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

Impact of Daubert at Class Certification — Conflicting Circuit Views

Third Circuit: “[The district court] need not turn class certification into a mini-trial.... We understand the Court’s observation [i.e., the Supreme Court’s observation in Dukes] to require a district court to evaluate whether an expert is presenting a model which could evolve to become admissible evidence, and ...
Third Circuit: “[The district court] need not turn class certification into a mini-trial…. We understand the Court’s observation [i.e., the Supreme Court’s observation in Dukes] to require a district court to evaluate whether an expert is presenting a model which…
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Extraterritorial Reach of RICO — Is Test Location of Enterprise or of Pattern? — No Proximate Cause between Money Laundering Predicate and Pretextual Firing

Cedeño v. Castillo, 2012 U.S. App. LEXIS 1469 (2d Cir. Jan. 25, 2012) (affirming the decision excerpted in our post of October 10, 2010): On appeal, Cedeño ... [f]irst ... contends that his claim fits within the scope of RICO's domestic application because it alleges conduct in the United States that is within RICO's "focus." See Morr ...
Cedeño v. Castillo, 2012 U.S. App. LEXIS 1469 (2d Cir. Jan. 25, 2012) (affirming the decision excerpted in our post of October 10, 2010): On appeal, Cedeño … [f]irst … contends that his claim fits within the scope of RICO’s…
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Inherent Power Sanction Imposed on Attorney for Failure to Monitor ECF and Missing a Hearing That Was Noticed Only Electronically and Just Two Days before the Hearing Date

United States v. Romero-Lopez, 2011 U.S. App. LEXIS 22897 (1st Cir. Nov. 16, 2011): Attorney ... was sanctioned by the district court, under its inherent powers, in the amount of $1,500 for failing to appear at the rescheduled sentencing hearing for his client, a criminal defendant. We affirm the issuance of the sanction, but reduce the ...
United States v. Romero-Lopez, 2011 U.S. App. LEXIS 22897 (1st Cir. Nov. 16, 2011): Attorney … was sanctioned by the district court, under its inherent powers, in the amount of $1,500 for failing to appear at the rescheduled sentencing hearing…
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Class Actions — Rule 23(c)(1)(B) Requires a Readily Discernible, Clear and Precise (1) Statement of the Parameters Defining the Class and (2) Complete List of Claims, Issues or Defenses

Ross v. RBS Citizens, N.A., 2012 U.S. App. LEXIS 1478 (7th Cir. Jan. 27, 2012): Charter One appealed the district court's certification order, and this interlocutory appeal is now before us on (1) the very narrow issue of whether the district court judge's certification order complied with Rule 23(c)(1)(B) and (2) whether the two certif ...
Ross v. RBS Citizens, N.A., 2012 U.S. App. LEXIS 1478 (7th Cir. Jan. 27, 2012): Charter One appealed the district court’s certification order, and this interlocutory appeal is now before us on (1) the very narrow issue of whether the…
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Cunningham Dictates that Inherent Power Sanctions, Like Discovery Sanctions, Are Not Appealable on Interlocutory Basis under Collateral Order Doctrine

Douglas v. Merck & Co., 2012 U.S. App. LEXIS 1288 (2d Cir. Jan. 23, 2012): Attorney Gary Douglas, counsel to plaintiff Shirley Boles during the trial of her products liability action against defendant Merck & Co., Inc. ("Merck"), appeals the district court's October 4, 2010 order imposing on him a $2,500 sanction for improperly suggestin ...
Douglas v. Merck & Co., 2012 U.S. App. LEXIS 1288 (2d Cir. Jan. 23, 2012): Attorney Gary Douglas, counsel to plaintiff Shirley Boles during the trial of her products liability action against defendant Merck & Co., Inc. (“Merck”), appeals the…
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May Court Grant Rule 60(b) Relief Sua Sponte? Circuit Split

Reich v. Hallet (In re Hallet), 2011 Bankr. LEXIS 4992 (Bankr. D. Mass. Dec. 19, 2011): Pursuant to Fed. R. Civ. P. 60(b), made applicable to bankruptcy cases by Fed. R. Bankr. P. 9024, "[o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for . . . mistake, i ...
Reich v. Hallet (In re Hallet), 2011 Bankr. LEXIS 4992 (Bankr. D. Mass. Dec. 19, 2011): Pursuant to Fed. R. Civ. P. 60(b), made applicable to bankruptcy cases by Fed. R. Bankr. P. 9024, “[o]n motion and just terms, the…
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RICO: Owners of Free Floating Vessels Not Subject to RICO Liability via Outer Continental Shelf Lands Act’s Provisions Extending US Law to Seabed and Permanently or Temporarily Attached Installations

Brown v. Offshore Specialty Fabricators, 663 F.3d 759 (5th Cir. 2011): This appeal involves a putative class action brought against several oil and gas companies and several companies that provide labor for offshore oil and gas projects. The plaintiffs allege violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) an ...
Brown v. Offshore Specialty Fabricators, 663 F.3d 759 (5th Cir. 2011): This appeal involves a putative class action brought against several oil and gas companies and several companies that provide labor for offshore oil and gas projects. The plaintiffs allege…
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Securities — 10b-5 Liability for Breach of Contract — Shingle Theory of Broker-Dealer Liability

Capital Management Select Fund v. Bennett, 2012 U.S. App. LEXIS 471 (2d Cir. Jan. 10, 2012): Former customers ("RCM Customers") of Refco Capital Markets, Ltd. ("RCM"), a subsidiary of the now-bankrupt Refco, Inc., appeal from Judge Lynch's dismissal of their Section 10(b) securities fraud claims against former corporate officers of Ref ...
Capital Management Select Fund v. Bennett, 2012 U.S. App. LEXIS 471 (2d Cir. Jan. 10, 2012): Former customers (“RCM Customers”) of Refco Capital Markets, Ltd. (“RCM”), a subsidiary of the now-bankrupt Refco, Inc., appeal from Judge Lynch’s dismissal of their…
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Arbitration: § 5 of FAA Authorizes Court to Name Substitute Arbitrator when Contractually-Designated One Is Unavailable and Not “Integral” — Circuit Split on Interpretation of § 5

Khan v. Dell, Inc., 2012 U.S. App. LEXIS 1167 (3d Cir. Jan. 20, 2012): This appeal involves a matter of first impression for this Circuit — whether Section 5 of the Federal Arbitration Act (FAA) requires the appointment of a substitute arbitrator when the arbitrator designated by the parties is unavailable.*** I. Factual Backgr ...
Khan v. Dell, Inc., 2012 U.S. App. LEXIS 1167 (3d Cir. Jan. 20, 2012): This appeal involves a matter of first impression for this Circuit — whether Section 5 of the Federal Arbitration Act (FAA) requires the appointment of a…
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Award of Expert Witness Fees as Inherent Power Sanction Where Bad Faith Litigant’s Proffer Excluded — Inherent Power vs. 35 U.S.C. § 285

Marctec, LLC v. Johnson & Johnson, 2012 U.S. App. LEXIS 8 (Fed. Cir. Jan. 3, 2012): A district court has inherent authority "to impose sanctions in the form of reasonable expert fees in excess of what is provided for by statute." Takeda Chem. Indus., Ltd. v. Mylan Labs., Inc., 549 F.3d 1381, 1391 (Fed. Cir. 2008). Use of this inherent a ...
Marctec, LLC v. Johnson & Johnson, 2012 U.S. App. LEXIS 8 (Fed. Cir. Jan. 3, 2012): A district court has inherent authority “to impose sanctions in the form of reasonable expert fees in excess of what is provided for by…
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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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