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

Sanctions — Due Process Notice Requirement Unsatisfied Where Court Relied on Warnings and Sanctions Imposed in Earlier Case Because Earlier Judge Did Not Deal with the Specific Conduct in the Current Case

Truong v. Nguyen, 2012 U.S. App. LEXIS 23827 (2d Cir. Nov. 20, 2012): "Due process requires that courts provide notice and opportunity to be heard before imposing any kind of sanctions." Schlaifer Nance & Co. v. Estate of Warhol, 194 F.3d 323, 334 (2d Cir. 1999) (citation and internal quotation marks omitted). Specifically, ...
Truong v. Nguyen, 2012 U.S. App. LEXIS 23827 (2d Cir. Nov. 20, 2012): “Due process requires that courts provide notice and opportunity to be heard before imposing any kind of sanctions.” Schlaifer Nance & Co. v. Estate of Warhol, 194…
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Case Removable Because It “Relates to” Arbitration Is Not Necessarily “Referable” to Arbitration — Binding Non-Signatories to Arbitration — Significance of Whether Signatory or Non-Signatory Moving to Compel

Reid v. Doe Run Resources Corp., 2012 U.S. App. LEXIS 23281 (8th Cir. Nov. 13, 2012) (note: The facts of this case are excerpted in our November 21, 2012 posting) Doe Run argues that the district court erred by denying its motion for a mandatory stay pending the outcome of the arbitration. A district court's denial of a motion to ...
Reid v. Doe Run Resources Corp., 2012 U.S. App. LEXIS 23281 (8th Cir. Nov. 13, 2012) (note: The facts of this case are excerpted in our November 21, 2012 posting) Doe Run argues that the district court erred by denying…
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Removal: New York Convention Permits Removal If Case Is “Related to” Arbitration Even If Dispute Is Not Itself Arbitrable — Issue Is Whether Arbitration “Could Conceivably Affect the Outcome of the Case” — Need Not Have Preclusive Effect

Reid v. Doe Run Resources Corp., 2012 U.S. App. LEXIS 23281 (8th Cir. Nov. 13, 2012): Doe Run Resources and its affiliates operated a smelting facility in Peru. The facility's pollution allegedly injured the plaintiffs. A Doe Run associate, Renco, is currently arbitrating related claims with Peru. The defendants sought both a mandatory ...
Reid v. Doe Run Resources Corp., 2012 U.S. App. LEXIS 23281 (8th Cir. Nov. 13, 2012): Doe Run Resources and its affiliates operated a smelting facility in Peru. The facility’s pollution allegedly injured the plaintiffs. A Doe Run associate, Renco,…
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Mandamus as Tool to Challenge Denial of Protection for Confidential Data — Bar Against One Lawyer’s Access Because He/She Is “Competitive Decisionmaker” for Client Not Imputed to Law Firm — Model Rules’ Imputation Rejected

In re Dell Inc., 2012 U.S. App. LEXIS 22155 (Fed. Cir. Oct. 23, 2012): This is an unusual case involving whether a bar precluding an attorney from accessing confidential information on the ground that he is a "competitive decisionmaker" must be imputed to other members of his law firm. Petitioner Dell, Inc., defendant in this p ...
In re Dell Inc., 2012 U.S. App. LEXIS 22155 (Fed. Cir. Oct. 23, 2012): This is an unusual case involving whether a bar precluding an attorney from accessing confidential information on the ground that he is a “competitive decisionmaker” must…
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Experts — District Court’s Failure to Make Gateway Determinations of Relevance and Reliability Mandates Reversal — “The Decision To Admit Or Exclude Expert Testimony Is Often The Difference Between Winning And Losing A Case” (Good Quotes)

Barabin v. AstenJohnson, Inc., 2012 U.S. App. LEXIS 23528 (9th Cir. Nov. 16, 2012): Compliance with Rule 702 is gauged by the district court's assessment of the reliability of the proffered expert testimony. See Daubert, 509 U.S. at 589. Specifically, the district court is charged with determining whether the proffered expert testimony ...
Barabin v. AstenJohnson, Inc., 2012 U.S. App. LEXIS 23528 (9th Cir. Nov. 16, 2012): Compliance with Rule 702 is gauged by the district court’s assessment of the reliability of the proffered expert testimony. See Daubert, 509 U.S. at 589. Specifically,…
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Burden-Shifting Procedure for Determining Whether 26(a)(2)(B) Report or 26(a)(2)(C) Disclosure Required

