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

Red Flags Militating Against Introduction of Expert Evidence

Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521 (6th Cir. 2012): Red flags that caution against certifying an expert include reliance on anecdotal evidence, improper extrapolation, failure to consider other possible causes, lack of testing, and subjectivity. Best v. Lowe's Home Ctrs., Inc., 563 F.3d 171, 177 (6th Cir. 2 ...
Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521 (6th Cir. 2012): Red flags that caution against certifying an expert include reliance on anecdotal evidence, improper extrapolation, failure to consider other possible causes, lack of testing, and subjectivity. Best v.…
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Earliest Case Rule: When Faced with Intra-Circuit Split, Court Should Look to the Line of Authority Containing Earliest Decision Because Later Panel Cannot Overturn Earlier Panel

Centeno v. NCL (Bahamas) Ltd., 2012 U.S. Dist. LEXIS 39741 (S.D. Fla. Mar. 21, 2012): Although Lindo rejects Thomas, it rejects Thomas saying it is inconsistent with a prior decision, Bautista. "When faced with an intra-circuit split we must apply the 'earliest case' rule, meaning 'when circuit authority is in conflict, a panel shoul ...
Centeno v. NCL (Bahamas) Ltd., 2012 U.S. Dist. LEXIS 39741 (S.D. Fla. Mar. 21, 2012): Although Lindo rejects Thomas, it rejects Thomas saying it is inconsistent with a prior decision, Bautista. “When faced with an intra-circuit split we must apply…
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Circuit Split as to Whether Government or Plaintiff Bears Burden of Proving Applicability/Inapplicability of Discretionary Function Exception in Federal Tort Claims Act Case

Timmerman v. United States, 2012 U.S. Dist. LEXIS 78651 (D. P.R. June 5, 2012): The FTCA provides a "carefully limited waiver" of the federal government's sovereign immunity for certain claims alleging harm caused by United States employees or agents. Carroll v. U.S., 661 F.3d 87, 93 (1st Cir. 2011)(citing Bolduc v. United States, 402 F ...
Timmerman v. United States, 2012 U.S. Dist. LEXIS 78651 (D. P.R. June 5, 2012): The FTCA provides a “carefully limited waiver” of the federal government’s sovereign immunity for certain claims alleging harm caused by United States employees or agents. Carroll…
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Jury Can’t Rely on Wikipedia But Circuit Does — Jury Verdict Overturned Due to Juror’s Consultation of Wikipedia During Deliberations in Direct Violation of Instruction — Reliability Questioned

United States v. Lawson, 677 F.3d 629 (4th Cir. 2012) (overturning a criminal conviction because a juror consulted Wikipedia for a definition of “sponsor”): Six days after the jury returned its verdict finding Lawson guilty on all charges, one of the jurors, Juror 1, informed a courtroom security officer of potential juror miscondu ...
United States v. Lawson, 677 F.3d 629 (4th Cir. 2012) (overturning a criminal conviction because a juror consulted Wikipedia for a definition of “sponsor”): Six days after the jury returned its verdict finding Lawson guilty on all charges, one of…
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Inherent Power Sanctions Imposed on Sophisticated Party for Court Papers Groundlessly Opposing Arbitration — Bad Faith Shown by Redacting Key Contractual Language from Quotation to Court

Amaprop Ltd. v Indiabulls Fin’l Servs. Ltd., 2012 U.S. App. LEXIS 10586 (2d Cir. May 25, 2012): Respondent-Appellant Indiabulls Financial Services Limited ("IFSL"), an Indian corporation, appeals from an award of attorney's fees granted by the district court as a sanction for IFSL's bad-faith efforts to avoid arbitration with Amaprop ...
Amaprop Ltd. v Indiabulls Fin’l Servs. Ltd., 2012 U.S. App. LEXIS 10586 (2d Cir. May 25, 2012): Respondent-Appellant Indiabulls Financial Services Limited (“IFSL”), an Indian corporation, appeals from an award of attorney’s fees granted by the district court as a…
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Law of the Case Doctrine Does Not Bar Trial Judge from Reconsidering Expert Rulings that Were Not Addressed on Interim Appeal — Limits on Applicability of Law of the Case Doctrine

