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

Class Action Fairness Act Jurisdiction — Circuit Split as to How to Determine Whether a State Is a Real Party in Interest in a Parens Patriae Action — Claim-by-Claim vs. Wholesale Approach to Reading Complaint

Myinfoguard v. Sorrell, 2012 U.S. Dist. LEXIS 161070 (D. Vt. Nov. 9, 2012): With respect to both section 1332(a) and CAFA, federal courts are in general agreement that "a crucial distinction must be made between a plaintiff who sues solely in his capacity as an agent, on the one hand, and, on the other, a plaintiff who sues ...
Myinfoguard v. Sorrell, 2012 U.S. Dist. LEXIS 161070 (D. Vt. Nov. 9, 2012): With respect to both section 1332(a) and CAFA, federal courts are in general agreement that “a crucial distinction must be made between a plaintiff who sues solely…
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Confronting Argument That Binding Supreme Court Decision Is Wrong: “Whether or Not the Supreme Court Is Infallible, It Is Final,” and “It Belongs to That Court … to Decide Whether to Revisit Its Precedent” — Good Quotes

Woolsey v. Citibank, N.A., 696 F.3d 1266 (10th Cir. 2012): Before us, though, the Woolseys don't just shrink from, they repudiate the only possible winning argument they may have had. They choose to pursue instead and exclusively a line of attack long foreclosed by Supreme Court precedent. To be sure, the Woolseys argue vigorously and w ...
Woolsey v. Citibank, N.A., 696 F.3d 1266 (10th Cir. 2012): Before us, though, the Woolseys don’t just shrink from, they repudiate the only possible winning argument they may have had. They choose to pursue instead and exclusively a line of…
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RICO — 9(b) Standards Relaxed Where Fraud Entails Concealing Identity of Speakers — RICO Conspiracy Claim Fails Absent Allegation That Defendants Knew the Alleged Acts Were Part of a Pattern of Racketeering

Grant v. Turner, 2012 U.S. App. LEXIS 24316 (3d Cir. Nov. 27, 2012): In May 2009, a group of putative class action Plaintiffs brought suit against various individual and corporate Defendants, alleging that those Defendants were involved in creating and perpetuating fraudulent travel clubs ("Travel Club Defendants"). Plaintiffs alleged t ...
Grant v. Turner, 2012 U.S. App. LEXIS 24316 (3d Cir. Nov. 27, 2012): In May 2009, a group of putative class action Plaintiffs brought suit against various individual and corporate Defendants, alleging that those Defendants were involved in creating and…
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Failure to Appeal Magistrate Judge’s Decision to District Court in Timely Fashion Waives Objections

Shell’s Disposal & Recycling, Inc. v. City of Lancaster, 2012 U.S. App. LEXIS 23549 (3d Cir. Nov. 16, 2012): Footnote 9. To the extent that Shell's Disposal challenges Judge Wells's authority to issue the January 15, 2010 order closing the case, that claim is also unavailing. The Company had the right to appeal or file objections ...
Shell’s Disposal & Recycling, Inc. v. City of Lancaster, 2012 U.S. App. LEXIS 23549 (3d Cir. Nov. 16, 2012): Footnote 9. To the extent that Shell’s Disposal challenges Judge Wells’s authority to issue the January 15, 2010 order closing the…
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Circuit Split as to Proper Standard of Review — De Novo or Abuse of Discretion — to Determine Whether Evidence Falls within Rule 404(b); Factors Guiding 404(b) Determination

Pierce v. Virga, 2012 U.S. Dist. LEXIS 166663 (E.D. Cal. Nov. 21, 2012): There is a split among the circuit courts as to the proper standard of review, de novo or abuse of discretion, to be applied to the question of whether evidence falls within the scope of Rule 404(b). The Ninth Circuit applies a de novo standard, [United ...
Pierce v. Virga, 2012 U.S. Dist. LEXIS 166663 (E.D. Cal. Nov. 21, 2012): There is a split among the circuit courts as to the proper standard of review, de novo or abuse of discretion, to be applied to the question…
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Consulting Expert Retained by Client Prior to Anticipation of Litigation Not Immune from Discovery — Rule 26(b)(4)(D) Inapplicable

