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

State Does Not Waive Sovereign Immunity by Removing Case to Federal Court unless Removal Confers Unfair Advantage — Circuit Split

Bergemann v. R.I. Dep’t of Envt’l Mgmt., 2011 U.S. App. LEXIS 25148 (1st Cir. Dec. 20, 2011): This appeal poses a question that has divided the circuits. The question, which is a matter of first impression for this court, is whether a state waives its sovereign immunity to a pleaded claim by removing that claim to the federal court ...
Bergemann v. R.I. Dep’t of Envt’l Mgmt., 2011 U.S. App. LEXIS 25148 (1st Cir. Dec. 20, 2011): This appeal poses a question that has divided the circuits. The question, which is a matter of first impression for this court, is…
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RICO — Financial Injury Wholly Derivative of Personal Injury ≠ Injury to Business or Property — Circuit Split as to Whether Certain Pecuniary Losses from Personal Injuries Confer RICO Standing

Alexander v Boone Hosp. Ctr., 2011 U.S. Dist. LEXIS 145354 (W.D. Mo. Dec. 19, 2011): On April 16, 2010, Plaintiff filed this lawsuit alleging receipt of a defective pacemaker manufactured by former defendant Medtronic, Inc., and implanted at Boone Hospital Center in 2007. *** Plaintiff brings two counts against current Defendants ...
Alexander v Boone Hosp. Ctr., 2011 U.S. Dist. LEXIS 145354 (W.D. Mo. Dec. 19, 2011): On April 16, 2010, Plaintiff filed this lawsuit alleging receipt of a defective pacemaker manufactured by former defendant Medtronic, Inc., and implanted at Boone Hospital…
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Securities — Circuit Split as to Whether Plaintiff or Defendant Must Show Control Person’s Good/Bad Faith and Inducement, Vel Non, of Primary Violation under Section 20(a)

Poptech, LP v. Stewardship Credit Arbitrage Fund, LLC, 792 F. Supp. 2d 328 (D. Conn. 2011): Section 20(a) [of the Exchange Act, 15 U.S.C. § 78t(a),] provides that a controlling person is liable unless the defendant acted in good faith and did not induce the primary violation. See 15 U.S.C. § 78t(a). But Section 20(a) does ...
Poptech, LP v. Stewardship Credit Arbitrage Fund, LLC, 792 F. Supp. 2d 328 (D. Conn. 2011): Section 20(a) [of the Exchange Act, 15 U.S.C. § 78t(a),] provides that a controlling person is liable unless the defendant acted in good faith…
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Removal — When Does a State Court Complaint that Fails to Recite a Damages Number over $75,000 Trigger § 1446(b)’s 30-Day Period? Caselaw Split

Napier v. Humana Marketpoint, Inc., 2011 U.S. Dist. LEXIS 139114 (N.D. Tex. Dec. 1, 2011): In Chapman [v. Powermatic, Inc., 939 F.2d 160], the Fifth Circuit held that a plaintiff's original complaint triggers 28 U.S.C. § 1446(b)'s thirty-day clock "only when [the] pleading affirmatively reveals on its face that the plaintiff is see ...
Napier v. Humana Marketpoint, Inc., 2011 U.S. Dist. LEXIS 139114 (N.D. Tex. Dec. 1, 2011): In Chapman [v. Powermatic, Inc., 939 F.2d 160], the Fifth Circuit held that a plaintiff’s original complaint triggers 28 U.S.C. § 1446(b)’s thirty-day clock “only…
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Simple Mistake, Corrected when Realized, Forms No Ground for Rule 11 Sanctions

Boone v. JP Morgan Chase Bank, N.A., 2011 U.S. App. LEXIS 23813 (11th Cir. Nov. 30, 2011): We review a district court's decision regarding sanctions under 28 U.S.C. § 1927 and Rule 11 for an abuse of discretion. Nicholson v. Shafe, 558 F.3d 1266, 1270 (11th Cir. 2009); Jones v. Int'l Riding Helmets, Ltd., 49 F.3d 692, 694 (11th Cir. 19 ...
Boone v. JP Morgan Chase Bank, N.A., 2011 U.S. App. LEXIS 23813 (11th Cir. Nov. 30, 2011): We review a district court’s decision regarding sanctions under 28 U.S.C. § 1927 and Rule 11 for an abuse of discretion. Nicholson v.…
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Inherent Power Sanctions against Third Party Entered after End of Case on Merits Is Dispositive and Requires De Novo Review of Magistrate Judge’s Decision

