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

Supremacy Clause Bars State Work Comp Statute from Preempting RICO — Fraudulent Deprivation of Work Comp Benefits (i.e., a Statutory Entitlement) = Injury to Property — State vs. Federal Law’s Role in Determining “Property”

Brown v. Cassens Transp. Co., 2012 U.S. App. LEXIS 6929 (6th Cir. April 6, 2012): We hold that the Supremacy Clause prevents the Michigan legislature from preempting a RICO remedy by declaring its worker's compensation scheme to be exclusive of federal remedies. An expected entitlement to benefits under the WDCA [Michigan's Worker's ...
Brown v. Cassens Transp. Co., 2012 U.S. App. LEXIS 6929 (6th Cir. April 6, 2012): We hold that the Supremacy Clause prevents the Michigan legislature from preempting a RICO remedy by declaring its worker’s compensation scheme to be exclusive of…
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Can Employees Be Unretained Experts under Rule 26(b)(4)(D)? Caselaw Split — Work Product & Employees — New Evidence on Reply Waived — Failure to Produce Evidence = Adverse Inference — Good Quotes on Protective Orders, Experts, Plain Meaning

Tellabs Operations, Inc. v. Fujitsu Ltd., 2012 U.S. Dist. LEXIS 60749 (N.D. Ill. May 1, 2012): In January 2008, Fujitsu Limited ("Fujitsu") filed suit against Tellabs Operations, Inc. ("Tellabs") in the Eastern District of Texas, charging it with infringing three of Fujitsu's patents for optical amplifiers. 1 A few months later, in June ...
Tellabs Operations, Inc. v. Fujitsu Ltd., 2012 U.S. Dist. LEXIS 60749 (N.D. Ill. May 1, 2012): In January 2008, Fujitsu Limited (“Fujitsu”) filed suit against Tellabs Operations, Inc. (“Tellabs”) in the Eastern District of Texas, charging it with infringing three…
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Emails as Business Records — Admissibility Standards

Rogers v. Oregon Trail Elec. Consumers Coop., Inc., 2012 U.S. Dist. LEXIS 65883 (D. Or. May 8, 2012): In Monotype Corp. PLC v. International Typeface Corp., the Ninth Circuit held that emails were not automatically admissible under the business records hearsay exception. 43 F.3d 443, 450 (9th Cir. 1994). The court reasoned tha ...
Rogers v. Oregon Trail Elec. Consumers Coop., Inc., 2012 U.S. Dist. LEXIS 65883 (D. Or. May 8, 2012): In Monotype Corp. PLC v. International Typeface Corp., the Ninth Circuit held that emails were not automatically admissible under the business records…
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Attorney-Client Privilege — Ninth Circuit Rejects Selective Waiver, Even If Party Has Confidentiality Agreement with Government Agency Receiving Privileged Information

In re Pacific Pictures Corp., 2012 U.S. App. LEXIS 9691 (9th Cir. May 10, 2012): A Petitioners' primary contention is that because Toberoff disclosed these documents to the government, as opposed to a civil litigant, his actions did not waive the privilege as to the world at large. That is, they urge that we adopt the theory ...
In re Pacific Pictures Corp., 2012 U.S. App. LEXIS 9691 (9th Cir. May 10, 2012): A Petitioners’ primary contention is that because Toberoff disclosed these documents to the government, as opposed to a civil litigant, his actions did not waive…
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Circuit Split as to Whether District Court May Partially Transfer an Action pursuant to 28 U.S.C. § 1631

Johnson v. Mitchell, 2012 U.S. Dist. LEXIS 65934 (E.D. Cal. May 10, 2012): The Circuits are split regarding whether the language of 28 U.S.C. § 1631 permits federal courts to partially transfer an action. See United States v. County of Cook, Ill., 170 F.3d 1084 (Fed. Cir. 1999) (approving transfer of some, but not all, claims); FDIC v. ...
Johnson v. Mitchell, 2012 U.S. Dist. LEXIS 65934 (E.D. Cal. May 10, 2012): The Circuits are split regarding whether the language of 28 U.S.C. § 1631 permits federal courts to partially transfer an action. See United States v. County of…
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Motion to Dismiss for Lack of Standing Properly Brought under Rule 12(b)(1) and Decided under 12(b)(6) Standards — Elements of Article III Standing

