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

Stock Price Data Inadmissible Where Price Drop May be Attributable to Irrelevant Causes — Rejecting Stipulations — Waiver v. Forfeiture of Objection & Plain Error Review — Double Hearsay

From United States v. Ferguson, 2011 U.S. App. LEXIS 15811 (2d Cir. Aug. 1, 2011): Materiality is an element of most of the charged offenses. There must have been a "substantial likelihood" that the LPT-related misstatements would be important to a reasonable investor. See Basic Inc. v. Levinson, 485 U.S. 224, 231, 108 S. Ct. 978, 99 L. ...
From United States v. Ferguson, 2011 U.S. App. LEXIS 15811 (2d Cir. Aug. 1, 2011): Materiality is an element of most of the charged offenses. There must have been a “substantial likelihood” that the LPT-related misstatements would be important to…
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Motion to Recuse Not Only Members of Panel that Ruled against Her but also All Other, Unnamed Circuit Judges “Who Share Their Feelings” Not Only Frivolous but Appears to Comprise Malicious Disparagement of Court

From Gallop v. Cheney, 645 F.3d 519 (2d Cir. 2011) (denying rehearing of opinion excerpted in our post of June 7, 2011): While Gallop's petition for rehearing was pending before this Court, she moved, pursuant to 28 U.S.C. §§ 144 and 455(a), to disqualify the panel from consideration of that petition and any other aspect of her appeal ...
From Gallop v. Cheney, 645 F.3d 519 (2d Cir. 2011) (denying rehearing of opinion excerpted in our post of June 7, 2011): While Gallop’s petition for rehearing was pending before this Court, she moved, pursuant to 28 U.S.C. §§ 144…
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Non-Waiver Clause in Arbitration Agreement Does Not Preclude Finding that Party Has Waived Right to Arbitrate by Litigating Dispute in Court

From Gray Holdco, Inc. v Cassady, 2011 U.S. App. LEXIS 17032 (3d Cir. Aug. 17, 2011): On November 13, 2009, Gray filed the complaint in this action in the District Court against Cassady and RWLS, asserting that Cassady breached the Option Agreement and tortiously interfered with Gray's existing contractual relationships. The complaint a ...
From Gray Holdco, Inc. v Cassady, 2011 U.S. App. LEXIS 17032 (3d Cir. Aug. 17, 2011): On November 13, 2009, Gray filed the complaint in this action in the District Court against Cassady and RWLS, asserting that Cassady breached the…
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Literal Truth No Defense to Rule 11 Sanctions If Misleading — Reliance on Dubious Computerized Data from client’s Third-Party Vendor ≠ Reasonable Inquiry — Reliance on Client: Need Not Assume Duplicity — Uninvolved Senior Partner Not Culpable

From In re Taylor, 2011 U.S. App. LEXIS 17651 (3d Cir. Aug. 24, 2011): This case is an unfortunate example of the ways in which overreliance on computerized processes in a high-volume practice, as well as a failure on the part of clients and lawyers alike to take responsibility for accurate knowledge of a case, can lead to attorney misc ...
From In re Taylor, 2011 U.S. App. LEXIS 17651 (3d Cir. Aug. 24, 2011): This case is an unfortunate example of the ways in which overreliance on computerized processes in a high-volume practice, as well as a failure on the…
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Amended Complaint that Fundamentally Changes the Shape of a Case Revives Defendant’s Right to Compel Arbitration — Here, Vastly Augmented Class Definition

From Krinsk v. Suntrust Banks, Inc., 2011 U.S. App. LEXIS 18521 (11th Cir. Sept. 7, 2011): Defendant SunTrust Bank ("SunTrust") appeals the district court's order denying its motion to compel plaintiff Sara Krinsk to submit her claims to arbitration pursuant to an arbitration agreement governed by the Federal Arbitration Act ("FAA"), 9 ...
From Krinsk v. Suntrust Banks, Inc., 2011 U.S. App. LEXIS 18521 (11th Cir. Sept. 7, 2011): Defendant SunTrust Bank (“SunTrust”) appeals the district court’s order denying its motion to compel plaintiff Sara Krinsk to submit her claims to arbitration pursuant…
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Responsive Internet Pages that Party Intends to Introduce Must Be Produced in Discovery — No Defense that They Haven’t Been Printed Out — Someone Other Than Trial Counsel Should Authenticate — Non-Hearsay Uses of Internet Evidence

