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

Lingering Doubt — and Circuit Split — Concerning Continued Vitality of Sliding Scale Standard for Preliminary Injunctive Relief

Holiday CVS, LLC v. Holder, 839 F. Supp. 2d 145 (D.D.C. 2012): Footnote 8. Several members of the Circuit have read the Supreme Court's decision in Winter to cast doubt on the continued validity of the sliding scale approach. See Davis, 571 F.3d at 1296 (Kavanaugh, J, joined by Henderson, J., concurring) ("[U]nder the Supr ...
Holiday CVS, LLC v. Holder, 839 F. Supp. 2d 145 (D.D.C. 2012): Footnote 8. Several members of the Circuit have read the Supreme Court’s decision in Winter to cast doubt on the continued validity of the sliding scale approach. See…
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Barebones 26(a)(2)(C) Disclosure Adequate Where Supplemented by Expert’s Testing Results and His 30(b)(6) Deposition

Ira Green, Inc. v. J.L. Darling Corp., 2012 U.S. Dist. LEXIS 113746 (W.D. Wash. Aug. 13, 2012): This matter comes before the court on Plaintiff Ira Green, Inc.'s Motion to Exclude Expert Witness Disclosures and Report and to Preclude Testimony. *** On July 9, 2012, Green deposed Todd Silver, co-owner of Darling, who had been ...
Ira Green, Inc. v. J.L. Darling Corp., 2012 U.S. Dist. LEXIS 113746 (W.D. Wash. Aug. 13, 2012): This matter comes before the court on Plaintiff Ira Green, Inc.’s Motion to Exclude Expert Witness Disclosures and Report and to Preclude Testimony.…
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Relationship between Attorney Ethics Rules and Malpractice Liability — Non-Client Has No Cause of Action under Rule 4.3, Which Creates No Duty toward Non-Clients

Rosenbaum v. White, 2012 U.S. App. LEXIS 17184 (7th Cir. Aug. 16, 2012): [T]he plaintiffs also argue that, even if no attorney-client relationship existed, the defendants still owed them a duty under the Indiana Rules of Professional Conduct. The plaintiffs cite a number of rules that the defendants allegedly violated, most especially R ...
Rosenbaum v. White, 2012 U.S. App. LEXIS 17184 (7th Cir. Aug. 16, 2012): [T]he plaintiffs also argue that, even if no attorney-client relationship existed, the defendants still owed them a duty under the Indiana Rules of Professional Conduct. The plaintiffs…
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Inherent Power Sanction of Counsel for Bad Faith Defense of Motion Not Immediately Appealable — Rule 11 Reprimand Threatening Reputational Damage Distinguished — Rule 54(b) Jurisdiction Unachieved by Mere Recital of Standard

Square, Inc. v. REM Holdings 3, LLC, 2012 U.S. App. LEXIS 17257 (Fed. Cir. Aug. 14, 2012): Square brought the underlying suit in the United States District Court for the Eastern District of Missouri against REM Holdings 3, LLC (REM), seeking a correction of inventorship with regard to U.S. Patent No. 7,810,729 (the '729 Patent).
Square, Inc. v. REM Holdings 3, LLC, 2012 U.S. App. LEXIS 17257 (Fed. Cir. Aug. 14, 2012): Square brought the underlying suit in the United States District Court for the Eastern District of Missouri against REM Holdings 3, LLC (REM),…
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RICO — Neither Attorneys’ Fees Nor Cost of Surgeries Nor Injury to Intangible Interest in Personal Medical Information Constitute Concrete or Quantifiable Injury to Business or Property within § 1964(d) — Declaratory Relief Discretionary

Dickerson v. TLC The Laser Eye Center Institute, Inc., 2012 U.S. App. LEXIS 17395 (4th Cir. Aug. 15, 2012); Charles Benjamin Dickerson appeals the district court's grant of motions to dismiss the first amended complaint ("FAC") filed by Appellees TLC Lasik Centers, TLC Clinical Directors, TLC LASIK Surgeons, and TLC Management (collecti ...
Dickerson v. TLC The Laser Eye Center Institute, Inc., 2012 U.S. App. LEXIS 17395 (4th Cir. Aug. 15, 2012); Charles Benjamin Dickerson appeals the district court’s grant of motions to dismiss the first amended complaint (“FAC”) filed by Appellees TLC…
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While Motion to Compel Arbitration Should Reference §3 or §4 of the FAA, Absence Does Not Preclude Appellate Jurisdiction under § 16 — Party Does Not Default on Right to Arbitrate by Delay and Participation, Alone — Actual Prejudice Essential

