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

In Ruling on Motion to Amend after Scheduling Order Deadline, Court Need Not Consider Lack of Prejudice to Adversary — Only Diligence Must Be Considered

Kodak Graphic Commc’ns Canada Co. v. E.I. Du Pont de Nemours & Co., 2011 U.S. Dist. LEXIS 148853 (W.D.N.Y. Dec. 28, 2011): On June 26, 2009, [Magistrate] Judge Payson entered a stipulated scheduling order, setting the deadline to file any motions to amend the pleadings as July 31, 2009. *** On September 20, 2010, fourteen months ...
Kodak Graphic Commc’ns Canada Co. v. E.I. Du Pont de Nemours & Co., 2011 U.S. Dist. LEXIS 148853 (W.D.N.Y. Dec. 28, 2011): On June 26, 2009, [Magistrate] Judge Payson entered a stipulated scheduling order, setting the deadline to file any…
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Disqualification — May a Party Who Is Not a Current or Former Client Move to Disqualify on Conflict-of-Interest Grounds? Circuit Split

IMCO, LLC v. Ford, 2011 U.S. Dist. LEXIS 124535 (N.D. Cal. Oct. 27, 2011): A complaining party who files a motion to disqualify an attorney must first have standing to do so. Blue Water Sunset, LLC v. Markowitz, 195 Cal. App. 4th 477, 486 (2011). The circuits are split on the issue of whether an attorney can be disqualified on the g ...
IMCO, LLC v. Ford, 2011 U.S. Dist. LEXIS 124535 (N.D. Cal. Oct. 27, 2011): A complaining party who files a motion to disqualify an attorney must first have standing to do so. Blue Water Sunset, LLC v. Markowitz, 195 Cal.…
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Injunctions — Circuit Split as to Continuing Vitality of Sliding Scale Approach to Injunctive Relief

United States v. One, 793 F. Supp. 2d 157, 161 n. 5 (D.D.C. 2011): Generally, in deciding whether to grant interim injunctive relief, the Court must evaluate whether: "(1) the plaintiff has a substantial likelihood of success on the merits; (2) the plaintiff would suffer irreparable injury were an injunction not granted; (3) an injuncti ...
United States v. One, 793 F. Supp. 2d 157, 161 n. 5 (D.D.C. 2011): Generally, in deciding whether to grant interim injunctive relief, the Court must evaluate whether: “(1) the plaintiff has a substantial likelihood of success on the merits;…
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The 5 Most Important Developments in Federal Civil Practice in 2011

1. Class Actions: The Supreme Court's decision in Wal-Mart and its ramifications for (a) commonality determinations and (b) the application of Daubert at class certification (on which there is already a Circuit split). 2. Evidence: The restyled Federal Rules of Evidence, particularly Rule 101(b) (Definitions) and its impact on the self- ...
1. Class Actions: The Supreme Court’s decision in Wal-Mart and its ramifications for (a) commonality determinations and (b) the application of Daubert at class certification (on which there is already a Circuit split). 2. Evidence: The restyled Federal Rules of…
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Arbitration — Res Judicata Is for Arbitrator to Decide, Waiver by Litigation for Court — Abandonment of Issue on Appeal by Failing to Brief It

Grigsby & Assocs., Inc. v. M Secs. Inv., 2011 U.S. App. LEXIS 25217 (11th Cir. Dec. 20, 2011): This case is about whether the district court should have permitted a dispute to be arbitrated. Plaintiffs, Grigsby & Associates, Inc., argue that the district court should have enjoined the arbitration proceedings, in part because Defendants, ...
Grigsby & Assocs., Inc. v. M Secs. Inv., 2011 U.S. App. LEXIS 25217 (11th Cir. Dec. 20, 2011): This case is about whether the district court should have permitted a dispute to be arbitrated. Plaintiffs, Grigsby & Associates, Inc., argue…
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Inherent Power — Bad Faith of Counsel in Flagrantly Violating In Limine Order Attributed to Client — Exclusion of Expert Testimony as Sanction Upheld

