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

RICO — Competitors as Members of an Associated-in-Fact Enterprise

From Negrete v. Allianz Life Ins. Co. of N. Am., 2011 U.S. Dist. LEXIS 118529 (C.D. Cal. Oct. 13, 2011): Allianz next contends that because each FMO competes "aggressively, and at cross-purposes" with every other FMO, plaintiffs are unable to prove the "common purpose" element required by Boyle. Specifically, Allianz argues that "'[i]f ...
From Negrete v. Allianz Life Ins. Co. of N. Am., 2011 U.S. Dist. LEXIS 118529 (C.D. Cal. Oct. 13, 2011): Allianz next contends that because each FMO competes “aggressively, and at cross-purposes” with every other FMO, plaintiffs are unable to…
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Reliance on Internal Investigation as Affirmative Defense Effects Waiver Not Only of Report But Also Witness Interviews, Notes and Other Materials Protected by Privilege and Work Product

From Angelone v. Xerox Corp., 2011 U.S. Dist. LEXIS 109407 (W.D.N.Y. Sept. 26, 2011): This Title VII employment discrimination action stems from plaintiff's employment with defendant Xerox. See Complaint (Docket # 1). Specifically, plaintiff alleges that she was discriminated against because of her gender, subjected to a continuing host ...
From Angelone v. Xerox Corp., 2011 U.S. Dist. LEXIS 109407 (W.D.N.Y. Sept. 26, 2011): This Title VII employment discrimination action stems from plaintiff’s employment with defendant Xerox. See Complaint (Docket # 1). Specifically, plaintiff alleges that she was discriminated against…
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Contempt Sanctions for Violation of Protective Order — Giving Documents to Unauthorized Person with a Financial Incentive to Read Them = Contempt Notwithstanding Oral Direction Not to Read Them

From Hunt v. Enzo Biochem, Inc., 2011 U.S. Dist. LEXIS 117607 (S.D.N.Y. Oct. 11, 2011): Enzo Biochem, Inc., Heiman Gross, Barry Weiner, Elazar Rabbani, Sharim Rabbani, John Deluca, Dean Engelhardt, and John Does 1-50 (the "Enzo Defendants") bring this motion for sanctions against plaintiff Paul Lewicki and his former counsel, Dan Brecher ...
From Hunt v. Enzo Biochem, Inc., 2011 U.S. Dist. LEXIS 117607 (S.D.N.Y. Oct. 11, 2011): Enzo Biochem, Inc., Heiman Gross, Barry Weiner, Elazar Rabbani, Sharim Rabbani, John Deluca, Dean Engelhardt, and John Does 1-50 (the “Enzo Defendants”) bring this motion…
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Exceptions to Absolute Judicial Immunity from Suits for Money Damages Based on Judicial Acts

From Strand v. Dawson, 2011 U.S. Dist. LEXIS 115367 (C.D. Utah Oct. 4, 2011): Judges are shielded with absolute immunity from suits for money damages based on their judicial action. [Mireles v. Waco, 502 U.S. 9, 9-10, 112 S. Ct. 286, 116 L. Ed. 2d 9 (1991); Forrester v. White, 484 U.S. 219, 225-26, 108 S. Ct. 538, 98 L. Ed. 2d 555 (198 ...
From Strand v. Dawson, 2011 U.S. Dist. LEXIS 115367 (C.D. Utah Oct. 4, 2011): Judges are shielded with absolute immunity from suits for money damages based on their judicial action. [Mireles v. Waco, 502 U.S. 9, 9-10, 112 S. Ct.…
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Texas Law of Tortious Interference with Contract — What Is Good Faith? — Limits on Inherent Power Sanctions — Not Remedy for Underlying Misconduct or Conduct before Other Tribunals — Award Must Be ≤ Harm Caused

