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

Split as to Whether Magistrate Judge May Order § 1782 Discovery — Deposition and Documents May Be Compelled from Expert for Party to BIT Arbitration under § 1782

From In re Application of Rep. of Ecuador, 2010 U.S. Dist. LEXIS 143796 (N.D. Fla. Aug. 24, 2010): This is an application for an order pursuant to 28 U.S.C. § 1782(a) to issue a subpoena to Robert E. Hinchee, Ph.D., for a deposition and production of documents for use in a foreign proceeding, that is, Chevron Corporation and Texaco Pet ...
From In re Application of Rep. of Ecuador, 2010 U.S. Dist. LEXIS 143796 (N.D. Fla. Aug. 24, 2010): This is an application for an order pursuant to 28 U.S.C. § 1782(a) to issue a subpoena to Robert E. Hinchee, Ph.D.,…
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Offer to Settle Class Action for Value of Lead Plaintiff’s Claim after Class Certification Motion Filed Does Not Moot Action or Subsequent Action against Affiliate of First Defendant That Should Have Been Named in First Action

From Brodsky v. HumanaDental Ins. Co., 2011 U.S. Dist. LEXIS 117652 (N.D. Ill. Oct. 12, 2011 From July 2008 until December 2009, plaintiff Lawrence Brodsky ("Brodsky") pursued a class action lawsuit ("2008 Lawsuit") against Humana, Inc. ("Humana"), the parent company of HumanaDental Insurance Company ("Humana Dental"), alleging violatio ...
From Brodsky v. HumanaDental Ins. Co., 2011 U.S. Dist. LEXIS 117652 (N.D. Ill. Oct. 12, 2011 From July 2008 until December 2009, plaintiff Lawrence Brodsky (“Brodsky”) pursued a class action lawsuit (“2008 Lawsuit”) against Humana, Inc. (“Humana”), the parent company…
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Removal — Third Circuit Adopts Later-Served Defendant Rule — Circuit Split

From Delalla v. Hanover Ins., 2011 U.S. App. LEXIS 20651 (3d Cir. 2011): In order to remove a lawsuit filed in state court to a federal district court under the federal removal statute, 28 U.S.C. §§ 1441, 1446, a defendant must file a notice of removal within thirty days of the date on which the plaintiff serves "the defendant." Cour ...
From Delalla v. Hanover Ins., 2011 U.S. App. LEXIS 20651 (3d Cir. 2011): In order to remove a lawsuit filed in state court to a federal district court under the federal removal statute, 28 U.S.C. §§ 1441, 1446, a defendant…
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Rule 11 (or 9011) Sanctions — Misstatements or Omissions of “Litigation Facts” — Limits on Duty to Investigate

From In re Brent, 2011 Bankr. LEXIS 3668 (Bankr. N.D. Ill. Sept. 29, 2011): Timothy K. Liou is one of the most active consumer bankruptcy attorneys in this district, filing nearly 8,000 cases from mid-1996 to the present. More than once, though, Liou's efforts to get paid have drawn the court's attention and resulted in sanctions. Now he f ...
From In re Brent, 2011 Bankr. LEXIS 3668 (Bankr. N.D. Ill. Sept. 29, 2011): Timothy K. Liou is one of the most active consumer bankruptcy attorneys in this district, filing nearly 8,000 cases from mid-1996 to the present. More than…
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Arbitration — Circuit Split as to Whether Party Asserting Waiver of Right to Arbitrate Must Show Prejudice

From Erdman Co. v. Phoenix Land & Acquisition, LLC, 650 F.3d 1115 (8th Cir. 2011): [A]rty may waive its contractual right to arbitrate. See Lewallen, 487 F.3d at 1090. Although the issue of waiver arises under a variety of arbitration agreements and in a variety of procedural settings, we apply a uniform three-factor test in determi ...
From Erdman Co. v. Phoenix Land & Acquisition, LLC, 650 F.3d 1115 (8th Cir. 2011): [A]rty may waive its contractual right to arbitrate. See Lewallen, 487 F.3d at 1090. Although the issue of waiver arises under a variety of arbitration…
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Primary Jurisdiction — Factors — Stay vs. Dismissal of Federal Action Pending Agency Action — Duration

