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

Factors Militating Against Retroactive Application of Judicial Decision

Folks v. State Farm Mut. Auto. Ins. Co., 2012 U.S. Dist. LEXIS 128960 (D. Colo. Sept. 11, 2012): Footnote 3. *** First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, see e.g., Hanover Shoe, ...
Folks v. State Farm Mut. Auto. Ins. Co., 2012 U.S. Dist. LEXIS 128960 (D. Colo. Sept. 11, 2012): Footnote 3. *** First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past…
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Court Award of Attorneys’ Fees in Class Action Bars Subsequent Malpractice Action — Injunction Upheld under Anti-Injunction Act’s Relitigation Exception — “In Aid of Jurisdiction” Exception Generally Limited to In Rem Actions

Wyly v. Weiss, 2012 U.S. App. LEXIS 21032 (2d Cir. Oct. 10, 2012): In this action under the All Writs Act, 28 U.S.C. § 1651, and the Anti-Injunction Act, 28 U.S.C. § 2283, we consider whether, following the approval of a federal class action settlement, the District Court properly enjoined a state court action for legal malpractice di ...
Wyly v. Weiss, 2012 U.S. App. LEXIS 21032 (2d Cir. Oct. 10, 2012): In this action under the All Writs Act, 28 U.S.C. § 1651, and the Anti-Injunction Act, 28 U.S.C. § 2283, we consider whether, following the approval of…
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Legal Expert’s “Mere Speculation about a Loss Resulting from an Attorney’s Alleged Omission Is Insufficient to Sustain a Prima Facie Case of Legal Malpractice”

Barbieri v. Fishoff, 98 A.D.3d 703 (2d Dept. 2012): The plaintiff hired the defendant attorney on the eve of trial to represent him in an adversary proceeding in bankruptcy court, in which the plaintiff contended that his signature on a certain real estate document was forged. At the time he hired the defendant, the plaintiff had al ...
Barbieri v. Fishoff, 98 A.D.3d 703 (2d Dept. 2012): The plaintiff hired the defendant attorney on the eve of trial to represent him in an adversary proceeding in bankruptcy court, in which the plaintiff contended that his signature on a…
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Non-Expert Historian Testimony — Non-Expert Head of Organization Permitted to Testify as to Centuries-Old History of Organization — Daubert in Bench Trials: Limited But Not Non-Existent Role — Good Quotes

Sovereign Military Hospitaller Order vs. Florida Priory of the nights Hospitallers, 2012 U.S. App. LEXIS 19104 (11th Cir. Sept. 11, 2012): Plaintiff-Appellant Sovereign Military Hospitaller Order of Saint John of Jerusalem of Rhodes and of Malta (Plaintiff Order) is a religious order of the Roman Catholic Church that undertakes charitab ...
Sovereign Military Hospitaller Order vs. Florida Priory of the nights Hospitallers, 2012 U.S. App. LEXIS 19104 (11th Cir. Sept. 11, 2012): Plaintiff-Appellant Sovereign Military Hospitaller Order of Saint John of Jerusalem of Rhodes and of Malta (Plaintiff Order) is a…
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RICO — Statute of Limitations Accrues When Plaintiff Is on Inquiry Notice of Its Injury — Merck Limited to Securities Cases — Presumption Supreme Court Does Not Overrule Itself Sub Silentio — Elements of Fraudulent Concealment

Koch v. Christie’s Int’l PLC, 2012 U.S. App. LEXIS 20758 (2d Cir. Oct. 4, 2012): For wine, timing is critical. The same is true for causes of action.*** The essence of Koch's allegations against Christie's is that Christie's promoted as authentic a cache of wine that was ostensibly bottled in the late eighteenth century ...
Koch v. Christie’s Int’l PLC, 2012 U.S. App. LEXIS 20758 (2d Cir. Oct. 4, 2012): For wine, timing is critical. The same is true for causes of action.*** The essence of Koch’s allegations against Christie’s is that Christie’s promoted as…
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Should Motion to Dismiss Based on Arbitration Clause Be Filed under Rule 12(b)(6) or 12(b)(3)? Caselaw Split — Answer Determines Materials Court Can Consider on Motion

