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

Simple Mutual Releases of Parties Do Not Release Sanctions Liability of Counsel — Ethics Implications of Negotiating a Release of Sanctions Exposure

Ferguson v. Valero Energy Corp., 2011 U.S. App. LEXIS 24167 (3d Cir. Dec. 6, 2011): John Ferguson died tragically from nitrogen asphyxiation while working as a boilermaker at an oil refinery. A wrongful death and survival action ensued against Valero Energy Corporation and Premcor Refining Group, Inc. The District Court made several evid ...
Ferguson v. Valero Energy Corp., 2011 U.S. App. LEXIS 24167 (3d Cir. Dec. 6, 2011): John Ferguson died tragically from nitrogen asphyxiation while working as a boilermaker at an oil refinery. A wrongful death and survival action ensued against Valero…
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When an Unexplained Sanctions Ruling Does, or Does Not, Suffice to Permit Meaningful Appellate Review

Two Decisions 1. Arugu v. City of Plantation, 2011 U.S. App. LEXIS 22647 (11th Cir. Nov. 8, 2011) (Rule 11 and § 1927 sanctions): We review for abuse of discretion a district court's decision to deny sanctions, costs, and attorney's fees. *** "A district court abuses its discretion if it applies an incor ...
Two Decisions 1. Arugu v. City of Plantation, 2011 U.S. App. LEXIS 22647 (11th Cir. Nov. 8, 2011) (Rule 11 and § 1927 sanctions): We review for abuse of discretion a district court’s decision to deny sanctions, costs, and attorney’s…
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Affidavit Authenticating Website Evidence Must State that Affiant Visited Site and Screen Shots Accurately Portray What Witness Saw — Authentication of Internet Archive Evidence

Sam’s Riverside, Inc. v. Intercon Solutions, Inc., 790 F. Supp. 2d 965 (S.D. Iowa 2011): An affidavit used to oppose a motion for summary judgment "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant . . . is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)( ...
Sam’s Riverside, Inc. v. Intercon Solutions, Inc., 790 F. Supp. 2d 965 (S.D. Iowa 2011): An affidavit used to oppose a motion for summary judgment “must be made on personal knowledge, set out facts that would be admissible in evidence,…
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Reasonable Application of Governing Legal Standard to the Facts Satisfies Abuse-of-Discretion Standard

Doe v. Elmbrook School Dist., 658 F.3d 710 (7th Cir. 2011): "An abuse of discretion occurs if the district court reaches erroneous conclusions of law or premises its holding on a clearly erroneous assessment of the evidence." Gastineau v. Wright, 592 F.3d 747, 748 (7th Cir. 2010) (internal quotation marks omitted). In Pruitt v. Mote, 503 ...
Doe v. Elmbrook School Dist., 658 F.3d 710 (7th Cir. 2011): “An abuse of discretion occurs if the district court reaches erroneous conclusions of law or premises its holding on a clearly erroneous assessment of the evidence.” Gastineau v. Wright,…
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Securities — Required Elements of Proof on Class Certification — Must Plaintiff Prove Materiality? Circuit Split

From Conn. Retirement Plans & Trust Funds v. Amgen, 2011 U.S. App. LEXIS 22540 (9th Cir. Nov. 8, 2011): To obtain class certification in a 10b-5 securities fraud case, the plaintiff, as required by Federal Rule of Civil Procedure 23(b)(3), must convince the district court that the element of reliance is common to the class. The Supreme ...
From Conn. Retirement Plans & Trust Funds v. Amgen, 2011 U.S. App. LEXIS 22540 (9th Cir. Nov. 8, 2011): To obtain class certification in a 10b-5 securities fraud case, the plaintiff, as required by Federal Rule of Civil Procedure 23(b)(3),…
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Appeal from Denial of Motion to Compel Arbitration Does Not Divest District Court of Jurisdiction to Proceed to Merits — Circuit Split

Weingarten Realty Inv. v. Miller, 2011 U.S. App. LEXIS 23649 (5th Cir. Nov. 1, 2011): Whether an appeal from a denial of a motion to compel arbitration divests the district court of jurisdiction to proceed to the merits is the subject of a circuit split. The Second and Ninth Circuits have held that a stay is not automatic. ...
Weingarten Realty Inv. v. Miller, 2011 U.S. App. LEXIS 23649 (5th Cir. Nov. 1, 2011): Whether an appeal from a denial of a motion to compel arbitration divests the district court of jurisdiction to proceed to the merits is the…
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Order Stating that Counsel’s Conduct Warranted Rule 11 Sanctions but Expressly Declining to Impose Any Is Not Appealable

Omega Claims Solutions, Inc. v. N’Site Solutions, Inc., 2011 U.S. App. LEXIS 23282 (5th Cir. Nov. 18, 2011): At the end of that order [confirming an arbitration award], the district court stated about Omega's counsel, Scott Rothenberg: As a final matter, and for the reasons discussed above, Omega has forced N'S ...
Omega Claims Solutions, Inc. v. N’Site Solutions, Inc., 2011 U.S. App. LEXIS 23282 (5th Cir. Nov. 18, 2011): At the end of that order [confirming an arbitration award], the district court stated about Omega’s counsel, Scott Rothenberg: As a final…
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Reconsideration under Rule 60(b)(1) — Circuit Split as to When Mistake, Inadvertence, Surprise or Excusable Neglect by the Court Itself Permits Relief from Judgment

Peak v. Ellis, 2011 Bankr. LEXIS 4322 (9th Cir. BAP Aug. 1, 2011): Peaks contend the bankruptcy court abused its discretion in denying their Motion to Reconsider because it clearly erred by not considering less drastic sanctions, citing FRCP 60(b)(1). While the circuits are split, the Ninth Circuit permits FRCP 60(b)(1) relief from j ...
Peak v. Ellis, 2011 Bankr. LEXIS 4322 (9th Cir. BAP Aug. 1, 2011): Peaks contend the bankruptcy court abused its discretion in denying their Motion to Reconsider because it clearly erred by not considering less drastic sanctions, citing FRCP 60(b)(1).…
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Does Copyright Protection Extend to All Forms of Printed Expression? Case Law Split (Halloween Opinion)

From Liberty Media Holdings, LLC v. Swarm Sharing Has File, 2011 U.S. Dist. LEXIS 125512 (D. Mass. Oct. 31, 2011) (Young, J.): It is undisputed that Liberty Media is a distributor of lawful, albeit hardcore, pornography, and the Motion Picture is itself hardcore pornography. Notably, it is a matter of first impression in the First Ci ...
From Liberty Media Holdings, LLC v. Swarm Sharing Has File, 2011 U.S. Dist. LEXIS 125512 (D. Mass. Oct. 31, 2011) (Young, J.): It is undisputed that Liberty Media is a distributor of lawful, albeit hardcore, pornography, and the Motion Picture…
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Ghostwriting Papers for Pro Se Litigants Does Not Violate Ethical Rules — And Probably Not Rule 11

In re Liu, 2011 U.S. App. LEXIS 23326 (2d Cir. Nov. 22, 2011): This Court's Committee on Attorney Admissions and Grievances ("the Committee") has recommended that Fengling Liu, an attorney admitted to the bar of this Court, be publicly reprimanded. *** In its report, the Committee concluded that there was clear and convincing evid ...
In re Liu, 2011 U.S. App. LEXIS 23326 (2d Cir. Nov. 22, 2011): This Court’s Committee on Attorney Admissions and Grievances (“the Committee”) has recommended that Fengling Liu, an attorney admitted to the bar of this Court, be publicly reprimanded.…
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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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