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

Limits on Equitable Tolling — Exceptions to Client Responsibility for Lawyer Negligence — Gross Negligence vs. Negligence (Good Quote)

Hutchinson v. Florida, 2012 U.S. App. LEXIS 7960 (11th Cir. April 19, 2012): A petitioner has the burden of establishing his right — if "right" is not too strong a word in the area of equity — to equitable tolling. He must plead or proffer enough facts that, if true, would justify an evidentiary hearing on the issue. Chave ...
Hutchinson v. Florida, 2012 U.S. App. LEXIS 7960 (11th Cir. April 19, 2012): A petitioner has the burden of establishing his right — if “right” is not too strong a word in the area of equity — to equitable tolling.…
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Spoliation — Unsuccessful Applicant’s Emails Asking Why She Was Not Hired Insufficient to Trigger Duty to Preserve — Sixth Circuit Applies Residential Funding Standard — Destruction in Ordinary Course

Perryman v. Postmaster General, 2012 U.S. App. LEXIS 7328 (6th Cir. April 11, 2012): Perryman's ADEA claim stems from USPS's denial of Perryman's application for the position of customer services supervisor at the Chagrin Falls, Ohio Post Office, the same position that she held at the South Euclid, Ohio Post Office. Perryman applied ...
Perryman v. Postmaster General, 2012 U.S. App. LEXIS 7328 (6th Cir. April 11, 2012): Perryman’s ADEA claim stems from USPS’s denial of Perryman’s application for the position of customer services supervisor at the Chagrin Falls, Ohio Post Office, the same…
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Settlement Negotiations Are Not Privileged — Circuit Split — Utility of Rule 26 — Heightened Standard for Discovery

In re MSTG, Inc., 2012 U.S. App. LEXIS 7092 (Fed. Cir. April 9, 2012): This [mandamus] petition arises out of an order of the United States District Court for the Northern District of Illinois compelling MSTG, Inc. ("MSTG") to produce documents related to license negotiation discussions between MSTG and six other companies, including pr ...
In re MSTG, Inc., 2012 U.S. App. LEXIS 7092 (Fed. Cir. April 9, 2012): This [mandamus] petition arises out of an order of the United States District Court for the Northern District of Illinois compelling MSTG, Inc. (“MSTG”) to produce…
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Where Testifying Expert Is Salaried Employee, Compensation Disclosure Requirement of Rule 26(a)(2)(B) Does Not Apply unless Salary Is Tied to or Dependent on Opinions — Full-Time Employee Status Alone Sufficient to Show Bias

Securities and Exchange Commission v. Nadel, , 2012 U.S. Dist. LEXIS 53173 (E.D.N.Y. April 16, 2012): Dr. Porter is an Assistant Professor of Finance at Iowa State University who is currently serving at the SEC's Division of Risk, Strategy and Financial Innovation pursuant to an Intergovernmental Personnel Act agreement awarded in June 2 ...
Securities and Exchange Commission v. Nadel, , 2012 U.S. Dist. LEXIS 53173 (E.D.N.Y. April 16, 2012): Dr. Porter is an Assistant Professor of Finance at Iowa State University who is currently serving at the SEC’s Division of Risk, Strategy and…
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Class Actions — Superiority — Circuit Split as to Whether, Where Predominance Is Lacking, Court May Certify Sub-Issues for Class Adjudication Even Though Claim as a Whole Does Not Satisfy Predominance — Does This Split Survive Dukes?

