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

First-Filed Rule — Required Degree of Overlap between Actions —- Is Complete Identity of Parties Required? (Circuit Split) — Exceptions: “Improper Anticipatory Actions” and “Balance of Convenience and Interest of Justice”

Wyler-Wittenberg v. MetLife Home Loans, Inc., 2012 U.S. Dist. LEXIS 150865 (E.D.N.Y. Oct. 17, 2012): The Plaintiff Patricia Wyler-Wittenberg ... commenced this putative collective and class action against MetLife Home Loans, a Division of MetLife Bank, N.A. ... and MetLife, Inc. ... seeking to recover both unpaid overtime and minimum wa ...
Wyler-Wittenberg v. MetLife Home Loans, Inc., 2012 U.S. Dist. LEXIS 150865 (E.D.N.Y. Oct. 17, 2012): The Plaintiff Patricia Wyler-Wittenberg … commenced this putative collective and class action against MetLife Home Loans, a Division of MetLife Bank, N.A. … and MetLife,…
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Rule 37(c)(1) — Factors for Determining Whether a Failure to Disclose or Make Discovery Is Harmless

Battle vs. O'Shaughnessy, 2012 U.S. Dist. LEXIS 143471 (N.D. Ill. Oct. 4, 2012): "Under Rule 37(c)(1) exclusion of non-disclosed evidence is automatic and mandatory ... unless non-disclosure was justified or harmless." Tribble v. Evangelides, 670 F.3d 753, 760 (7th Cir. 2012) (internal quotations marks omitted). The Seventh Circuit has ...
Battle vs. O’Shaughnessy, 2012 U.S. Dist. LEXIS 143471 (N.D. Ill. Oct. 4, 2012): “Under Rule 37(c)(1) exclusion of non-disclosed evidence is automatic and mandatory … unless non-disclosure was justified or harmless.” Tribble v. Evangelides, 670 F.3d 753, 760 (7th Cir.…
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No Sanctions Imposed for Plaintiff’s Filing and Prosecuting Suit in Face of Potentially Meritorious Affirmative Defense of Res Judicata

C.H. Robinson Worldwide, Inc. v. Lobrano, 2012 U.S. App. LEXIS 20592 (8th Cir. Oct. 3, 2012): Lobrano unsuccessfully moved for sanctions and attorney's fees under Federal Rule of Civil Procedure 11 and 28 U.S.C. § 1927. On appeal, Lobrano maintains that sanctions and attorney's fees were appropriate in this case because C.H. Robinson i ...
C.H. Robinson Worldwide, Inc. v. Lobrano, 2012 U.S. App. LEXIS 20592 (8th Cir. Oct. 3, 2012): Lobrano unsuccessfully moved for sanctions and attorney’s fees under Federal Rule of Civil Procedure 11 and 28 U.S.C. § 1927. On appeal, Lobrano maintains…
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Emails Offered on State of Mind ≠ Hearsay — in Employment Discrimination Case, Complaints Emailed by Employee’s Supervisor to Her Superior Admissible to Show Recipient’s Belief, in Discharging Employee, That Employee Had Acted Badly

Dickerson v. Holsten Mgmt. Corp., 2012 U.S. Dist. LEXIS 139425 (N.D. Ill. Sept. 27, 2012): Ms. Dickerson first takes issue with three emails written by one of Ms. Dickerson's former supervisors, Carol Redman. Ms. Dickerson argues that these email messages are cited by Holsten for the truth of Ms. Redman's statements making them inadmiss ...
Dickerson v. Holsten Mgmt. Corp., 2012 U.S. Dist. LEXIS 139425 (N.D. Ill. Sept. 27, 2012): Ms. Dickerson first takes issue with three emails written by one of Ms. Dickerson’s former supervisors, Carol Redman. Ms. Dickerson argues that these email messages…
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Arbitration / Sanctions — Claim Party Was Fraudulently Induced to Enter Contract, as Opposed to Just Arbitration Clause, Is for Arbitrator to Decide — Even If Rule 11 Violated, Sanctions Are Discretionary

Ipcon Collections LLC v. Costco Wholesale Corp., 2012 U.S. App. LEXIS 20944 (2d Cir. Oct. 9, 2012): This appeal arises out of a contract dispute between Costco and ES Electrosales Leadsinger, Co., Ltd. ("Leadsinger"), a company that sold, inter alia, karaoke systems. Between October 2005 and September 2008, Leadsinger and Costco entered ...
Ipcon Collections LLC v. Costco Wholesale Corp., 2012 U.S. App. LEXIS 20944 (2d Cir. Oct. 9, 2012): This appeal arises out of a contract dispute between Costco and ES Electrosales Leadsinger, Co., Ltd. (“Leadsinger”), a company that sold, inter alia,…
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Arbitration — Elements for Proving Fraud in Procuring Award — Error of Expert Witness Insufficient — Error of Fact or Law by Arbitrators ≠ Reversible Act of Exceeding Their Powers

