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

Inherent Power Sanctions — Voluntary Dismissal in Face of Summary Judgment Motion = Evidence of Awareness of Frivolousness/Subjective Bad Faith — Client’s Verification of Complaint No Defense to Attorney’s Filing Baseless Claim

Dubuc v. Green Oak Township, 2012 U.S. App. LEXIS 11334 (6th Cir. June 4, 2012): Dennis Dubuc has a long history of instigating lawsuits against his township. As chronicled in an opinion from the Michigan Supreme Court, Dubuc filed "at least ten lawsuits" between 1985 and 2000, when the opinion was written. Dubuc v. Green Oak Twp., 609 ...
Dubuc v. Green Oak Township, 2012 U.S. App. LEXIS 11334 (6th Cir. June 4, 2012): Dennis Dubuc has a long history of instigating lawsuits against his township. As chronicled in an opinion from the Michigan Supreme Court, Dubuc filed “at…
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Non-Binding Arbitration ≠ Mediation — Proceedings Not Protected from Discovery Even If Federal Mediation Privilege Exists (Undecided)

Kimberly-Clark Worldwide, Inc. v. First Quality Baby Prods., LLC, 447 Fed. Appx. 217 (Fed. Cir. 2011): Kimberly-Clark Worldwide, Inc. ("K-C") appeals from the district court's orders compelling discovery relating to three alternative dispute resolution agreements and the proceedings that occurred pursuant to those agreements. ***
Kimberly-Clark Worldwide, Inc. v. First Quality Baby Prods., LLC, 447 Fed. Appx. 217 (Fed. Cir. 2011): Kimberly-Clark Worldwide, Inc. (“K-C”) appeals from the district court’s orders compelling discovery relating to three alternative dispute resolution agreements and the proceedings that occurred…
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Personal Knowledge Regarding Business Records May Be Inferred from Witness’s Position with Company, and Custodian May Testify as Corporate Representative — No Such Inference of Personal Knowledge Where Counsel Sponsors Internet Exhibit

Lusk v . Wells Fargo N.A., 2012 U.S. Dist. LEXIS 70369 (E.D. Tex. May 21, 2012): This is a dispute over an attempted foreclosure on certain real property located at 6738 County Road 593, Nevada, Collin County, Texas. *** First, Plaintiffs object to portions of the affidavit of Jennifer Robinson*** Federal Rule of Civil Pro ...
Lusk v . Wells Fargo N.A., 2012 U.S. Dist. LEXIS 70369 (E.D. Tex. May 21, 2012): This is a dispute over an attempted foreclosure on certain real property located at 6738 County Road 593, Nevada, Collin County, Texas. *** First,…
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Social Media — Jurors Complaints About Jury Service on Facebook, Receipt of Commiserating Messages, and Friending Other Jurors Not Grounds for New Trial Absent Evidence of Extraneous Influence — No Right to Discovery from Facebook

Commonwealth v. Werner, 81 Mass. App. Ct. 689, 967 N.E.2d 159 (2012): After the defendant, Clare Werner, was convicted at a jury trial of twelve counts of larceny in excess of $250, in violation of G. L. c. 266, § 30(1), her defense counsel visited Facebook, a social networking Web site, and reviewed public postings by two jurors mad ...
Commonwealth v. Werner, 81 Mass. App. Ct. 689, 967 N.E.2d 159 (2012): After the defendant, Clare Werner, was convicted at a jury trial of twelve counts of larceny in excess of $250, in violation of G. L. c. 266, §…
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Rule 11 Safe Harbor Satisfied by Service of Naked Motion — Unnecessary to Serve Accompanying Brief and Affidavit — Judge’s Warning that Proposed Motion May Trigger Sanctions Proper