From All One God Faith, Inc. v. Hain Celestial Group, Inc., 2011 U.S. Dist. LEXIS 108269 (N.D. Cal. Sept. 20, 2011): A. Primary Jurisdiction Doctrine The primary jurisdiction doctrine allows the Court, "under appropriate circumstances, [to] determine that the initial decisionmaking responsibility should be performed by the relev ...
From All One God Faith, Inc. v. Hain Celestial Group, Inc., 2011 U.S. Dist. LEXIS 108269 (N.D. Cal. Sept. 20, 2011): A. Primary Jurisdiction Doctrine The primary jurisdiction doctrine allows the Court, “under appropriate circumstances, [to] determine that the initial…
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Rule 701 vs. 702 — Lay vs. Expert Opinion — Accountant’s Testimony as to Lost Profits of Client = Lay Opinion — Valuation Distinguished — Business vs. Land Value

Ryan Dev. Co., L.C. v. Indiana Lumbermens Mut. Ins. Co., 2011 U.S. Dist. LEXIS 123524 (D. Kan. Oct. 25, 2011): Defendant[’s] next argument is that several of Plaintiff's witnesses should not have been allowed to testify because their testimony was not lay opinion but expert testimony. Defendant first raised the issue in its motion in ...
Ryan Dev. Co., L.C. v. Indiana Lumbermens Mut. Ins. Co., 2011 U.S. Dist. LEXIS 123524 (D. Kan. Oct. 25, 2011): Defendant[’s] next argument is that several of Plaintiff’s witnesses should not have been allowed to testify because their testimony was…
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Writ of Mandamus vs. Writ of Prohibition — Advisory vs. Supervisory Mandamus and, Presumably, Prohibition

From United States v. Pleau, 2011 U.S. App. LEXIS 20734 (1st Cir. Oct. 13, 2011): The All Writs Act, 28 U.S.C. § 1651(a), empowers federal courts to issue extraordinary (or "prerogative") writs where "necessary or appropriate in aid of their respective jurisdictions." Writs of mandamus instruct lower courts to take certain specifie ...
From United States v. Pleau, 2011 U.S. App. LEXIS 20734 (1st Cir. Oct. 13, 2011): The All Writs Act, 28 U.S.C. § 1651(a), empowers federal courts to issue extraordinary (or “prerogative”) writs where “necessary or appropriate in aid of their…
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Plaintiff Who Voluntarily Dismisses Action under Rule 41(a)(1)(A) May Have No Right to Relief under 60(b) — Tactical Decision Based on Misinterpretation of Rules Is Not Inadvertent or Type of Mistake 60(b) Addresses

From Nelson v. Napolitano, 2011 U.S. App. LEXIS 19033 (7th Cir. Sept. 15, 2011): Nelson, Decatur, Lawson and Carter were Federal Air Marshals. They charged DHS with race- and age-based discrimination, as well as retaliation against certain of the plaintiffs who complained about discriminatory practices. Approximately two years after fil ...
From Nelson v. Napolitano, 2011 U.S. App. LEXIS 19033 (7th Cir. Sept. 15, 2011): Nelson, Decatur, Lawson and Carter were Federal Air Marshals. They charged DHS with race- and age-based discrimination, as well as retaliation against certain of the plaintiffs…
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No Federal Subject Matter Jurisdiction Exists over Declaratory Judgment Brought by One Private Party against Another That Stands in the Shoes of a Public Official

Loyd’s Aviation, Inc. v. Center for Environmental Health, 2011 U.S. Dist. LEXIS 121134 (E.D. Cal. Oct. 19, 2011): Plaintiffs are a group of small businesses that distribute lead-containing aviation fuel ("Avgas") to air carriers and other aircraft operators at airports across California and the rest of the United States. On June 30, 2 ...
Loyd’s Aviation, Inc. v. Center for Environmental Health, 2011 U.S. Dist. LEXIS 121134 (E.D. Cal. Oct. 19, 2011): Plaintiffs are a group of small businesses that distribute lead-containing aviation fuel (“Avgas”) to air carriers and other aircraft operators at airports…
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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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