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 — Predictions: “The Future Is Shrouded in Uncertainty” — Limited Utility of Confidential Sources — Recantation, Recidivism and Mandatory Sanctions under the PSLRA (Good Quotes — Judge Posner)

City of Livonia Employees’ Retirement Sys. v. Boeing Co., 2013 U.S. App. LEXIS 5975 (7th Cir. Mar. 26, 2013): The suit is on behalf of all persons who bought common stock of Boeing between May 4 and June 22, 2009. The key allegations of the first amended complaint (amended early in the pretrial proceedings) were as follows. On April 2 ...
City of Livonia Employees’ Retirement Sys. v. Boeing Co., 2013 U.S. App. LEXIS 5975 (7th Cir. Mar. 26, 2013): The suit is on behalf of all persons who bought common stock of Boeing between May 4 and June 22, 2009.…
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Experts — “The Trial Court Ought Not Transform a Daubert Hearing into a Trial on the Merits” — Daubert in Bench Trials (Good Quote)

In re Texas Grand Prairie Hotel Realty, LLC (Wells Fargo Bank N.A. v. Texas Grand Prairie Hotel Realty, LLC), 2013 U.S. App. LEXIS 4514 (5th Cir. March 1, 2013): We review a trial court's decision to admit expert testimony for abuse of discretion. As read by Daubert, Rule 702 requires trial courts to ensure that proffered expert testimo ...
In re Texas Grand Prairie Hotel Realty, LLC (Wells Fargo Bank N.A. v. Texas Grand Prairie Hotel Realty, LLC), 2013 U.S. App. LEXIS 4514 (5th Cir. March 1, 2013): We review a trial court’s decision to admit expert testimony for…
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Fraud, Fiduciary Duty, Negligent Misrepresentation, and Contract Claims Duplicative of Legal Malpractice Claim—Arising from Same Facts and Seeking Same Damages—Are Barred under New York Law

Case 1: Amusement Indus., Inc. v. Buchanan Ingersoll & Rooney, P.C., 2013 U.S. Dist. LEXIS 8569 (S.D.N.Y. Jan 22, 2013) (R&R): [T]here is a "longstanding body of New York case law that bars other claims for relief relying on the same facts and seeking the same relief as [a legal] malpractice claim." Amusement Indus., Inc., 2012 ...
Case 1: Amusement Indus., Inc. v. Buchanan Ingersoll & Rooney, P.C., 2013 U.S. Dist. LEXIS 8569 (S.D.N.Y. Jan 22, 2013) (R&R): [T]here is a “longstanding body of New York case law that bars other claims for relief relying on the…
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Securities — Is There a Continuing Fraud Exception to the Statute of Repose? Caselaw Split

Carlucci v. Han, 886 F. Supp. 2d 497 (E.D. Va. 2012): 1. Section 10(b) Claim Section 10(b) claims are subject to a two-year statute of limitations and a five-year statute of repose. 28 U.S.C. § 1658(b). A statute of limitations is "[a] law that bars claims after a specified period; specif[ically], a statute establishi ...
Carlucci v. Han, 886 F. Supp. 2d 497 (E.D. Va. 2012): 1. Section 10(b) Claim Section 10(b) claims are subject to a two-year statute of limitations and a five-year statute of repose. 28 U.S.C. § 1658(b). A statute of limitations…
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Rule 11 Sanctions Imposed for Suing a Dog — Hard to Prove “Meeting of the Minds”

Hammary v. Soles, 2013 U.S. Dist. LEXIS 40033 (M.D.N.C. Mar. 22, 2013): Dyron Hammary has sued several law enforcement officers and a dog for civil rights violations arising out of a traffic stop and his subsequent arrest and imprisonment on later-dismissed cocaine charges. The complaint adequately alleges that the officer who s ...
Hammary v. Soles, 2013 U.S. Dist. LEXIS 40033 (M.D.N.C. Mar. 22, 2013): Dyron Hammary has sued several law enforcement officers and a dog for civil rights violations arising out of a traffic stop and his subsequent arrest and imprisonment on…
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Securities — Section 11 — Where Multiple Offerings of Securities, Plaintiffs Must Satisfy Twiqbal in Alleging Their Shares Are Traceable to a Particular Offering — Error to Consider Extrinsic Evidence on This Issue (12(b)(6), Not 12(b)(1), Issue)