Oakley v. Verizon Commc’ns, Inc., 2012 U.S. Dist. LEXIS 12975 (S.D.N.Y. Feb. 1, 2012): Where predominance is lacking, a Court may certify sub-issues for class adjudication; in Nassau County [In re Nassau County Strip Search Cases, 461 F.3d 219 (2d Cir. 2006),] the Second Circuit acknowledged a split in Circuit caselaw, but sided wi ...
Oakley v. Verizon Commc’ns, Inc., 2012 U.S. Dist. LEXIS 12975 (S.D.N.Y. Feb. 1, 2012): Where predominance is lacking, a Court may certify sub-issues for class adjudication; in Nassau County [In re Nassau County Strip Search Cases, 461 F.3d 219 (2d…
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Is a Court Officer Entitled to Absolute Quasi-Judicial Immunity — or Only Qualified Immunity — When Using Excessive Force to Remove a Person from the Courtroom pursuant to a Judge’s Order? Circuit Split

Ingram v. Township of Deptford, 2012 U.S. Dist. LEXIS 34031 (D.N.J. Mar. 13, 2012): A Circuit split exists with respect to whether a court officer is entitled to absolute quasi-judicial immunity when the officer allegedly uses excessive force to remove a person from a courtroom pursuant to a judge's order. The Third Circuit has not addr ...
Ingram v. Township of Deptford, 2012 U.S. Dist. LEXIS 34031 (D.N.J. Mar. 13, 2012): A Circuit split exists with respect to whether a court officer is entitled to absolute quasi-judicial immunity when the officer allegedly uses excessive force to remove…
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A Post-Trial Motion for Judgment as a Matter of Law under Rule 50(b) May Only be Made on the Same Specific Grounds as the Pre-Verdict Motion under Rule 50(a)

Lore v. City of Syracuse, 2012 U.S. App. LEXIS 1954 (2d Cir. Feb. 2, 2012): Rule 50 of the Federal Rules of Civil Procedure provides in part that "[a] motion for judgment as a matter of law may be made at any time before the case is submitted to the jury." Fed. R. Civ. P. 50(a)(2). The principal purpose of the requirement that any such ...
Lore v. City of Syracuse, 2012 U.S. App. LEXIS 1954 (2d Cir. Feb. 2, 2012): Rule 50 of the Federal Rules of Civil Procedure provides in part that “[a] motion for judgment as a matter of law may be made…
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Fraud on the Court under Rule 60(d)(3) — Elements — Possible Circuit Split as to Standard of Review — No Fraud on the Court for Failure to Advise Judge of Side Settlement When Presenting Consent Judgment for Approval

General Medicine, PC v. Horizon/CMS Health Care Corp., 2012 U.S. App. LEXIS 7186 (6th Cir. April 10, 2012): This matter began as a contract dispute between General and Horizon in the Eastern District of Michigan.... HealthSouth acquired Horizon in 1997 during the pendency of this suit, but never became a party.... In 2001, while the cas ...
General Medicine, PC v. Horizon/CMS Health Care Corp., 2012 U.S. App. LEXIS 7186 (6th Cir. April 10, 2012): This matter began as a contract dispute between General and Horizon in the Eastern District of Michigan…. HealthSouth acquired Horizon in 1997…
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Communications with Unretained Experts, Unprotected by Rule 26(b)(B)(4)(C), Are Protected by Attorney-Client Privilege — Any Exceptions? — Affiants on Preliminary Injunction = Testifying Experts

Graco, Inc. v. PMC Global, Inc., 2011 WL 666056 (D.N.J. Feb. 14, 2011): In connection with Graco’s motion for a preliminary injunction *** and opposition to PMC’s motion for summary judgment ***, Graco submitted [numerous] affidavits.... The Court notes that Weinberger, Mulder, Farrow, and Pagano are Graco employees (collectivel ...
Graco, Inc. v. PMC Global, Inc., 2011 WL 666056 (D.N.J. Feb. 14, 2011): In connection with Graco’s motion for a preliminary injunction *** and opposition to PMC’s motion for summary judgment ***, Graco submitted [numerous] affidavits…. The Court notes that…
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Updated Article on Internet & Email Evidence (Part 2)

Download associated file: Internet Email Social Media Evidence Part 2.pdf  Part 2 of the updated version of Internet and Email Evidence, as published this month in The Practical Litigator, is linked above, in PDF format. Part 1 was published in February and is li ...
Download associated file: Internet Email Social Media Evidence Part 2.pdf  Part 2 of the updated version of Internet and Email Evidence, as published this month in The Practical Litigator, is linked above, in PDF format. Part 1 was published…
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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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