
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Duty Imposed by Contract Clause Requiring “Best Efforts” — Good Faith and Fair Dealing Claim Redundant of Breach of Contract Claim

Cruz v. FXDirectDealer, LLC, 2013 U.S. App. LEXIS 12448 (2d Cir. June 19, 2013): C. Breach of Contract Claim Cruz claims that FXDD breached the Agreement by failing to use its "best efforts" to execute customer trade orders. FXDD responds that Cruz's breach of contract claim fails because the Agreement warns that FXDD ma ...
Cruz v. FXDirectDealer, LLC, 2013 U.S. App. LEXIS 12448 (2d Cir. June 19, 2013): C. Breach of Contract Claim Cruz claims that FXDD breached the Agreement by failing to use its “best efforts” to execute customer trade orders. FXDD responds…
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While Intra-Circuit Splits Ordinarily May Be Resolved Only En Banc, a Three-Judge Panel May Overrule One Line of Cases Clearly Irreconcilable with Intervening Supreme Court Decision

United States ex rel. Air Control Techs., Inc. v. Pre Con Indus., Inc., 2013 U.S. App. LEXIS 13314 (9th Cir. June 28, 2013): Ordinarily, intra-circuit splits may only be resolved by an en banc panel. Atonio v. Wards Cove Packing Co., Inc., 810 F.2d 1477, 1478-79 (9th Cir. 1987) (en banc). But when intervening higher authori ...
United States ex rel. Air Control Techs., Inc. v. Pre Con Indus., Inc., 2013 U.S. App. LEXIS 13314 (9th Cir. June 28, 2013): Ordinarily, intra-circuit splits may only be resolved by an en banc panel. Atonio v. Wards Cove Packing…
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RICO — Enterprise of 2 Companies and Personnel Fails — Acts Were Taken by Members Conducting Their Own Affairs, Not Enterprise’s — Mere Violation of Predicate Acts Insufficient — Good Quotes

United Food And Commercial Workers Unions And Employers Midwest Health Benefits Fund v. Walgreen Co., 2013 U.S. App. LEXIS 13711 (7th Cir. July 8, 2013): The United Food and Commercial Workers Unions and Employers Midwest Health Benefits Fund (the Fund), an employee benefit plan that provides healthcare benefits to its participants, is ...
United Food And Commercial Workers Unions And Employers Midwest Health Benefits Fund v. Walgreen Co., 2013 U.S. App. LEXIS 13711 (7th Cir. July 8, 2013): The United Food and Commercial Workers Unions and Employers Midwest Health Benefits Fund (the Fund),…
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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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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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