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 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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Damages Opinion Based on “Nascent Company’s” Business Plan Excluded Where Expert Didn’t Know Who Prepared Plan or Its Assumptions — That Plan Was Admitted at Trial Does Not Preclude Exclusion of Opinion under Rule 702, Even If Rule 703 Satisfiied

ZF Meritor, LLC v. Eaton Corp., 2012 U.S. App. LEXIS 20342 (3d Cir. Sept. 28, 2012): 2. Expert Testimony on Damages In their cross-appeal, Plaintiffs argue that the District Court erred in excluding DeRamus's testimony on the issue of damages. The core of DeRamus's damages analysis was one page (titled "Five Year Pr ...
ZF Meritor, LLC v. Eaton Corp., 2012 U.S. App. LEXIS 20342 (3d Cir. Sept. 28, 2012): 2. Expert Testimony on Damages In their cross-appeal, Plaintiffs argue that the District Court erred in excluding DeRamus’s testimony on the issue of damages.…
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Spoliation — Adverse Inference Requires Bad Faith But Not Malice in Eleventh Circuit — Negligence, Even Recklessness, Is Insufficient

Silver v. Countrywide Home Loans, Inc., 2012 U.S. App. LEXIS 11620 (11th Cir. June 8, 2012): Silver contends that the district court abused its discretion by not imposing sanctions and by not finding an inference of spoliation against Countrywide for failing to turn over emails relevant to the case and for failing to have a proper liti ...
Silver v. Countrywide Home Loans, Inc., 2012 U.S. App. LEXIS 11620 (11th Cir. June 8, 2012): Silver contends that the district court abused its discretion by not imposing sanctions and by not finding an inference of spoliation against Countrywide for…
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Unsolicited Email Sent After Purchase ≠ Notice of Duty to Arbitrate — Shrinkwrap vs. Browsewrap vs. Clickwrap Contracts — Summary Judgment Standard on Motion to Compel Arbitration; Choice of Law Clause Inapt on That Motion — Good Quotes

Schnabel v. Trileagiant Corp., 2012 U.S. App. LEXIS 18875 (2d Cir. Sept. 7, 2012): The question presented to us on this appeal is whether the plaintiffs are bound to arbitrate their dispute with the defendants as a consequence of an arbitration provision that the defendants assert was part of a contract between the parties. Neither of t ...
Schnabel v. Trileagiant Corp., 2012 U.S. App. LEXIS 18875 (2d Cir. Sept. 7, 2012): The question presented to us on this appeal is whether the plaintiffs are bound to arbitrate their dispute with the defendants as a consequence of an…
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May a Party Raise a New Legal Argument before the District Judge in Objecting to a Report and Recommendation of a Magistrate Judge? — Three-Way Circuit Split — Second Circuit Standard for Considering New Arguments on Motion for Reconsideration

Amadasu v. Ngati, 2012 U.S. Dist. LEXIS 129283 (E.D.N.Y. Sept. 9, 2012): Whether a party may raise a new legal argument, or present an entire previously unasserted cross-motion or opposition, for the first time in objections to an R&R has not yet been decided in this Circuit. See Wells Fargo Bank N.A. v. Sinnot, 2010 WL 297 ...
Amadasu v. Ngati, 2012 U.S. Dist. LEXIS 129283 (E.D.N.Y. Sept. 9, 2012): Whether a party may raise a new legal argument, or present an entire previously unasserted cross-motion or opposition, for the first time in objections to an R&R has…
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On Remand After Appeal, District Court Must Implement “Both the Letter and the Spirit of the Mandate” — Good Quotes

EEOC v. Kronos Inc., 2012 U.S. App. LEXIS 19320 (3d Cir. Sept. 14, 2012): "It is axiomatic that on remand for further proceedings after [a] decision by an appellate court, the trial court must proceed in accordance with the mandate and the law of the case as established on appeal." Bankers Trust Co. v. Bethlehem Steel Corp., 761 F.2d 94 ...
EEOC v. Kronos Inc., 2012 U.S. App. LEXIS 19320 (3d Cir. Sept. 14, 2012): “It is axiomatic that on remand for further proceedings after [a] decision by an appellate court, the trial court must proceed in accordance with the mandate…
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Arbitration — Current State of the Circuit Split Concerning the Viability of Manifest Disregard as Ground for Vacatur

Bangor Gas Company, LLC v. H.Q. Energy Servs., 2012 U.S. App. LEXIS 20218 (1st Cir. Sept. 26, 2012): [T]his court in the past recognized a common law ground for vacating arbitration awards that are in "manifest disregard of the law," McCarthy v. Citigroup Global Mkts. Inc., 463 F.3d 87, 91 (1st Cir. 2006) (quoting Wonderland Greyhound P ...
Bangor Gas Company, LLC v. H.Q. Energy Servs., 2012 U.S. App. LEXIS 20218 (1st Cir. Sept. 26, 2012): [T]his court in the past recognized a common law ground for vacating arbitration awards that are in “manifest disregard of the law,”…
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Statutory Construction: “There Is Currently a Circuit Split over Whether the Existence of a Circuit Split Is Evidence of Statutory Ambiguity”

Cuellar de Osorio v. Napolitano, 2012 U.S. App. LEXIS 20177 (9th Cir. Sept. 26, 2012) (M. Smith, J., dissenting): Footnote 1. I do not state or imply that a circuit split is evidence that a statute is ambiguous, although the Supreme Court has stated that "contrasting positions of the respective parties and their amici" may demonst ...
Cuellar de Osorio v. Napolitano, 2012 U.S. App. LEXIS 20177 (9th Cir. Sept. 26, 2012) (M. Smith, J., dissenting): Footnote 1. I do not state or imply that a circuit split is evidence that a statute is ambiguous, although the…
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Sanctions — No Appellate Jurisdiction to Reverse Erroneous Award Where Notice of Appeal Filed Only after Opinion Granting Sanctions (Nonfinal) But Not after Fees Quantified and Awarded (Final) — FRAP 4(a)(2), 4(a)(4)(B)(i) Do Not Save Appeal

Feldman v. Olin Corp., 2012 U.S. App. LEXIS 18106 (7th Cior. Aug. 27, 2012): We are sympathetic to Feldman's contention that the district court abused its discretion by imposing sanctions. Global Brass admits that it never gave Feldman advance notice as required under Rule 11(c)(1). Notice plays a central part in the Rule 11 process, as ...
Feldman v. Olin Corp., 2012 U.S. App. LEXIS 18106 (7th Cior. Aug. 27, 2012): We are sympathetic to Feldman’s contention that the district court abused its discretion by imposing sanctions. Global Brass admits that it never gave Feldman advance notice…
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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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