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

Experts – 2010 Amendments – No Work Product Protection for Communications between Testifying and Consulting Experts, Among Consulting Experts, or Between Counsel and Consulting Experts

In re Application of Republic of Ecuador, 2012 U.S. Dist. LEXIS 32135 (N.D. Cal. Mar. 9, 2012) (magistrate judge's decision): Respondents label certain third party consultants (e.g., Golder Associates, NewFields, CH2M Hill, ENTRIX, Quantum Informe, GSI Environmental, Inc., Doug Reagan & Associates) as Chevron's "agents," seeking prot ...
In re Application of Republic of Ecuador, 2012 U.S. Dist. LEXIS 32135 (N.D. Cal. Mar. 9, 2012) (magistrate judge’s decision): Respondents label certain third party consultants (e.g., Golder Associates, NewFields, CH2M Hill, ENTRIX, Quantum Informe, GSI Environmental, Inc., Doug Reagan…
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Interrogatories — What Are “Discrete Subparts” for Purposes of Limit of 25?

Carpenter v. Donegan, 2012 U.S. Dist. LEXIS 35176 (N.D.N.Y. Mar. 15, 2012): The permissible number of Interrogatories is controlled by Rule 33(a) which reads in part, "[u]nless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts [.]" ...
Carpenter v. Donegan, 2012 U.S. Dist. LEXIS 35176 (N.D.N.Y. Mar. 15, 2012): The permissible number of Interrogatories is controlled by Rule 33(a) which reads in part, “[u]nless otherwise stipulated or ordered by the court, a party may serve on any…
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Personal Jurisdiction — Minimum Contracts Based on Cause of Action “Arising out of or Relating to” a Contract (Circuit Split) — Significance of Choice of Law Clause

SIPC v. Bernard L. Madoff Inv. Secs., 460 B.R. 106 (Bankr. S.D.N.Y. 2011): The Second Circuit has indicated that entering into a contract with a New York choice of law clause is "a significant factor in a personal jurisdiction analysis because the parties . . . invoke the benefits and protections of New York law." Sunward Elect ...
SIPC v. Bernard L. Madoff Inv. Secs., 460 B.R. 106 (Bankr. S.D.N.Y. 2011): The Second Circuit has indicated that entering into a contract with a New York choice of law clause is “a significant factor in a personal jurisdiction analysis…
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Securities — SLUSA — Circuit Split over Meaning of “In Connection With”

From Roland v. Green, 2012 U.S. App. LEXIS 5672 (5th Cir. Mar. 19, 2012): Since Dabit, six of our sister circuit courts have tried to give dimension to the "coincide" requirement announced in SEC v. Zandford and brought into the SLUSA scheme in Dabit. Romano v. Kazacos, 609 F.3d 512 (2d Cir. 2010); Segal v. Fifth Third Bank, N.A., 581 ...
From Roland v. Green, 2012 U.S. App. LEXIS 5672 (5th Cir. Mar. 19, 2012): Since Dabit, six of our sister circuit courts have tried to give dimension to the “coincide” requirement announced in SEC v. Zandford and brought into the…
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Class Actions — Can Court Use Rule 23(c)(4) to Certify a (b)(3) Class as to Parts of a Claim without Finding That Whole Claim Satisfies Predominance Requirement? Circuit Split

In re Motor Fuel Temperature Sales Practices Litig., 2012 U.S. Dist. LEXIS 6433 (D. Kan. Jan. 19, 2012): III. Rule 23 Requirements Rule 23, Fed. R. Civ. P., governs class certification. Under Rule 23(a), the party seeking class certification must first demonstrate that: (1) the class is ...
In re Motor Fuel Temperature Sales Practices Litig., 2012 U.S. Dist. LEXIS 6433 (D. Kan. Jan. 19, 2012): III. Rule 23 Requirements Rule 23, Fed. R. Civ. P., governs class certification. Under Rule 23(a), the party seeking class certification must…
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Service of Process by Mail on Canadian Permitted by Hague Conventions

Dierig v. Lees Leisure Indus., 2012 U.S. Dist. LEXIS 26181 (E.D. Ky. Feb. 28, 2012): Defendant Lees Leisure, a business entity organized under the laws of Canada, asserts that service was not made in accordance with the Hague Convention and is therefore ineffective, meriting dismissal. (Doc. # 11-1 at 16).*** Footn ...
Dierig v. Lees Leisure Indus., 2012 U.S. Dist. LEXIS 26181 (E.D. Ky. Feb. 28, 2012): Defendant Lees Leisure, a business entity organized under the laws of Canada, asserts that service was not made in accordance with the Hague Convention and…
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May District Court Transfer Part of an Action pursuant to 28 U.S.C. § 1631? Circuit Split

Johnson v. Mitchell, 2012 U.S. Dist. LEXIS 28051 (E.D. Cal. Mar. 2, 2012): Finally, in light of the court's conclusion that it lacks personal jurisdiction over defendant Thomas, the only issue remaining is whether plaintiff's claims against defendant Thomas should be dismissed or transferred to the District of Colorado where Thomas resi ...
Johnson v. Mitchell, 2012 U.S. Dist. LEXIS 28051 (E.D. Cal. Mar. 2, 2012): Finally, in light of the court’s conclusion that it lacks personal jurisdiction over defendant Thomas, the only issue remaining is whether plaintiff’s claims against defendant Thomas should…
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New York State Spoliation Law — Negligence Suffices for Case-Ending Sanction If Prejudice Is Severe Enough

Jamindar v. Uniondale Union Free School Dist., 90 A.D.3d 610, 933 N.Y.S.2d 735 (2d Dep’t 2011): "When a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading" ...
Jamindar v. Uniondale Union Free School Dist., 90 A.D.3d 610, 933 N.Y.S.2d 735 (2d Dep’t 2011): “When a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense,…
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Sanctions — Single Tardy Appearance by Counsel at Hearing Does Not Warrant Inherent Power Sanction

United States v. Olvera-Yanez, 2012 U.S. App. LEXIS 3437 (9th Cir. Feb. 21, 2012): Attorney Nikoo Berenji appeals the district court's imposition of sanctions for appearing late to a hearing. We have jurisdiction under 28 U.S.C. § 1291, and we vacate the imposition of sanctions and remand. Berenji contends the district abused i ...
United States v. Olvera-Yanez, 2012 U.S. App. LEXIS 3437 (9th Cir. Feb. 21, 2012): Attorney Nikoo Berenji appeals the district court’s imposition of sanctions for appearing late to a hearing. We have jurisdiction under 28 U.S.C. § 1291, and we…
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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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