Oliver v. Orange Cnty., Fla., 456 Fed. Appx. 815 (11th Cir. 2012): "Under the law of the case doctrine, both the district court and the appellate court are generally bound by a prior appellate decision of the same case. The law of the case doctrine, however, bars consideration of only those legal issues that were actually, or by n ...
Oliver v. Orange Cnty., Fla., 456 Fed. Appx. 815 (11th Cir. 2012): “Under the law of the case doctrine, both the district court and the appellate court are generally bound by a prior appellate decision of the same case. The…
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Rule 26(b)(4)(B) — Exceptional Circumstances Required to Depose Non-Testifying Expert Who Was Previously Designated as Testifying Expert — Caselaw Split

Decena v. Am. Int’l Cos., 2012 U.S. Dist. LEXIS 61303 (E.D. La. May 1, 2012): [T]he Court ordered Plaintiff to submit to an independent medical examination ("IME"), to be conducted by Defendants' designated expert, Dr. Avanelle Jack, on March 13, 2012. During the IME, Plaintiff reportedly experienced kidney failure, prompting Dr. ...
Decena v. Am. Int’l Cos., 2012 U.S. Dist. LEXIS 61303 (E.D. La. May 1, 2012): [T]he Court ordered Plaintiff to submit to an independent medical examination (“IME”), to be conducted by Defendants’ designated expert, Dr. Avanelle Jack, on March 13,…
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Joint Defense / Common Interest Privilege — Circuit Split as to Whether Parties Must Anticipate Litigation for the Privilege to Apply — Written Agreement Unnecessary — What Is a Common Legal Interest?

United States v. Env’l Defense Fund, 2012 U.S. Dist. LEXIS 59565 (M.D. N.C. 2012): VI. JOINT DEFENSE OR COMMON INTEREST RULE The Fourth Circuit recognizes an exception to waiver of attorney-client privilege in the joint defense rule, now "more properly identified as the 'common interest rule.'" In re Grand Jury Subp ...
United States v. Env’l Defense Fund, 2012 U.S. Dist. LEXIS 59565 (M.D. N.C. 2012): VI. JOINT DEFENSE OR COMMON INTEREST RULE The Fourth Circuit recognizes an exception to waiver of attorney-client privilege in the joint defense rule, now “more properly…
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The Lingering Question Whether Spoliation Sanctions Are Governed by State or Federal Law

Capogrosso v. 30 River Court East Urban Renewal Co., 2012 U.S. App. LEXIS 9835 (3d Cir. May 16, 2012): Eleanor Capogrosso, a licensed attorney, appeals from the District Court's dismissal of various complaints related to property damage allegedly suffered as a result of an incident involving a water pipe in her apartment. Following the ...
Capogrosso v. 30 River Court East Urban Renewal Co., 2012 U.S. App. LEXIS 9835 (3d Cir. May 16, 2012): Eleanor Capogrosso, a licensed attorney, appeals from the District Court’s dismissal of various complaints related to property damage allegedly suffered as…
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Cost of Unsafe Medical Procedure ≠ RICO Injury — Fraud Claim Duplicative of Malpractice Claim Must Be Dismissed Absent Separate and Distinct Injury

Gotlin v. Lederman, 2012 U.S. App. LEXIS 8790 (2d Cir. May 1, 2012): In this action, Gotlin asserts, inter alia, that defendants fraudulently misrepresented the efficacy of a particular form of cancer treatment, Fractionated Stereotactic Radiosurgery ("FSR"), and therefore unlawfully induced the decedents to unnecessarily undergo an ine ...
Gotlin v. Lederman, 2012 U.S. App. LEXIS 8790 (2d Cir. May 1, 2012): In this action, Gotlin asserts, inter alia, that defendants fraudulently misrepresented the efficacy of a particular form of cancer treatment, Fractionated Stereotactic Radiosurgery (“FSR”), and therefore unlawfully…
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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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