Quality Time, Inc. v. West Bend Mutual Ins. Co., 2012 U.S. Dist. LEXIS 161703 (D. Kan. Nov. 13, 2012): Rule 26(b)(4)(B) states that "Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded." The rule does not otherwise protect expert reports ...
Quality Time, Inc. v. West Bend Mutual Ins. Co., 2012 U.S. Dist. LEXIS 161703 (D. Kan. Nov. 13, 2012): Rule 26(b)(4)(B) states that “Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of…
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Denial of Rule 54(b) Certification Order Is Not Immediately Appealable — Unsupported Dicta in Prior Decision That Would Create Circuit Split on Issue Construed Away

Lewis v. Sheriff's Department Bossier Parish, 478 Fed. Appx. 809 (5th Cir. 2012): Although we have not squarely addressed the question of whether a denial of a Rule 54(b) certification motion is immediately appealable, our sister circuits have repeatedly held that the denial of a Rule 54(b) certification is not appealable. See ...
Lewis v. Sheriff’s Department Bossier Parish, 478 Fed. Appx. 809 (5th Cir. 2012): Although we have not squarely addressed the question of whether a denial of a Rule 54(b) certification motion is immediately appealable, our sister circuits have repeatedly held…
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Sanctions — Substantive Differences between Rule 11 and 35 U.S.C. § 285 — Different Standards of Appellate Review — Inaptness of Deferential Review for Huge Attorneys’ Fees Award — No Deference on Issue of Objective Reasonableness under § 285

Highmark, Inc. v. Allcare Health Mgmt. Sys., Inc., 2012 U.S. App. LEXIS 25054 (Fed. Cir. Dec. 6, 2012) (Dyk, J., concurring): Judge Moore, Judge Reyna, and Judge Mayer in his panel dissent, urge that both this decision and Bard are inconsistent with our prior authority. This is incorrect. More fundamentally, they assert that the de ...
Highmark, Inc. v. Allcare Health Mgmt. Sys., Inc., 2012 U.S. App. LEXIS 25054 (Fed. Cir. Dec. 6, 2012) (Dyk, J., concurring): Judge Moore, Judge Reyna, and Judge Mayer in his panel dissent, urge that both this decision and Bard are…
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Serving Expert Report Months Late Harmless Where Sufficient Time Remains in Discovery Schedule for Deposition

Edwards v. Nike Retail Servs., Inc., 2012 U.S. Dist. LEXIS 157822 (E.D. Cal. Nov. 2, 2012): [D]efendants' late disclosure of the medical expert reports on October 11, 2012, although potentially inconvenient in some sense, was ultimately harmless, because it left sufficient time for plaintiff to conduct the deposition of defendant's ...
Edwards v. Nike Retail Servs., Inc., 2012 U.S. Dist. LEXIS 157822 (E.D. Cal. Nov. 2, 2012): [D]efendants’ late disclosure of the medical expert reports on October 11, 2012, although potentially inconvenient in some sense, was ultimately harmless, because it left…
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Sanctions — No Abuse of Discretion in Denying Hearing — Ability to Brief and Submit Evidence via Affidavit Satisfies Due Process

Lambright v. Ryan, 698 F.3d 808 (9th Cir. 2012): In Lambright III, we remanded to the district court with instructions to "resolve any disputed factual questions and make factual findings regarding the circumstances surrounding, and the extent and effect of, the violation" of the protective order prior to determining "whether sanctions ...
Lambright v. Ryan, 698 F.3d 808 (9th Cir. 2012): In Lambright III, we remanded to the district court with instructions to “resolve any disputed factual questions and make factual findings regarding the circumstances surrounding, and the extent and effect of,…
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Recent Posts

Inherent Power Sanctions — Extrajudicial Misconduct: Sanctions Power Extends to Conduct Intended to Sabotage Court’s Ability to Adjudicate the Case Before It, Here, By Commencing State Court Actions Seeking to Enjoin the Federal Plaintiffs from Proceeding with Their Federal Litigation — Sanctions Fee Awards: The Factors Used For Calculating A Fee Award To A Prevailing Party Do Not Govern — Under Goodyear, the Relevant Inquiry Is Whether There Is A Sufficient Causal Link Between The Sanctioned Misconduct And The Fees Awarded

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)

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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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