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

Failure to Move to Vacate, Modify or Correct Arbitration Award within 90 Days of Receipt Mandates Confirmation under FAA

From Desousa v. Jabiru USA Sport Aircraft, LLC, 2011 U.S. Dist. LEXIS 101046 (E.D. Tenn. Sept. 6, 2011): Before the Court is Plaintiffs Motion for "Relief from Final Order, Reconsider, Vacate Award/Judgement & Reopen Case" ("Motion to Vacate Award") [Court Doc. 19], filed November 17, 2010. *** After Defendants applied to thi ...
From Desousa v. Jabiru USA Sport Aircraft, LLC, 2011 U.S. Dist. LEXIS 101046 (E.D. Tenn. Sept. 6, 2011): Before the Court is Plaintiffs Motion for “Relief from Final Order, Reconsider, Vacate Award/Judgement & Reopen Case” (“Motion to Vacate Award”) [Court…
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RICO — Outsiders Deemed to Operate and Manage Insurance Company by Filing False Claims Even Though No Insiders Involved

Puerto Rico Am. Ins. Co. v. Burgos, 2011 U.S. Dist. LEXIS 112378 (D. P.R. Sept. 30, 2011): This protracted litigation dates back to 2001, when several insurance companies initiated a massive civil action against multiple defendants under the Racketeer Influenced and Corrupt Organizations Act ("RICO"),18 U.S.C. §§ 1961-1969. Since 2001, ...
Puerto Rico Am. Ins. Co. v. Burgos, 2011 U.S. Dist. LEXIS 112378 (D. P.R. Sept. 30, 2011): This protracted litigation dates back to 2001, when several insurance companies initiated a massive civil action against multiple defendants under the Racketeer Influenced…
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Experts — Good Quotes

From Citizens Prop. Ins. Corp. v. Simkar LLC, 2011 U.S. Dist. LEXIS 109208 (M.D. Fla. Sept. 26, 2011): Importantly, although rulings on admissibility under Daubert inherently require the trial court to conduct an exacting analysis of the proffered expert's methodology, it is not the district court's role to make ultimate conclusions ...
From Citizens Prop. Ins. Corp. v. Simkar LLC, 2011 U.S. Dist. LEXIS 109208 (M.D. Fla. Sept. 26, 2011): Importantly, although rulings on admissibility under Daubert inherently require the trial court to conduct an exacting analysis of the proffered expert’s methodology,…
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Daubert and Class Certification — Impact of Supreme Court’s Wal-Mart Dicta

From In re Taco Bell Wage & Hour Actions, 2011 U.S. Dist. LEXIS 109169 (E.D. Cal. Sept. 26, 2011): The Supreme Court recently suggested in dicta that Daubert should be applied to expert testimony at the class certification stage. See Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2553-2554 (2011) ("The District Court concluded that Da ...
From In re Taco Bell Wage & Hour Actions, 2011 U.S. Dist. LEXIS 109169 (E.D. Cal. Sept. 26, 2011): The Supreme Court recently suggested in dicta that Daubert should be applied to expert testimony at the class certification stage. See…
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Forum Non Conveniens: Where Derivative Action Involves Few Shareholders of Non-U.S. Corporation, Less Deference Due Plaintiffs’ Choice of Forum — Need to Apply New Corporation Law of Foreign Country Augurs in Favor of Dismissal

From In re BP Shareholder Deriv. Litig., 2011 U.S. Dist. LEXIS 104817 (S.D. Tex. Sept. 15, 2011): Defendants argue that the need to apply this recently enacted U.K. statute, which substantively alters directors' duties, weighs strongly in favor of proceeding with the case in England. Indeed, they argue, litigating this case before the En ...
From In re BP Shareholder Deriv. Litig., 2011 U.S. Dist. LEXIS 104817 (S.D. Tex. Sept. 15, 2011): Defendants argue that the need to apply this recently enacted U.K. statute, which substantively alters directors’ duties, weighs strongly in favor of proceeding…
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Personal Jurisdiction under RICO — Agency, “Transacts His Affairs,” Conspiracy