In re Century Aluminum Company Secs. Litig., 704 F.3d 1119 (9th Cir. 2013): Section 11 of the Securities Act of 1933, 15 U.S.C. § 77k, provides a cause of action to any person who buys a security issued under a materially false or misleading registration statement. Plaintiffs need not have purchased shares in the offering made unde ...
In re Century Aluminum Company Secs. Litig., 704 F.3d 1119 (9th Cir. 2013): Section 11 of the Securities Act of 1933, 15 U.S.C. § 77k, provides a cause of action to any person who buys a security issued under a…
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Unretained Experts — Failure to Identify Specific Facts or Opinions = Inadequate Disclosure — Adversary Must Provide Disclosure for Cross-Designation of Expert If Evidence Different from Proponent’s Designation or Witness’s Deposition

Shepeard v. Labette Cnty. Med. Ctr., 2013 U.S. Dist. LEXIS 31381 (D. Kan. Mar. 7, 2013): Before the Court is Plaintiff's Motion to Compel seeking supplemental information regarding Defendant's non-retained expert witness disclosures pursuant to Fed.R.Civ.P. 26(a)(2)(C). Having reviewed the submissions of the parties, including the wi ...
Shepeard v. Labette Cnty. Med. Ctr., 2013 U.S. Dist. LEXIS 31381 (D. Kan. Mar. 7, 2013): Before the Court is Plaintiff’s Motion to Compel seeking supplemental information regarding Defendant’s non-retained expert witness disclosures pursuant to Fed.R.Civ.P. 26(a)(2)(C). Having reviewed the…
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Elements and Burden of Proof of a Whistleblower Claim under Sarbanes-Oxley

Bechtel v. Administrative Review Bd., U.S. Dep't of Labor, 2013 U.S. App. LEXIS 4539 (2d Cir. Mar. 5, 2013): Section 806 of the Sarbanes-Oxley Act, 15 U.S.C. § 1514A, seeks to combat what Congress identified as a corporate "culture, supported by law, that discourage[s] employees from reporting fraudulent behavior not only to the proper ...
Bechtel v. Administrative Review Bd., U.S. Dep’t of Labor, 2013 U.S. App. LEXIS 4539 (2d Cir. Mar. 5, 2013): Section 806 of the Sarbanes-Oxley Act, 15 U.S.C. § 1514A, seeks to combat what Congress identified as a corporate “culture, supported…
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Cunningham Bars Interlocutory Appeal of Sanctions under Rule 11, § 1927 and Inherent Power, Not Just Rule 37 — What Is a “Relief Defendant” — When Appeal Is Inextricably Bound Up with an Injunction

SEC v. Smith, 2013 U.S. App. LEXIS 5325 (2d Cir. Mar. 18, 2013): Appellants, the David L. and Lynn A. Smith Irrevocable Trust U/A 8/04/04 (the "Trust") and various individuals, appeal from Magistrate Judge Homer's order directing the disposition of the Trust's assets and sanctioning: (i) Lynn Smith, a defendant in the action, and (ii) n ...
SEC v. Smith, 2013 U.S. App. LEXIS 5325 (2d Cir. Mar. 18, 2013): Appellants, the David L. and Lynn A. Smith Irrevocable Trust U/A 8/04/04 (the “Trust”) and various individuals, appeal from Magistrate Judge Homer’s order directing the disposition of…
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Administrative Closing of Case vs. Dismissal without Prejudice: Effect on Jurisdiction — “Evident Partiality” as Ground to Overturn Arbitration Award Is Narrower Than Judicial Recusal Standard — Mere Appearance of Bias Insufficient

Freeman v. Pittsburgh Glass Works, LLC, 2013 U.S. App. LEXIS 4561 (3d Cir. Mar. 6, 2013): James Freeman recently lost an arbitration dispute. Soon thereafter, he discovered that the arbitrator had received contributions for a judicial campaign from PPG Industries, the defendants' minority owner. Freeman filed a motion to vacate the arbi ...
Freeman v. Pittsburgh Glass Works, LLC, 2013 U.S. App. LEXIS 4561 (3d Cir. Mar. 6, 2013): James Freeman recently lost an arbitration dispute. Soon thereafter, he discovered that the arbitrator had received contributions for a judicial campaign from PPG Industries,…
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Recent Posts

RICO: Members of Association-in-Fact Enterprise Must Act with a Common Purpose—Mere Allegation That Various Defendants Agreed at Different Times to Engage in Various Fraudulent Schemes Does Not Plausibly Support the Essential Inference, That They Acted with s Sufficiently Common Purpose

RICO Causation: (1) State’s Misrepresentation to Federal Government That It Was Providing Plaintiffs with Mandated Special Education Did Not Cause Plaintiffs’ Injury Because The Failure to Provide The Education Was Not Caused by the Fraud on the Federal Government — (2) The Three Factors for Assessing RICO Causation — (3) Limits of the Second Circuit’s Decision in Alix v. McKinsey That Causation Can Be Established Where A Fraud On The Judiciary “Or Other Governmental Entity” Resulted In A Resource Going To Someone Less Deserving

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

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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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