Morgan Keegan & Co. v. Garrett, 2012 U.S. App. LEXIS 22057 (5th Cir. Oct. 23, 2012): A group of eighteen investors (collectively, "Appellants") alleged that Defendant-Appellee Morgan Keegan & Company, Inc. ("Morgan Keegan") engaged in a fraudulent scheme that induced Appellants to invest substantially in four highly risky mutual funds t ...
Morgan Keegan & Co. v. Garrett, 2012 U.S. App. LEXIS 22057 (5th Cir. Oct. 23, 2012): A group of eighteen investors (collectively, “Appellants”) alleged that Defendant-Appellee Morgan Keegan & Company, Inc. (“Morgan Keegan”) engaged in a fraudulent scheme that induced…
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Class Actions — Circuit Split as to Whether Standing Should Be Addressed Prior to Class Certification

Hunnicutt v. Zeneca, Inc., 2012 U.S. Dist. LEXIS 133634 (N.D. Okla. Sept. 19, 2012): The Tenth Circuit has indicated that courts should generally address standing prior to class certification. See Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1159 (10th Cir. 2011) ("Prior to class certification, the named plaintiffs' failure t ...
Hunnicutt v. Zeneca, Inc., 2012 U.S. Dist. LEXIS 133634 (N.D. Okla. Sept. 19, 2012): The Tenth Circuit has indicated that courts should generally address standing prior to class certification. See Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1159…
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Courts of Appeal Are Loath to Create a Circuit Split — Policy Reasons behind Avoidance

Two Cases: 1. United States v. Games-Perez, 2012 U.S. App. LEXIS 19874 (10th Cir. Sept. 17, 2012): [T]he circuits have historically been loath to create a split where none exists. See, e.g., Throneberry v. McGehee Desha Cnty. Hosp., 403 F.3d 972, 979 (8th Cir. 2005) ("[T]he Tenth Circuit's decision . . . is th ...
Two Cases: 1. United States v. Games-Perez, 2012 U.S. App. LEXIS 19874 (10th Cir. Sept. 17, 2012): [T]he circuits have historically been loath to create a split where none exists. See, e.g., Throneberry v. McGehee Desha Cnty. Hosp., 403 F.3d…
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No First Amendment Defense to Sanctions — Here, Inherent Power Sanctions

In re Gleason, 2012 U.S. App. LEXIS 21248 (11th Cir. Oct. 15, 2012): Gleason contends his sixty-day suspension from practice violates his First Amendment right to free speech. He argues that the bankruptcy court should not have disciplined him based on the "tone" of his submissions, which he describes as "truthful responses to a strin ...
In re Gleason, 2012 U.S. App. LEXIS 21248 (11th Cir. Oct. 15, 2012): Gleason contends his sixty-day suspension from practice violates his First Amendment right to free speech. He argues that the bankruptcy court should not have disciplined him based…
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Securities — Tipper and Tippee Scienter under Classical and Misappropriation Theories of Insider Trading — Scienter Requirement As Applied to Tippee Chains

Securities and Exchange Commission v. Obus, 693 F.3d 276 (2d Cir. 2012): A. The [Classical vs. the] Misappropriation Theory of Insider Trading Insider trading--unlawful trading in securities based on material non-public information--is well established as a violation of section 10(b) of the Securities Exchange Act of 19 ...
Securities and Exchange Commission v. Obus, 693 F.3d 276 (2d Cir. 2012): A. The [Classical vs. the] Misappropriation Theory of Insider Trading Insider trading–unlawful trading in securities based on material non-public information–is well established as a violation of section 10(b)…
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Recent Posts

RICO Causation: Parents of Children with Disabilities Deprived In-Person Education and Services during the Pandemic Were Not Causally Injured by Teachers’ False Assurances to Federal Authorities That IDEA-Complaint Policies Were in Place, Which Caused Funds to Issue But Not to the Benefit of the Disabled Children — Damages Too Indirect — Proper Plaintiff Is U.S. Government — Private Injunctive Relief Under RICO Uncertain in Third Circuit

Sanctions: Rule 37(b)(2) Dismissal — Sixth Circuit Factors

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

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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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