Wheeling Hosp., Inc. v. The Health Plan of the Upper Ohio Valley, Inc., 683 F.3d 577 (4th Cir. 2012): Appellees Wheeling Hospital and Belmont Hospital***, along with other medical providers, commenced this putative class action in West Virginia state court on May 19, 2010, against the Ohio Valley Health Services and Education Corporation ...
Wheeling Hosp., Inc. v. The Health Plan of the Upper Ohio Valley, Inc., 683 F.3d 577 (4th Cir. 2012): Appellees Wheeling Hospital and Belmont Hospital***, along with other medical providers, commenced this putative class action in West Virginia state court…
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Appealability — Failure to Appeal Sanction in Name of Counsel Does Not Deprive Circuit of Jurisdiction Where Body of Notice Recites That Sanction Imposed on Counsel Is Appealed

Guckenberger v. Prudential Ins. Co. of Am., 2012 U.S. App. LEXIS 13881 (2d Cir. July 9, 2012): [W]e conclude that we have jurisdiction over the claim on appeal that the district court improperly sanctioned Guckenberger's counsel pursuant to Federal Rule of Civil Procedure Rule 11. "Where an award of sanctions runs only against the attor ...
Guckenberger v. Prudential Ins. Co. of Am., 2012 U.S. App. LEXIS 13881 (2d Cir. July 9, 2012): [W]e conclude that we have jurisdiction over the claim on appeal that the district court improperly sanctioned Guckenberger’s counsel pursuant to Federal Rule…
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Documents Beyond Complaint That May Be Considered on 12(b)(6) Motion to Dismiss and for What Purpose — Utility of Affidavit or Declaration

Biro v. Condé Nast, 2012 U.S. Dist. LEXIS 112466 (S.D.N.Y. Aug. 9, 2012): When determining the sufficiency of a claim under Rule 12(b)(6), the court is normally required to consider only the allegations on the face of the pleading. "Documents that are attached to the complaint or incorporated in it by reference are deemed part of t ...
Biro v. Condé Nast, 2012 U.S. Dist. LEXIS 112466 (S.D.N.Y. Aug. 9, 2012): When determining the sufficiency of a claim under Rule 12(b)(6), the court is normally required to consider only the allegations on the face of the pleading. “Documents…
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RICO — § 1962(d) Requires Conspiracy to Violate RICO, Not Merely Conspiracy to Commit Predicate Acts

Zavala v. Wal-Mart Stores, Inc., 2012 U.S. App. LEXIS 16610 (3d Cir. Aug. 9, 2012): This suit was brought in the U.S. District Court for the District of New Jersey by Wal-Mart cleaning crew members who are seeking compensation for unpaid overtime and certification of a collective action under the Fair Labor Standards Act (FLSA), civil d ...
Zavala v. Wal-Mart Stores, Inc., 2012 U.S. App. LEXIS 16610 (3d Cir. Aug. 9, 2012): This suit was brought in the U.S. District Court for the District of New Jersey by Wal-Mart cleaning crew members who are seeking compensation for…
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Minimal 26(a)(2)(C) Disclosure Upheld Because Complaint Sufficiently Elucidated Likely Scope of Testimony

Gilster v. Primebank, 2012 U.S. Dist. LEXIS 114447 (N.D. Iowa Aug. 14, 2012): Footnote 8. The defendants ... maintain that I erred when I permitted Elizabeth Pratt to offer expert opinion testimony on whether Gilster would experience anxiety and stress in the future because Gilster failed to disclose Pratt's expert opinion on this s ...
Gilster v. Primebank, 2012 U.S. Dist. LEXIS 114447 (N.D. Iowa Aug. 14, 2012): Footnote 8. The defendants … maintain that I erred when I permitted Elizabeth Pratt to offer expert opinion testimony on whether Gilster would experience anxiety and stress…
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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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