Washington v. Roosen, Varchetti & Oliver, PPLC, 2012 U.S. Dist. LEXIS 141048 (W.D. Mich. Sept. 17, 2012): This matter comes before the Court on two motions to dismiss. (ECF Nos. 5 and 6.) Defendant Web Equity ("Web Equity") filed the first motion to dismiss, along with a supporting brief. (ECF No. 5.) Defendant Roosen, Varchetti & Olive ...
Washington v. Roosen, Varchetti & Oliver, PPLC, 2012 U.S. Dist. LEXIS 141048 (W.D. Mich. Sept. 17, 2012): This matter comes before the Court on two motions to dismiss. (ECF Nos. 5 and 6.) Defendant Web Equity (“Web Equity”) filed the…
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Coverage Action Involving Lloyd’s May Form CAFA Class Action — Prior Judicial Reticence Overridden by CAFA — Defect in Subject Matter Jurisdiction, when Cured, Relates Back to Beginning of Action — All Prior Rulings Restored to Vitality

Certain Underwriters at Lloyd's of London v. Ill. Nat’l Ins. Co., 2012 U.S. Dist. LEXIS 141798 (S.D.N.Y. Sept. 24, 2012) (Preska, Ch. J.): Certain Underwriters at Lloyd's of London ("Underwriters"), Aspen Insurance UK Ltd. ("Aspen"), and Arch Insurance Company (Europe) Ltd. ("Arch-Europe") (collectively, "Plaintiffs") commenced this d ...
Certain Underwriters at Lloyd’s of London v. Ill. Nat’l Ins. Co., 2012 U.S. Dist. LEXIS 141798 (S.D.N.Y. Sept. 24, 2012) (Preska, Ch. J.): Certain Underwriters at Lloyd’s of London (“Underwriters”), Aspen Insurance UK Ltd. (“Aspen”), and Arch Insurance Company (Europe)…
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Summary Judgment — Failure to Document Conclusory Denial of Statement of Uncontested Fact = Admission — Causation in Legal Malpractice Action, and the Role of Expert Testimony

Joseph DelGreco & Co. v. DLA Piper LLP, 2012 U.S. Dist. LEXIS 142017 (S.D.N.Y. Oct. 1, 2012) (Engelmayer, J.): Defendant DLA Piper LLP ("DLA"), a law firm, moves for summary judgment against the Complaint of plaintiffs Joseph DelGreco and DelGreco & Co. (collectively, "DelGreco" or "plaintiffs"), which alleges that DLA committed various ...
Joseph DelGreco & Co. v. DLA Piper LLP, 2012 U.S. Dist. LEXIS 142017 (S.D.N.Y. Oct. 1, 2012) (Engelmayer, J.): Defendant DLA Piper LLP (“DLA”), a law firm, moves for summary judgment against the Complaint of plaintiffs Joseph DelGreco and DelGreco…
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Sanctions for Procedural Misconduct in the Course of a Federal Action Is Governed by Federal Sanctions Law — Failure to Abide by Safe Harbor Precludes Rule 11 Sanctions

Oliva v. Nat’l City Mortgage Co., 2012 U.S. App. LEXIS 16129 (9th Cir. Aug 3, 2012): The district court did not abuse its discretion by declining to award defendants attorney's fees. Defendants were not entitled to attorney's fees under Nev. Rev. Stat. §§ 7.085 and 18.010 because plaintiffs' alleged misconduct was procedural in n ...
Oliva v. Nat’l City Mortgage Co., 2012 U.S. App. LEXIS 16129 (9th Cir. Aug 3, 2012): The district court did not abuse its discretion by declining to award defendants attorney’s fees. Defendants were not entitled to attorney’s fees under Nev.…
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Rule 11 and Tax Protestors (or Others Filing Suit in the Face of Unambiguous Law) — “Plaintiffs May Disagree with the State of the Law, But Rule 11 Prohibits Them from Filing Fictional Claims to Protest It”

United States v. Vallone, 2012 U.S. App. LEXIS 20308 (7th Cir. Sept. 28, 2012): At the conclusion of an eleven week trial, a jury convicted defendants *** of conspiring to defraud the United States by impeding and impairing the functions of the Internal Revenue Service ("IRS") and to commit offenses against the United States, along wit ...
United States v. Vallone, 2012 U.S. App. LEXIS 20308 (7th Cir. Sept. 28, 2012): At the conclusion of an eleven week trial, a jury convicted defendants *** of conspiring to defraud the United States by impeding and impairing the functions…
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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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