Herman v. Hartford Cas. Ins. Co., 2012 U.S. Dist. LEXIS 163345 (D. Colo. Nov. 15, 2012): This Court has traditionally employed a burden-shifting procedure for determining whether the requirements of Rule 26(a)(2) have been satisfied . Morris v. Wells Fargo Bank, N.A., No. 09-cv-02160-CMA-KMT, 2010 WL 2501078, at *1 (D. Colo. June 17, 20 ...
Herman v. Hartford Cas. Ins. Co., 2012 U.S. Dist. LEXIS 163345 (D. Colo. Nov. 15, 2012): This Court has traditionally employed a burden-shifting procedure for determining whether the requirements of Rule 26(a)(2) have been satisfied . Morris v. Wells Fargo…
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Appellate Jurisdiction and Review Standards on Appeal of Motion to Compel Arbitration

Berthel Fisher & Co. Fin. Servs., Inc. v. Larmon, 695 F.3d 749 (8th Cir. 2012): "We have jurisdiction to review the denial of a motion to compel arbitration as an interlocutory appeal within the scope of 28 U.S.C. § 1292(a)(1)." McNamara v. Yellow Transp., Inc., 570 F.3d 950, 954 (8th Cir. 2009). "We review de novo the denial of a mot ...
Berthel Fisher & Co. Fin. Servs., Inc. v. Larmon, 695 F.3d 749 (8th Cir. 2012): “We have jurisdiction to review the denial of a motion to compel arbitration as an interlocutory appeal within the scope of 28 U.S.C. § 1292(a)(1).”…
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Parties Planning to Give Expert Testimony Must File Rule 26(a)(2)(C) Disclosure — Lack of Candor in Retained Expert’s Report Is Grounds for Exclusion under Daubert and Kumho

Martinez v. Garcia, 2012 U.S. Dist. LEXIS 158220 (N.D. Ill. Nov. 5, 2012) :Martinez's Dkt. No. 158 seeks to bar the two opinion witnesses designated by the "Medical Defendants," Dr. Parthasarathai Ghosh and LaTonya Williams ("Williams"). Those proposed witnesses comprise Dr. Bruce Doblin and the Medical Defendants themselves, and the g ...
Martinez v. Garcia, 2012 U.S. Dist. LEXIS 158220 (N.D. Ill. Nov. 5, 2012) :Martinez’s Dkt. No. 158 seeks to bar the two opinion witnesses designated by the “Medical Defendants,” Dr. Parthasarathai Ghosh and LaTonya Williams (“Williams”). Those proposed witnesses comprise…
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The Danger of Taking Expert Depositions — Opening the Door to New Opinions — Expert Report’s Purported Reservation of the Right to Add or Amend Opinions Based on New Information Rejected

Goesel v. Boley Int’l (HK) Ltd,, 2012 U.S. Dist. LEXIS 152524 (N.D. Ill. Oct. 24, 2012): This action seeks to recover damages sustained by then five year old Cole Goesel ("Cole") when a plastic toy sword that he was playing with -- part of a toy product known as the "Boley Cosmic Robot" -- shattered and a piece of that sword pierced C ...
Goesel v. Boley Int’l (HK) Ltd,, 2012 U.S. Dist. LEXIS 152524 (N.D. Ill. Oct. 24, 2012): This action seeks to recover damages sustained by then five year old Cole Goesel (“Cole”) when a plastic toy sword that he was playing…
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Prior Complaint for Same Conduct Inadmissible under Rule 404(b) Absent Prior Admission of Liability or Evidence the Acts Alleged Were Committed — Irrelevant on Intent or Awareness Conduct Was Unlawful

United States v. Bailey, 696 F.3d 794 (9th Cir 2012): Bailey was the President, Chief Executive Officer, and Chairman of the Board of Directors of Gateway, a small, public company involved in selling health and dietary supplements. In 2002, Bailey met Richard Owens, another businessman, and the two began doing business together. The nat ...
United States v. Bailey, 696 F.3d 794 (9th Cir 2012): Bailey was the President, Chief Executive Officer, and Chairman of the Board of Directors of Gateway, a small, public company involved in selling health and dietary supplements. In 2002, Bailey…
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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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