Star Mark Mgmt., Inc. v. Koon Chun Hing K&E Soy & Sauce Factory, Ltd., 2012 U.S. App. LEXIS 12002 (2d Cir. June 13, 2012): The safe-harbor provision is a strict procedural requirement. Perpetual Sec., Inc. v. Tang, 290 F.3d 132, 142 n.4 (2d Cir. 2002); see also Hadges v. Yonkers Racing Corp., 48 F.3d 1320, 1327-29 (2d Cir. 1995). An ...
Star Mark Mgmt., Inc. v. Koon Chun Hing K&E Soy & Sauce Factory, Ltd., 2012 U.S. App. LEXIS 12002 (2d Cir. June 13, 2012): The safe-harbor provision is a strict procedural requirement. Perpetual Sec., Inc. v. Tang, 290 F.3d 132,…
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Federal District Court Should Look to Decisions of Other Circuits in the Absence of Guiding Authority in Its Own Circuit and Be Reluctant to Create a Circuit Split

United States v. Bryan Co., 2012 U.S. Dist. LEXIS 78407 (S.D. Miss. June 6, 2012): And although it is true that Fourth Circuit decisions are not binding in this judicial district, an "informed person" would expect this court "to look to the opinions of other circuits for persuasive guidance, always chary to create a circuit split." ...
United States v. Bryan Co., 2012 U.S. Dist. LEXIS 78407 (S.D. Miss. June 6, 2012): And although it is true that Fourth Circuit decisions are not binding in this judicial district, an “informed person” would expect this court “to look…
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Arbitration — If Manifest Disregard Survives, What Does It Mean?

Cerone v. Bank of Am. Inv. Servs., 2012 U.S. Dist. LEXIS 76952 (D.N.J. June 4, 2012): Pursuant to the FAA, a district court may vacate an arbitration award only under a limited set of circumstances: (1) where the award was procured by corruption, fraud, or undue means; (2) where there was evident partiality or co ...
Cerone v. Bank of Am. Inv. Servs., 2012 U.S. Dist. LEXIS 76952 (D.N.J. June 4, 2012): Pursuant to the FAA, a district court may vacate an arbitration award only under a limited set of circumstances: (1) where the award was…
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Insufficiently Detailed 26(a)(2)(C) Expert Disclosures

Sapienza v. U.S. Dep’t of Veterans Affairs, 2012 U.S. Dist. LEXIS 75928 (E.D.N.Y. May 31, 2012): The defendant ... argues that even if the doctors are permitted to provide expert testimony without providing a report under 26(a)(2)(B), the summary that the plaintiff provided under Rule 26(a)(2)(C) is insufficient. Specifically, the def ...
Sapienza v. U.S. Dep’t of Veterans Affairs, 2012 U.S. Dist. LEXIS 75928 (E.D.N.Y. May 31, 2012): The defendant … argues that even if the doctors are permitted to provide expert testimony without providing a report under 26(a)(2)(B), the summary that…
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Inherent Power Sanction in Interest of “Fairness” Unsustainable Absent Finding of Bad Faith

Tucker v. Williams, 2012 U.S. App. LEXIS 11262 (7th Cir. June 5, 2012): After investigating a report that Kendall Tucker was in possession of a stolen backhoe, Karl Williams, a state law enforcement investigator, seized the backhoe without a warrant. Tucker brought a civil rights action in district court, claiming that his rights under ...
Tucker v. Williams, 2012 U.S. App. LEXIS 11262 (7th Cir. June 5, 2012): After investigating a report that Kendall Tucker was in possession of a stolen backhoe, Karl Williams, a state law enforcement investigator, seized the backhoe without a warrant.…
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Should Evidentiary Rulings Be Reviewed De Novo or for Abuse of Discretion? Various Circuit Splits, Focusing on, But Not Limited to, Rule 404(b) Rulings

United States v. Clay, 2012 U.S. App. LEXIS 7873 (6th Cir. April 19, 2012) (Kethledge, J., dissenting): This case presents two significant and recurring issues on which our court has express intra-circuit conflicts. The first issue — on which there is also an inter-circuit split — concerns our standard of review with respect to ...
United States v. Clay, 2012 U.S. App. LEXIS 7873 (6th Cir. April 19, 2012) (Kethledge, J., dissenting): This case presents two significant and recurring issues on which our court has express intra-circuit conflicts. The first issue — on which there…
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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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