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

Treating Physician Must Provide 26(a)(2)(B) Expert Report If Opinions Extend Beyond Those Formed during Treatment — Presumptively Mandatory Sanctions — Particularly Broad Discretion as to Type

From Ghiorzi v Whitewater Pools & Spas, Inc., 2011 U.S. Dist. LEXIS 125329 (D. Nev. Oct. 27, 2011): Applying Rule 37(a)(3) and (c)(1) compels the conclusion that an expert's trial testimony should be automatically excluded if a party fails to strictly comply with the requirements of Rule 26(a)(2)(B) unless the court finds that there was ...
From Ghiorzi v Whitewater Pools & Spas, Inc., 2011 U.S. Dist. LEXIS 125329 (D. Nev. Oct. 27, 2011): Applying Rule 37(a)(3) and (c)(1) compels the conclusion that an expert’s trial testimony should be automatically excluded if a party fails to…
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Arbitration — State of Circuit Split as to Whether Hall Street Eliminates Manifest Disregard as a Ground for Vacating Arbitration Award

From Abbott v. Law Office of Patrick J. Mulligan, 2011 U.S. App. LEXIS 19468 (10th Cir. Sept. 21, 2011): In the wake of Hall Street, the circuits have split as to whether manifest disregard of the law is still a viable ground on which to overturn an arbitration award. According to the Second, Sixth (in an unpublished decision) and ...
From Abbott v. Law Office of Patrick J. Mulligan, 2011 U.S. App. LEXIS 19468 (10th Cir. Sept. 21, 2011): In the wake of Hall Street, the circuits have split as to whether manifest disregard of the law is still a…
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Breadth of Arbitral Immunity — Trivial Differences between Rule 11 Motion as Served and as Filed Do Not Vitiate It or Require Second Safe Harbor Period — Permitted Inference vs. Unpermitted Speculation

Bletas v. Deluca, 2011 U.S. Dist. LEXIS 133132 (S.D.N.Y. Nov. 14, 2011): Pro se plaintiffs ... (collectively, the "former franchisees") former franchisees of Subway International B.V. ("SIBV") who operated sandwich shops in Greece, and plaintiff [X], a Greek attorney who represented some of the plaintiffs in arbitration proceedings, bri ...
Bletas v. Deluca, 2011 U.S. Dist. LEXIS 133132 (S.D.N.Y. Nov. 14, 2011): Pro se plaintiffs … (collectively, the “former franchisees”) former franchisees of Subway International B.V. (“SIBV”) who operated sandwich shops in Greece, and plaintiff [X], a Greek attorney who…
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Does a Political Subdivision Have Standing to Sue Its Parent State? Circuit Split

City of Hugo v. Nichols, 656 F.3d 1251 (10th Cir. 2011) (Matheson, J., dissenting): Footnote 4. There is a circuit split on the political subdivision standing doctrine. The Ninth Circuit appears to be alone in adopting a per se rule against a political subdivision having standing to sue its parent state. See City of S. Lake Tah ...
City of Hugo v. Nichols, 656 F.3d 1251 (10th Cir. 2011) (Matheson, J., dissenting): Footnote 4. There is a circuit split on the political subdivision standing doctrine. The Ninth Circuit appears to be alone in adopting a per se rule…
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When Emails Constitute Business Records — Absence of Testimony from Sender Not Preclusive

Penberg v. HealthBridge Mgmt., 2011 U.S. Dist. LEXIS 119564 (E.D.N.Y. Oct. 17, 2011): b. Internet Leak HealthBridge's second basis for alleging a breach of fiduciary duty is based on the assertion that confidential HealthBridge documents were leaked onto the internet through a file-sharing program, Lime Wire, that was installed on ...
Penberg v. HealthBridge Mgmt., 2011 U.S. Dist. LEXIS 119564 (E.D.N.Y. Oct. 17, 2011): b. Internet Leak HealthBridge’s second basis for alleging a breach of fiduciary duty is based on the assertion that confidential HealthBridge documents were leaked onto the internet…
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RICO Relatedness