Symetra Life Ins. Co. v. Nat’l Ass’n of Settlement Purchasers, 2011 U.S. Dist. LEXIS 116966 (S.D. Tex. Oct. 11, 2011): This dispute involves two participants in the structured-settlement payment industry and a trade association representing companies that purchase structured settlements. Symetra Life Insurance Co. and Symetra Assigne ...
Symetra Life Ins. Co. v. Nat’l Ass’n of Settlement Purchasers, 2011 U.S. Dist. LEXIS 116966 (S.D. Tex. Oct. 11, 2011): This dispute involves two participants in the structured-settlement payment industry and a trade association representing companies that purchase structured settlements.…
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Liberal Construction of Pro Se Complaint vs. Mandatory Specificity — Violation of Rule 8(a) by Prolixity

From Bender v. City of N.Y., 2011 U.S. Dist. LEXIS 103947 (S.D.N.Y. Sept. 14, 201): The present case has a long and complicated procedural history spanning numerous docket numbers and complaints. Plaintiff's many lawsuits against various individual and official defendants stem from her years-long feud with the 11th St. Bar, an allegedly ...
From Bender v. City of N.Y., 2011 U.S. Dist. LEXIS 103947 (S.D.N.Y. Sept. 14, 201): The present case has a long and complicated procedural history spanning numerous docket numbers and complaints. Plaintiff’s many lawsuits against various individual and official defendants…
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Counsel Not Disqualified for Representing Former Executives of Corporate Client at Deposition — Anti-Solicitation Rule — Waiver by Not Objecting Despite Advance Knowledge of Representation

From Zarrella v. Pacific Life Ins. Co., 2011 U.S. Dist. LEXIS 108229 (S.D. Fla. Sept. 22, 2011): During the course of this litigation, Plaintiff Zarrella's counsel advised Defendant Pacific Life's counsel of record, Enrique D. Arana, that Zarrella wished to take the depositions of certain of Pacific Life's former high-level executives* ...
From Zarrella v. Pacific Life Ins. Co., 2011 U.S. Dist. LEXIS 108229 (S.D. Fla. Sept. 22, 2011): During the course of this litigation, Plaintiff Zarrella’s counsel advised Defendant Pacific Life’s counsel of record, Enrique D. Arana, that Zarrella wished to…
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Judicial Recusal Requires Bias from Extrajudicial Source — Rulings in Prior Cases Almost Never Sufficient — Judge Subject to Recusal If Objective Observer Would Doubt Impartiality

From Ocean-Oil Expert Witness, Inc. v. O’Dwyer, 2011 U.S. App. LEXIS 20467 (5th Cir. Oct. 6, 2011) (affirming contempt sanction issued under inherent power): O'Dwyer argues that Judge Lemelle should have recused himself from sitting in this case because of his personal bias against O'Dwyer. We review a denial of a motion to recuse un ...
From Ocean-Oil Expert Witness, Inc. v. O’Dwyer, 2011 U.S. App. LEXIS 20467 (5th Cir. Oct. 6, 2011) (affirming contempt sanction issued under inherent power): O’Dwyer argues that Judge Lemelle should have recused himself from sitting in this case because of…
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No Right to Attorneys’ Fees on Appeal for Defending Sanctions Award, Absent Sanctionable Conduct on Appeal — Appellate Fees Not “Caused” by Sanctionable Conduct Below — Sources of Bankruptcy Court Sanctions Power

From Franken v. Mukamal (In re Creative Desperation Inc.), 2011 U.S. App. LEXIS 20306 (11th Cir. Oct. 5, 2011): Section 105 of Tile 11 of the United States Code imbues bankruptcy courts with the same inherent powers as federal district courts to sanction abusive conduct. In re Porto, 645 F.3d 1294, 1304 n.6 (11th Cir. 2011). T ...
From Franken v. Mukamal (In re Creative Desperation Inc.), 2011 U.S. App. LEXIS 20306 (11th Cir. Oct. 5, 2011): Section 105 of Tile 11 of the United States Code imbues bankruptcy courts with the same inherent powers as federal district…
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Payments Received by Qui Tam Relator Are Includable in Gross Income

