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

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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Certifications of Business Records as Authentic Do Not Violate Defendant’s Confrontation Rights

United States v. Anekwu, 695 F.3d 967 (9th Cir. 2012): Whether certifications of business records violate the Confrontation Clause is an issue of first impression for this Court. See, e.g., Weiland, 420 F.3d at 1076 n.13 ("[W]e need express no opinion on whether the Confrontation Clause requires the government to make the custodian of b ...
United States v. Anekwu, 695 F.3d 967 (9th Cir. 2012): Whether certifications of business records violate the Confrontation Clause is an issue of first impression for this Court. See, e.g., Weiland, 420 F.3d at 1076 n.13 (“[W]e need express no…
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Dismissal Appropriate Sanction for Deceiving the Court with False and Misleading Evidence

Brush v. Szekrenyi, 2012 U.S. App. LEXIS 23908 (9th Cir. Nov. 13, 2012): The district court did not abuse its discretion by dismissing Brush's action as a sanction after reviewing the evidence before it and concluding that Brush submitted fraudulent affidavits concerning alleged violations of his Eighth Amendment rights. See Tr ...
Brush v. Szekrenyi, 2012 U.S. App. LEXIS 23908 (9th Cir. Nov. 13, 2012): The district court did not abuse its discretion by dismissing Brush’s action as a sanction after reviewing the evidence before it and concluding that Brush submitted fraudulent…
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Rule 54(b) — Directing Entry of Final Judgment as to Some But Not All Parties or Claims — Factors and Review — Special Masters Entitled to Quasi-Judicial Immunity Even for Invoices for Services

Nystedt v. Nigro, 2012 U.S. App. LEXIS 23947 (1st Cir. Nov. 20, 2012): The claims against the Nigro defendants are narrowly focused. The complaint posits that the special master's delinquent performance of his duties prolonged the will contest and, thus, caused the value of the estate to plummet. The plaintiff frames this plaint as both ...
Nystedt v. Nigro, 2012 U.S. App. LEXIS 23947 (1st Cir. Nov. 20, 2012): The claims against the Nigro defendants are narrowly focused. The complaint posits that the special master’s delinquent performance of his duties prolonged the will contest and, thus,…
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Does Rule 60(b)(1) Permit Relief from Judgment Because of Error of Law by Court? Circuit Split — Limited Scope of 60(b)(6)

United States Bank, N.A. v. Boardman, 2012 U.S. Dist. LEXIS 167388 (N.D. Cal. Nov. 26, 2012): Rule 60(b) provides relief from judgment where one or more of the following is shown: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered before the ...
United States Bank, N.A. v. Boardman, 2012 U.S. Dist. LEXIS 167388 (N.D. Cal. Nov. 26, 2012): Rule 60(b) provides relief from judgment where one or more of the following is shown: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly…
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RICO Standing Established If Plaintiff Is Injured by One Predicate Act — Need Not Be Injured by All Alleged to Form the Pattern

Just Film, Inc. v. Merchant Servs., Inc., 2012 U.S. Dist. LEXIS 173455 (N.D. Cal. Dec. 6, 2012): Plaintiffs allege that Defendants defrauded them and the putative class members in a scheme involving credit and debit card processing services and equipment.... Plaintiffs divide the Defendants into two categories: Merchant Services Defenda ...
Just Film, Inc. v. Merchant Servs., Inc., 2012 U.S. Dist. LEXIS 173455 (N.D. Cal. Dec. 6, 2012): Plaintiffs allege that Defendants defrauded them and the putative class members in a scheme involving credit and debit card processing services and equipment….…
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Contempt Citation Against Feds for Post-BP Oil Drilling Moratorium Reversed — Stricter “Abuse of Discretion” Review for Contempt — Meaning of “Clear and Convincing” — Argument Waived by Inadequate Briefing

Hornbeck Offshore Servs., LLC v. Salazar, 2012 U.S. App. LEXIS 24355 (5th Cir. Nov. 27, 2012) (Note: 2 to 1 decision): This case arises from the 2010 Deepwater Horizon accident in the Gulf of Mexico. An explosion killed 11 workers, caused the drilling platform to sink, and resulted in a major uncontrolled release of oil. At Presidential ...
Hornbeck Offshore Servs., LLC v. Salazar, 2012 U.S. App. LEXIS 24355 (5th Cir. Nov. 27, 2012) (Note: 2 to 1 decision): This case arises from the 2010 Deepwater Horizon accident in the Gulf of Mexico. An explosion killed 11 workers,…
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Recent Posts

RICO: Indirect Injury Unrecoverable — Indirect Purchaser Rule Imported from Antitrust

Rule 11 Sanctions: (1) Improper Purpose of Harassment Reasonably Determined Based on Past Tactics (25 Lawsuits, 14 Ethics Complaints, and 150 FOIA Requests) As Well As Present Behavior — (2) Hearings Are Not Only Not Required to Satisfy Due Process But, If The Record Is Otherwise Adequate, Are Affirmatively Discouraged

RICO and Probate Exception to Federal Jurisdiction: Federal Jurisdiction over RICO Claim Not Barred by Probate Exception Even If the Federal Judgment May Be Binding on the Probate Proceedings (Or Vice Versa) — Calculating Damages Based on Diminution of Value of Estate ≠ Administration of the Estate — Doesn’t Matter If RICO Misconduct Includes Defendants’ Actions with Respect to The Estate

RICO: No Causation Where Harm Flowed Several Steps After the Fraudulent Acts — RICO Causation Same As Antitrust Causation

Sanctions vs. Automatic Stay: Imposition of Sanctions (Here, Inherent Power Sanctions) Is Subject to the Police Power Exception to the Automatic Stay in Bankruptcy

The Word “Include” May Be A Word of Limitation As Opposed to a Word of Enlargement, Depending on the Context

RICO — Pleading Conspiracy — Plaintiffs Must Plausibly Allege That the Defendants Knowingly Joined the RICO Conspiracy — Sparse Allegations of Knowledge of Fraud Due to Participation in a Commercial Transaction Insufficient to State RICO Conspiracy Claim Where Allegations Not Inconsistent with Ordinary Commercial Behavior — While Knowledge May Be Pled “Generally” under Rule 9(b), It Cannot Be Alleged Conclusorily and Must Satisfy the Twiqbal Plausibility Standard

Depositions: Improper to Object to Form to Straightforward Questions (Not Compound, Vague, Leading or Speculative) — Lack of Foundation Objection Improper in 30(b)(6) Deposition — Improper to “Educate” Witness During Breaks of 30(b)(6) Deposition Through Witness Calls to Knowledgeable Corporate Colleagues — Magistrate Judge May Impose Financial Sanctions

Spoliation/Sanctions: “A Party Does Not Spoliate Evidence When, Without Notice Of The Evidence’s Potential Relevance, It Destroys The Evidence According To Its Policy Or In The Normal Course Of Its Business” (Good Quote)

RICO: Fraud on Government Entities Causing Plaintiffs to Pay More for Inmate Calls Actionable on Bridge v. Phoenix Bond Analysis — Fact That Governments Had Separate Injuries As Part of the Scheme (from Reduced Commissions) Irrelevant — Plaintiffs’ Injuries Not Derivative of Governments’ — The Fraud on the Governments Was Not Too Distinct From Plaintiffs’ Injuries But Rather Necessary to Injure Plaintiffs — No Risk of Duplicative Recoveries and No Plaintiff Better Situated to Sue for Plaintiffs’ Injuries

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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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