In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 2012 U.S. App. LEXIS 9832 (3d Cir. May 16, 2012): Under Fed. R. Civ. P. 12(b)(1), a court must grant a motion to dismiss if it lacks subject-matter jurisdiction to hear a claim. "A motion to dismiss for want of standing is . . . properly brought pursuant to Rule 12(b) ...
In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 2012 U.S. App. LEXIS 9832 (3d Cir. May 16, 2012): Under Fed. R. Civ. P. 12(b)(1), a court must grant a motion to dismiss if it lacks subject-matter jurisdiction to hear…
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Inherent Power Sanctions — Bad Faith Requires Something More Than Mere Pursuit of Meritless Claim — 3-Part Test — Sixth Circuit Questions Whether Inherent Power to Sanction Exists in Criminal Cases

United States v. Aleo, 681 F.3d 290 (6th Cir. 2012): On April 13, 2010, Freeman filed a motion to compel. The motion requested that the court order the prosecutor to file "a formal motion, with notice to defense counsel, seeking permission for the child complainant's mother to speak at ]prosecutor had refused to do as he asked that he ...
United States v. Aleo, 681 F.3d 290 (6th Cir. 2012): On April 13, 2010, Freeman filed a motion to compel. The motion requested that the court order the prosecutor to file “a formal motion, with notice to defense counsel, seeking…
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Unretained Experts — Broad, Summary Disclosures under Rule 26(a)(2)(C) Sufficient

Estate of Lance v. Lewisville Indep. School Dist., 2012 U.S. Dist. LEXIS 66190 (E.D. Tex. May 11, 2012): Dr. Walker will testify regarding the provision of special education services to students, and specifically how those services were provided to Montana Lance. Dr. Alexander will testify regarding psychological and special education a ...
Estate of Lance v. Lewisville Indep. School Dist., 2012 U.S. Dist. LEXIS 66190 (E.D. Tex. May 11, 2012): Dr. Walker will testify regarding the provision of special education services to students, and specifically how those services were provided to Montana…
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Tenth Circuit Requires Bad Faith to Support an Adverse Inference for Spoliation, Absent Motion for Rule 37 Sanctions

Toppins v. Minn. Life Ins. Co., 2012 U.S. App. LEXIS 1897 (10th Cir. Feb. 2, 2012): [Plaintiff’s] assertion that Mr. Jolly's destruction of his interview notes entitles her to an adverse inference is unavailing. She has not shown that she sought sanctions under Fed. R. Civ. P. 37; accordingly, she is limited to "seek[ing] sanction ...
Toppins v. Minn. Life Ins. Co., 2012 U.S. App. LEXIS 1897 (10th Cir. Feb. 2, 2012): [Plaintiff’s] assertion that Mr. Jolly’s destruction of his interview notes entitles her to an adverse inference is unavailing. She has not shown that she…
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In Forma Pauperis Lawsuits Should Generally Not be Dismissed for Lack of Venue, but Rather Transferred — Error Harmless, However, Where No Conceivable Basis for Venue and No Prejudice

Day v. City of Galveston, 2012 U.S. App. LEXIS 9592 (3d Cir. May 11, 2012): District courts generally should not dismiss IFP [in forma pauperis] complaints sua sponte for improper venue. As we explained: 28 U.S.C. § 1915 [the IFP statute] contains no express authorization for a dismissal for lack of venue. In th ...
Day v. City of Galveston, 2012 U.S. App. LEXIS 9592 (3d Cir. May 11, 2012): District courts generally should not dismiss IFP [in forma pauperis] complaints sua sponte for improper venue. As we explained: 28 U.S.C. § 1915 [the IFP…
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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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