Reddick v. White, 2011 U.S. App. LEXIS 23937 (4th Cir. Dec. 1, 2011): A magistrate judge's power is derived from 28 U.S.C. § 636, which provides two general types of referrals by a district court. Section 636(b)(1)(A) provides that a district court may "designate a magistrate judge to hear and determine any pretrial matter pending ...
Reddick v. White, 2011 U.S. App. LEXIS 23937 (4th Cir. Dec. 1, 2011): A magistrate judge’s power is derived from 28 U.S.C. § 636, which provides two general types of referrals by a district court. Section 636(b)(1)(A) provides that a…
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Non-Pretextual, Compensatory Payment to Former Employee for Time as Deponent and in Preparation Ethical, As Is Representation by Former Employer’s Counsel

Chicago Ins. Co. v. Capwill, 2011 U.S. Dist. LEXIS 143333 (N.D. Ohio Dec. 13, 2011): [C]ounsel for the defendants ..., alleges that [plaintiff’s counsel] improperly paid a witness and attempted to influence his testimony in violation of 18 U.S.C. §§ 201(b)(3), (c)(2), O.R.C. § 2921.02(E), and Rule 3.4 of the Ohio Rules of Professio ...
Chicago Ins. Co. v. Capwill, 2011 U.S. Dist. LEXIS 143333 (N.D. Ohio Dec. 13, 2011): [C]ounsel for the defendants …, alleges that [plaintiff’s counsel] improperly paid a witness and attempted to influence his testimony in violation of 18 U.S.C. §§…
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Suspension by State Authorities Does Not Disqualify Lawyer from Appearing in Federal Court

Jimenez v. Brazil Ethanol, Inc., 2011 U.S. Dist. LEXIS 137771 (S.D.N.Y. Nov. 29, 2011): ... Plaintiff's attorney is currently suspended from the practice of law in New York State. ... By an order issued by the Committee on Grievances of the Southern District of New York, [Plaintiff's attorney], also previously suspended from ...
Jimenez v. Brazil Ethanol, Inc., 2011 U.S. Dist. LEXIS 137771 (S.D.N.Y. Nov. 29, 2011): … Plaintiff's attorney is currently suspended from the practice of law in New York State. … By an order issued by the Committee on Grievances of…
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Caselaw Split as to Whether to Permit Discovery of Financial Information Relevant to a Determination of Punitive Damages Prior to Summary Judgment

Pasternak v. Kim, 275 F.R.D. 461 (S.D.N.Y. 2011): The question then becomes whether the time is right for the discovery Pasternak seeks. As Magistrate Judge Francis recently noted, "[c]ourts in this circuit are split on the issue of allowing pretrial disclosure of financial information relevant to a determination of punitive damages. ...
Pasternak v. Kim, 275 F.R.D. 461 (S.D.N.Y. 2011): The question then becomes whether the time is right for the discovery Pasternak seeks. As Magistrate Judge Francis recently noted, “[c]ourts in this circuit are split on the issue of allowing pretrial…
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Only U.S. Citizenship of Dual Citizen Counts for Diversity — No General Duty under Rule 11 to Withdraw (Just Not to Reassert), but Failure to Withdraw within Safe Harbor Exposes Target to Costs of Motion

Fuerst v. Fuerst, 2011 U.S. Dist. LEXIS 141873 (E.D.N.Y. Dec. 9, 2011): Wolfgang Fuerst ("Wolfgang" or "the Plaintiff") commenced this action against his now former wife Hannelore Fuerst ("Hannelore" or "the Defendant") seeking economic and emotional damages based on her alleged misconduct during their divorce proceeding. The Defendant ...
Fuerst v. Fuerst, 2011 U.S. Dist. LEXIS 141873 (E.D.N.Y. Dec. 9, 2011): Wolfgang Fuerst (“Wolfgang” or “the Plaintiff”) commenced this action against his now former wife Hannelore Fuerst (“Hannelore” or “the Defendant”) seeking economic and emotional damages based on her…
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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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