From Pincione v. D’Alfonso, 2011 U.S. Dist. LEXIS 103944 (S.D.N.Y. Sept. 13, 2011): II. Personal Jurisdiction Under the Federal RICO Statute RICO provides that "[a]ny civil action or proceeding under this chapter against any person may be instituted in the district court of the United States for any district in which such per ...
From Pincione v. D’Alfonso, 2011 U.S. Dist. LEXIS 103944 (S.D.N.Y. Sept. 13, 2011): II. Personal Jurisdiction Under the Federal RICO Statute RICO provides that “[a]ny civil action or proceeding under this chapter against any person may be instituted in the…
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Rule 11 Award for Conduct Unmentioned in Motion Unsustainable — Plain Error Review Where Ground for Reversal Not Raised in District Court

From Indah v. U.S. Securities and Exchange Commission, 2011 U.S. App. LEXIS 18486 (6th Cir. Sept. 6, 2011): The plaintiffs in this case believe that they have an ownership interest in several mines in Indonesia. In pursuit of these interests, they have filed several lawsuits against the Newmont Mining Corporation ("Newmont") and othe ...
From Indah v. U.S. Securities and Exchange Commission, 2011 U.S. App. LEXIS 18486 (6th Cir. Sept. 6, 2011): The plaintiffs in this case believe that they have an ownership interest in several mines in Indonesia. In pursuit of these interests,…
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Abuse of Discretion to Impose Sanctions for Unsupported Allegations That Were Not Filed in Bad Faith and Were Voluntarily Withdrawn, Albeit Not within 21-Day Safe Harbor Period

From In re Sony Corp. SXRD, 2011 U.S. App. LEXIS 19550 (2d Cir. Sept. 23, 2011): We vacate the district court's sanctions order. We understand why the district court felt the need to impose sanctions; we agree, for example, that (1) the Meserole plaintiffs' counsel did not have evidentiary support for certain of the assertions in the sec ...
From In re Sony Corp. SXRD, 2011 U.S. App. LEXIS 19550 (2d Cir. Sept. 23, 2011): We vacate the district court’s sanctions order. We understand why the district court felt the need to impose sanctions; we agree, for example, that…
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When There Is a Change in Law after Motion Decided But before Trial and Judgment, a Party That Does Not Seek Reconsideration Waives Arguments on Appeal Based on That Change in Law

From Douglas Asphalt Co. v. QORE, Inc., 2011 U.S. App. LEXIS 19266 (11th Cir. Sept. 20, 2011): The district court dismissed Douglas's RICO claims predicated on mail and wire fraud because Douglas had not pleaded that it relied on the defendants' misrepresentations. The parties agree that in doing so the court correctly applied the ...
From Douglas Asphalt Co. v. QORE, Inc., 2011 U.S. App. LEXIS 19266 (11th Cir. Sept. 20, 2011): The district court dismissed Douglas’s RICO claims predicated on mail and wire fraud because Douglas had not pleaded that it relied on the…
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New Arguments Raised for the First Time in Reply Brief Are Untimely and Disregarded

From EP Acquisition Corp. v. Maxxtrade, Inc., 2011 U.S. Dist. LEXIS 103715 (E.D. Ky. Sept. 14, 2011): The Sixth Circuit has consistently condemned arguments raised for the first time in reply briefs. See Seay v. Tennessee Valley Authority, 339 F.3d 454, 481 (6th Cir. 2003) (new arguments in a reply brief vitiate a nonmovant's ability t ...
From EP Acquisition Corp. v. Maxxtrade, Inc., 2011 U.S. Dist. LEXIS 103715 (E.D. Ky. Sept. 14, 2011): The Sixth Circuit has consistently condemned arguments raised for the first time in reply briefs. See Seay v. Tennessee Valley Authority, 339 F.3d…
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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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