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

Denial of Summary Judgment Motion Not Appealable after Trial on the Merits

Turner v. Ramo, LLC, 2012 U.S. App. LEXIS 3568 (11th Cir. Feb. 23, 2012): On appeal, the Ramo Company argues only that the district court erred in denying its pretrial motion for summary judgment. It is well-settled that we "will not review the pretrial denial of a motion for summary judgment after a full trial and judgment on the ...
Turner v. Ramo, LLC, 2012 U.S. App. LEXIS 3568 (11th Cir. Feb. 23, 2012): On appeal, the Ramo Company argues only that the district court erred in denying its pretrial motion for summary judgment. It is well-settled that we “will…
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When Is Error Plain?

United States v. Laureys, 653 F.3d 27 (D.C. Cir. 2011): "Generally an error is plain if it contradicts circuit or Supreme Court precedent." In re Sealed Case, 573 F.3d 844, 851, 387 U.S. App. D.C. 375 (D.C. Cir. 2009). The district court's instructions contradicted no precedents of this Court or the Supreme Court. Rarely do we ...
United States v. Laureys, 653 F.3d 27 (D.C. Cir. 2011): “Generally an error is plain if it contradicts circuit or Supreme Court precedent.” In re Sealed Case, 573 F.3d 844, 851, 387 U.S. App. D.C. 375 (D.C. Cir. 2009). The…
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Securities: Morrison Requires Either Irrevocable Liability Incurred, or Title Transferred, in U.S. — Not Mere Use of U.S. Broker-Dealer — Applicability of §10(b) Goes to Merits, Not Subject Matter Jurisdiction

Absolute Activist Value Master Fund Limited v. Ficeto, 2012 U.S. App. LEXIS 4258 (2d Cir. Mar. 1, 2012): This case requires us to determine whether foreign funds' purchases and sales of securities issued by U.S. companies brokered through a U.S. broker-dealer constitute "domestic transactions" pursuant to Morrison v. National Australia ...
Absolute Activist Value Master Fund Limited v. Ficeto, 2012 U.S. App. LEXIS 4258 (2d Cir. Mar. 1, 2012): This case requires us to determine whether foreign funds’ purchases and sales of securities issued by U.S. companies brokered through a U.S.…
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Rooker Feldman — Circuit Split as to Whether Doctrine Applies Where State Court Judgment Was Void for Lack of Jurisdiction — Does Apply Where State Court Found (Allegedly in Error) That It Lacked Jurisdiction

Williams v. Williams, 2012 U.S. Dist. LEXIS 24846 (W.D.N.Y. Feb. 20, 2012): Although this Court agrees with Plaintiff that these decisions make clear that his petitions were dismissed, with prejudice, on jurisdictional grounds, whether this means the Rooker-Feldman doctrine does not apply is another question. Some courts have found ...
Williams v. Williams, 2012 U.S. Dist. LEXIS 24846 (W.D.N.Y. Feb. 20, 2012): Although this Court agrees with Plaintiff that these decisions make clear that his petitions were dismissed, with prejudice, on jurisdictional grounds, whether this means the Rooker-Feldman doctrine does…
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Standard for Recusal under 28 U.S.C. § 455

Kolon Indus. v. E.I. duPont de Nemours & Co., 2012 U.S. Dist. LEXIS 21655 (E.D. Va. Feb. 21, 2012): In Liljeberg, the Supreme Court affirmed the Fifth Circuit's "construction of § 455(a)," finding that a violation of the statute "is established when a reasonable person, knowing the relevant facts, would expect that a justice, judge ...
Kolon Indus. v. E.I. duPont de Nemours & Co., 2012 U.S. Dist. LEXIS 21655 (E.D. Va. Feb. 21, 2012): In Liljeberg, the Supreme Court affirmed the Fifth Circuit’s “construction of § 455(a),” finding that a violation of the statute “is…
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Expert May Not Act as Mere Conduit for Hearsay or Vehicle for Factual Narrative — Specific Court-Directed Principles for Experts to Abide by While Testifying