O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., Ltd., 2011 U.S. App. LEXIS 23125 (Fed. Cir. Nov. 18, 2011) (Background: The defense violated an in limine order that it not refer to the fact that the plaintiff was headquartered in the Cayman Islands. On voir dire, defense counsel asked: “Now, are there any of you who have a problem with a compa ...
O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., Ltd., 2011 U.S. App. LEXIS 23125 (Fed. Cir. Nov. 18, 2011) (Background: The defense violated an in limine order that it not refer to the fact that the plaintiff was headquartered…
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Sarbanes-Oxley’s Addition of 18 U.S.C. § 1513(e) as a Predicate Authorizes RICO Claim for Firing as a Result of Whistleblowing Where Retaliation Linked to Racketeering Activity — Offering Raise + Confi + Release Suffices

DeGuelle v. Camilli, 2011 U.S. App. LEXIS 24868 (7th Cir. Dec. 15, 2011): Michael J. DeGuelle, a tax employee of S.C. Johnson & Son, Inc., was terminated after reporting an alleged tax fraud scheme to the company and federal law enforcement agencies. Following his termination, DeGuelle filed suit asserting two civil claims under the Ra ...
DeGuelle v. Camilli, 2011 U.S. App. LEXIS 24868 (7th Cir. Dec. 15, 2011): Michael J. DeGuelle, a tax employee of S.C. Johnson & Son, Inc., was terminated after reporting an alleged tax fraud scheme to the company and federal law…
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Sanctions — Requiring Attorney to Notify any Court within Circuit before Which He Appears in Next Year of Sanctions Imposed in This Case — Leaving Open Other Remedies If Monetary Sanction Not Paid within 60 Days

From Gallop v. Cheney, 2011 U.S. App. LEXIS 20862 (2d Cir. Oct. 14, 2011) — imposing sanctions under § 1927, Rule 38, and the inherent power of the Court: *** (2) Gallop [client] is hereby ADMONISHED that the submission of future frivolous filings may result in sanctions. (3) Dennis Cunningham, Mustapha Ndanusa, and Wi ...
From Gallop v. Cheney, 2011 U.S. App. LEXIS 20862 (2d Cir. Oct. 14, 2011) — imposing sanctions under § 1927, Rule 38, and the inherent power of the Court: *** (2) Gallop [client] is hereby ADMONISHED that the submission of…
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Non-Party May Not Intervene to Seek Relief Identical to That Already Being Sought by Party — Mere Fact That Lawsuit May Impede Non-Party’s Ability to Recover in Separate Suit Insufficient Grounds to Intervene — First-to File Rule

Worthington v. Bayer Healthcare LLC, 2011 U.S. Dist. LEXIS 144369 (D.N.J. Dec. 15, 2011): In these purported class actions brought in the above-captioned matters, Robert Worthington, Dino Rikos, and Troy Yuncker ("Plaintiffs") allege that Bayer Heathcare LLC ("Bayer") deceptively advertised and marketed several of Bayer's colon health p ...
Worthington v. Bayer Healthcare LLC, 2011 U.S. Dist. LEXIS 144369 (D.N.J. Dec. 15, 2011): In these purported class actions brought in the above-captioned matters, Robert Worthington, Dino Rikos, and Troy Yuncker (“Plaintiffs”) allege that Bayer Heathcare LLC (“Bayer”) deceptively advertised…
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May District Court in District in Which Subpoena Issues Remit Motion to Quash to Court Presiding over Underlying Litigation? Circuit Split

Nat’l Benefit Programs, Inc. v. Express Scripts, Inc., 2011 U.S. Dist. LEXIS 137946 (E.D. Mo. Dec. 1, 2011): There is a split in the Circuits regarding whether the court sitting in the district where the subpoena issued may properly exercise its discretion to "remit" a motion to quash for ruling by the court where the underlying li ...
Nat’l Benefit Programs, Inc. v. Express Scripts, Inc., 2011 U.S. Dist. LEXIS 137946 (E.D. Mo. Dec. 1, 2011): There is a split in the Circuits regarding whether the court sitting in the district where the subpoena issued may properly exercise…
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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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