United States v. Knight, 2011 U.S. App. LEXIS 22054 (10th Cir. Nov. 1, 2011): A. Pattern of Racketeering Jury Instruction *** A racketeering violation has five basic elements. The district court, without objection from Knight, properly instructed the jury that to establish a RICO violation, the government must prove: ...
United States v. Knight, 2011 U.S. App. LEXIS 22054 (10th Cir. Nov. 1, 2011): A. Pattern of Racketeering Jury Instruction *** A racketeering violation has five basic elements. The district court, without objection from Knight, properly instructed the jury that…
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Identity of Confidential Informants in Securities Class Action Are Not Protected from Disclosure as Work Product — As Distinct from Request for All Witnesses Interviewed, Which Seeks Protected Information

Plumbers & Pipefitters Local Union No. 630 Pension Annuity Trust Fund v. Arbitron, Inc., 2011 U.S. Dist. LEXIS 131091 (S.D.N.Y. Nov. 14, 2011): This decision addresses a discovery dispute. Defendant Arbitron, Inc., moves for an order directing the lead plaintiff, Plumbers and Pipefitters Local Union No. 630 Pension-Annuity Trust Fund ( ...
Plumbers & Pipefitters Local Union No. 630 Pension Annuity Trust Fund v. Arbitron, Inc., 2011 U.S. Dist. LEXIS 131091 (S.D.N.Y. Nov. 14, 2011): This decision addresses a discovery dispute. Defendant Arbitron, Inc., moves for an order directing the lead plaintiff,…
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No Plain Error Possible Where Issue Is Unresolved in Circuit and Other Circuits Are Split

United States v. Van Pelt, 2011 U.S. App. LEXIS 21217 (3d Cir. Oct. 21, 2011): Van Pelt concedes, as he must, that we review for plain error because he did not object at trial to any of the issues he presents on appeal. See Fed. R. Crim. P. 52(b). To meet this standard, Van Pelt must show: (1) error, (2) that was "clear or ...
United States v. Van Pelt, 2011 U.S. App. LEXIS 21217 (3d Cir. Oct. 21, 2011): Van Pelt concedes, as he must, that we review for plain error because he did not object at trial to any of the issues he…
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Mandatory Withdrawal of the Reference Where “Substantial and Material Issues” of Non-Bankruptcy Federal Law — and Especially Issues of First Impression — Are Involved

SIPC v. Bernard L. Madoff Inv. Secs. LLC, 454 B.R. 307 (S.D.N.Y. 2011): JPMorgan Chase & Co., JPMorgan Chase Bank, N.A., J.P. Morgan Securities LLC, and J.P. Morgan Securities Ltd. (collectively, "JPMorgan") have moved for an order under 28 U.S.C. § 157(d) withdrawing the reference of this action to the bankruptcy court. Irving H. Picar ...
SIPC v. Bernard L. Madoff Inv. Secs. LLC, 454 B.R. 307 (S.D.N.Y. 2011): JPMorgan Chase & Co., JPMorgan Chase Bank, N.A., J.P. Morgan Securities LLC, and J.P. Morgan Securities Ltd. (collectively, “JPMorgan”) have moved for an order under 28 U.S.C.…
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Is a District Court Error of Law Subject to Correction via Rule 60(b)(1) or Only on Appeal? A State Court Error of Law Pre-Removal? Circuit Split

Lindsey v. Highwoods Realty LP, 2011 U.S. Dist. LEXIS 127860 (E.D. Va. Nov. 4, 2011): On July 15, 2010, Plaintiff filed a Motion to Amend Complaint with the Circuit Court for the City of Richmond requesting that the style of the original complaint be amended to include Western as a named defendant. Plaintiff also requested that the amend ...
Lindsey v. Highwoods Realty LP, 2011 U.S. Dist. LEXIS 127860 (E.D. Va. Nov. 4, 2011): On July 15, 2010, Plaintiff filed a Motion to Amend Complaint with the Circuit Court for the City of Richmond requesting that the style of…
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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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