Island Intellectual Property LLC v Deutsche Bank AG, 2012 U.S. Dist. LEXIS 21742 (S.D.N.Y. Feb. 14, 2012): In determining where to draw appropriate lines, the court must consider whether an expert's proposed testimony would usurp the province of the judge to instruct on the law, or of the jury to make factual determinations. Se ...
Island Intellectual Property LLC v Deutsche Bank AG, 2012 U.S. Dist. LEXIS 21742 (S.D.N.Y. Feb. 14, 2012): In determining where to draw appropriate lines, the court must consider whether an expert’s proposed testimony would usurp the province of the judge…
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Sanctions — No Abuse of Discretion Where Court Applied Correct Legal Standard and Sanction Was Is Neither Illogical, Implausible Nor without Support in the Record

Plata v. Darbun Enters., 2012 U.S. App. LEXIS 3074 (9th Cir. Feb. 13, 2012): Plaintiffs appeal the grant of sanctions under 28 U.S.C. § 1927 and the amount awarded. Darbun cross-appeals the amount of sanctions awarded. The district court did not abuse its discretion by imposing sanctions. United States v. Hinkson, 585 F.3d 1247, 1251 ...
Plata v. Darbun Enters., 2012 U.S. App. LEXIS 3074 (9th Cir. Feb. 13, 2012): Plaintiffs appeal the grant of sanctions under 28 U.S.C. § 1927 and the amount awarded. Darbun cross-appeals the amount of sanctions awarded. The district court did…
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District Courts Are Bound by Circuit Precedent No Matter How Erroneous They Perceive It to Be

Nakal v. Personal Probation Officer, 2012 U.S. Dist. LEXIS 14856 (C.D. Cal. Feb. 6, 2012): As petitioner's counsel must realize, however, this court sits in the Ninth Circuit and is bound by Ninth Circuit precedent. Zuniga v. United Can Co., 812 F.2d 443 (9th Cir. 1987) ("District courts are, of course, bound by the law of their own ...
Nakal v. Personal Probation Officer, 2012 U.S. Dist. LEXIS 14856 (C.D. Cal. Feb. 6, 2012): As petitioner’s counsel must realize, however, this court sits in the Ninth Circuit and is bound by Ninth Circuit precedent. Zuniga v. United Can Co.,…
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If an Arbitration Award Is Overturned Because the Arbitrator Exceeded His or Her Powers, It Should be Reheard by a Different Arbitrator

Muskegon Central Dispatch 911 v. Tiburon, Inc., 2012 U.S. App. LEXIS 2149 (6th Cir. Feb. 2, 2012) (reviewing a Federal Arbitration Act arbitration): The Michigan Court Rules permit a court to vacate an arbitration order and remand for rehearing. Mich. Comp. Laws § 3.602(J). However, the functus officio doctrine provides the circums ...
Muskegon Central Dispatch 911 v. Tiburon, Inc., 2012 U.S. App. LEXIS 2149 (6th Cir. Feb. 2, 2012) (reviewing a Federal Arbitration Act arbitration): The Michigan Court Rules permit a court to vacate an arbitration order and remand for rehearing. Mich.…
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Circuit Split: May a State Court Litigant against an Insured Intervene in a Federal Declaratory Judgment Action Brought by Insurer against Insured?

Am. Cas. Co. of Reading, Pa. v. Continental Properties, Inc., 2012 U.S. Dist. LEXIS 21949 (S.D. Ohio Feb. 22, 2012): There is a split in circuit authority on the issue of whether a state court litigant against an insurance company's insured may intervene in a federal court declaratory judgment action brought by the insurance company ...
Am. Cas. Co. of Reading, Pa. v. Continental Properties, Inc., 2012 U.S. Dist. LEXIS 21949 (S.D. Ohio Feb. 22, 2012): There is a split in circuit authority on the issue of whether a state court litigant against an insurance company’s…
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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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