From Firehouse Restaurant Group, Inc. v. Scurmont LLC, 2011 U.S. Dist. LEXIS 89727 (D.S.C. Aug. 11, 2011): I: Internet Printouts of Alleged Third Party Use Firehouse seeks to preclude Calli Baker's from introducing a substantial number of printouts from various Internet websites purporting to identify businesses that use the ter ...
From Firehouse Restaurant Group, Inc. v. Scurmont LLC, 2011 U.S. Dist. LEXIS 89727 (D.S.C. Aug. 11, 2011): I: Internet Printouts of Alleged Third Party Use Firehouse seeks to preclude Calli Baker’s from introducing a substantial number of printouts from various…
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Permissible and Impermissible Supplemental Closing Arguments in Criminal Trial — Distinguishing Coercive from Non-Coercive — Importance of Not Polling Jurors as to Areas of Disagreement

From United States v. Della Porta, 2011 U.S. App. LEXIS 16341 (9th Cir. Aug. 8, 2011): In [United States v. Evanston, No. 10-10159, 2011 U.S. App. LEXIS 13647, 2011 WL 2619277, at *1 (9th Cir. July 5, 2011)], we addressed, as a matter of first impression in this circuit, the use of supplemental closing arguments to assist a deadlocked j ...
From United States v. Della Porta, 2011 U.S. App. LEXIS 16341 (9th Cir. Aug. 8, 2011): In [United States v. Evanston, No. 10-10159, 2011 U.S. App. LEXIS 13647, 2011 WL 2619277, at *1 (9th Cir. July 5, 2011)], we addressed,…
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Arbitration — Applying Vaden to Look Through a Freestanding FAA Petition Where No Complaint Exists — State Law Discovery Sanction Striking Arbitration Clause Precludes Motion to Compel in Federal Court

From Community State Bank v. Strong, 2011 U.S. App. LEXIS 17767 (11th Cir. Aug. 25, 2011): This resilient case has arrived back in our Court after the Supreme Court's opinion in Vaden v. Discover Bank, 556 U.S. 49, 129 S. Ct. 1262, 173 L. Ed. 2d 206 (2009), and following a detour through our en banc Court. Again we are asked to navigate ...
From Community State Bank v. Strong, 2011 U.S. App. LEXIS 17767 (11th Cir. Aug. 25, 2011): This resilient case has arrived back in our Court after the Supreme Court’s opinion in Vaden v. Discover Bank, 556 U.S. 49, 129 S.…
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Disqualification of Opposing Lawyer, Who Was a Key Participant in Failed Contract Negotiations, Denied — No Right to Call Opposing Counsel to Corroborate Own Witnesses’ Testimony

From Lincoln Provision, Inc., v.Aron Puretz, PMP LLC, 2011 U.S. Dist. LEXIS 86475 (D. Neb. Aug. 4, 2011): The Defendants moved to disqualify Plaintiff's counsel, David Domina, on the theory that Domina is a necessary witness in this action***. Defendants note that Domina participated in unsuccessful negotiations for an operat ...
From Lincoln Provision, Inc., v.Aron Puretz, PMP LLC, 2011 U.S. Dist. LEXIS 86475 (D. Neb. Aug. 4, 2011): The Defendants moved to disqualify Plaintiff’s counsel, David Domina, on the theory that Domina is a necessary witness in this action***. Defendants…
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§ 1292(b) Certification Is Not Appropriate Simply Because the Interlocutory Decision Addresses an Issue of First Impression or Complex, Difficult Statutory Interpretation

From Lang v. Crocker Park, LLC, 2011 U.S. Dist. LEXIS 83451 (N.D. Ohio July 29, 2011): B. Substantial Ground for Difference of Opinion Is Not Present Defendants posit that the language used by the court in its Order is intentionally equivocal in recognition of the fact that certain provisions of the ADAAG [Americans with Disabil ...
From Lang v. Crocker Park, LLC, 2011 U.S. Dist. LEXIS 83451 (N.D. Ohio July 29, 2011): B. Substantial Ground for Difference of Opinion Is Not Present Defendants posit that the language used by the court in its Order is intentionally…
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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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