From Campbell v. Commissioner of Internal Revenue, 2011 U.S. App. LEXIS 19745 (11th Cir. Sept. 28, 2011): Section 61(a) of the Internal Revenue Code defines gross income as "all income from whatever source derived." I.R.C. § 61(a). There is no exclusion enumerated in the Code for qui tam awards. See Treas. Reg. § 1.61-1(a). "The taxp ...
From Campbell v. Commissioner of Internal Revenue, 2011 U.S. App. LEXIS 19745 (11th Cir. Sept. 28, 2011): Section 61(a) of the Internal Revenue Code defines gross income as “all income from whatever source derived.” I.R.C. § 61(a). There is no…
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Recent Posts

“RICO Is a Judge’s Nightmare” — “The Requisite RICO Pleading Standards Are Far From Explicit, And The RICO Jurisprudence Offers Courts (And Plaintiffs) Little Guidance” (Good Quotes) — Common Elements of § 1962(a), (c) and (d)-Based Claims — Closed-End Continuity: Duration > 1 Year = Substantial Period of Time — Continuity: Courts Skeptical If Number of Victims and Schemes Is Limited — Untargeted Persons Who Suffer Derivative Injury Do Not Add to the Number of Victims Considered for Continuity Purposes — Open Ended Continuity Can Be Established by Showing Defendant Commits Predicate Acts As “Regular Way of Doing Business” — Citing the Existence of Other Lawsuits Alleging Similar Predicates ≠ Pleading Facts Demonstrating Defendant’s Commission of Similar Predicates Against Others

Practice of Seeking Leave to Amend after The Case Is Dismissed Is Discouraged

RICO: Release Executed After Alleged RICO Violations Extinguishes RICO Claim — Eighth Circuit Declines to Address Enforceability of A Release “That Is An Integral Part of An Alleged RICO Scheme Or That Immunizes Future RICO Conduct

Pleading — “Civil pleadings are supposed to mark the boundaries for discovery; discovery is not supposed to substitute for definite pleading” (Good Quote) — Shotgun Pleadings (11th Circuit):  Four Categories/Types

Rule 37(c)(1) Exclusion of Untimely Expert Report: Failure to Argue Harmlessness Essentially Waives Issue

Rule 37(b) Sanctions — Exclusion of Supplemental Expert Report for Advancing New Opinions — Third Circuit Exclusion Factors — “Importance of Excluded Evidence:” If, As Proponent Argues, There Is Nothing New, Then Exclusion Doesn’t Harm Proponent; If There Is, It Harms Opponent

RICO Pleading: Generic Allegations of Fraud (Failing Even to Set Forth Any False Representation) And Extortion (Failing to Describe Actual Threats) Too Conclusory to State a Claim

RICO Standing: Antitrust’s Indirect Purchaser Rule Applies in RICO Cases, Barring Claims by Indirect Purchasers Two Or More Steps Removed From The Violator In A Distribution Chain (Here, Truck Purchasers/Lessees Suing Manufacturer), Though Court Considers Bar “Unsupported by Sensible Principles”

RICO Pleading: Statutory Directive That RICO Be Liberally Construed Does Not Extend to More Liberal Pleading Requirements

Inherent Power and FRAP 38 Sanctions — Inherent Power Sanctions (Here, A Deterrence Payment of $25,000 to the Court — Goodyear Issue Not Addressed) May Be Imposed in Addition to Statutory Attorney’s Fees under 35 U.S.C. § 285 (Exceptional Patent Case) — § 285 Does Not Preclude A Separate Award of Sanctions Or Fees under Another Authority — Recidivism (25 Prior Lawsuits with Same Perceived Venue Deficiency) A Factor — Fact That Rule 11 Sanctions Were Unavailable Due to Dismissal of Lawsuit Opened the Door to Inherent Power Sanctions Under Chambers — FRAP 38 Sanctions Denied Because Issue Previously Unaddressed in Circuit — A Meritless Appeal Is By No Means Necessarily A Frivolous One (Good Quote)

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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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