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

Privilege and Work Product Protection for Internal Investigations — Waiver Issues — Self-Interest and Common Interest Defenses to Defamation

From Gruss v. Zirin, 2011 U.S. Dist. LEXIS 79298 (S.D.N.Y. July 14, 2011): Plaintiff Perry A. Gruss filed the complaint in this action on July 20, 2009, asserting claims for defamation and breach of contract by the defendants, D.B. Zwirn & Co., L.P., and D.B. Zwirn Partners, LLC (collectively, the "Zwirn Entities"), two companies contro ...
From Gruss v. Zirin, 2011 U.S. Dist. LEXIS 79298 (S.D.N.Y. July 14, 2011): Plaintiff Perry A. Gruss filed the complaint in this action on July 20, 2009, asserting claims for defamation and breach of contract by the defendants, D.B. Zwirn…
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Court Retains CAFA Jurisdiction over All Claims after Denying Class Certification and Even after Severance Produces Multiple New Cases over Which No Independent Jurisdiction Exists

From Helm v. Alderwoods Grp., Inc., 2011 U.S. Dist. LEXIS 77370 (N.D. Cal. July 18, 2011): The subject of this litigation is a wage and hour dispute brought by current and former employees of Alderwoods Group, Inc. ("Alderwoods"), a provider of funerary services.*** On February 27, 2008, defendants removed the action to federal court, i ...
From Helm v. Alderwoods Grp., Inc., 2011 U.S. Dist. LEXIS 77370 (N.D. Cal. July 18, 2011): The subject of this litigation is a wage and hour dispute brought by current and former employees of Alderwoods Group, Inc. (“Alderwoods”), a provider…
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National Security Council and Others Who Advise the President Are Not Subject to FOIA — Test for Determining Exempt Status — When Equitable Estoppel May be Asserted against the Federal Government

From Electronic Privacy Information Center v. National Security Agency, 2011 U.S. Dist. LEXIS 72751 (D.D.C. July 7, 2011): The text of FOIA makes clear that the statute applies to "agenc[ies]" only. See 5 U.S.C. § 552(a) ("Each agency shall make available to the public information as follows..."). The statutory definition of an "agency ...
From Electronic Privacy Information Center v. National Security Agency, 2011 U.S. Dist. LEXIS 72751 (D.D.C. July 7, 2011): The text of FOIA makes clear that the statute applies to “agenc[ies]” only. See 5 U.S.C. § 552(a) (“Each agency shall make…
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Supreme Court on Anti-Injunction Act — Federal Denial of Class Certification Not Binding on State Court that Applies Different Standards — Absent Class Members Not Bound by Decisions in Putative (Not Certified) Class Action — Good Quotes

From Smith v. Bayer Corp., 180 L. Ed. 2d 341 (2011): [T]he "relitigation exception" to the Anti-Injunction Act ... permits a federal court to enjoin a state proceeding only in rare cases, when necessary to "protect or effectuate [the federal court's] judgments." 28 U.S.C. § 2283. Here, that standard was not met for two reasons. First, t ...
From Smith v. Bayer Corp., 180 L. Ed. 2d 341 (2011): [T]he “relitigation exception” to the Anti-Injunction Act … permits a federal court to enjoin a state proceeding only in rare cases, when necessary to “protect or effectuate [the federal…
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No Mandamus Review of Order Compelling Arbitration Even If Erroneous Because Claimants Are Exempt from Arbitrating under FAA — Existence of Exemption Is Not an Issue of Arbitrability — Error on Issue of First Impression Not “Clear”

From In re Van Dusen, 2011 U.S. App. LEXIS 15398 (9th Cir. July 27, 2011): This matter comes before us on petition for a writ of mandamus. Petitioners argue that the District Court erred by refusing to resolve their claim of exemption from arbitration under Section 1 of the Federal Arbitration Act ("FAA") ... before compelling arbitrati ...
From In re Van Dusen, 2011 U.S. App. LEXIS 15398 (9th Cir. July 27, 2011): This matter comes before us on petition for a writ of mandamus. Petitioners argue that the District Court erred by refusing to resolve their claim…
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Lawyer Serving as Expert Is Not Subject to Lawyer Conflict-of-Interest Rules

The majority view is that a lawyer retained as an expert witness is not acting in a representational capacity and that therefore the attorney conflict-of-interest rules do not apply. See, e.g., ABA Committee on Ethics and Professional Responsibility, Formal Opinion 97-407 (1997); Nassau County (New York) Bar Opinion 2005-1 (April 6, 2005); D.C. Ethics Opin ...
The majority view is that a lawyer retained as an expert witness is not acting in a representational capacity and that therefore the attorney conflict-of-interest rules do not apply. See, e.g., ABA Committee on Ethics and Professional Responsibility, Formal Opinion…
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Conclusory Finding of Bad Faith Cannot Sustain Inherent Power Sanction — § 105(a) of Bankruptcy Code Codifies Inherent Power — Sins of Lawyer Not Visited on Client, Whose Bad Faith Must Separately be Found — Good Quotes

From DeLauro v. Porto (In re Porto), 2011 U.S. App. LEXIS 13941 (11th Cir. July 8, 2011): "While bad faith is the key to unlocking the court's inherent power, a court must do more than conclude that a party acted in bad faith; it should make specific findings as to the party's conduct that warrants sanctions." Byrne v. Nezhat, 2 ...
From DeLauro v. Porto (In re Porto), 2011 U.S. App. LEXIS 13941 (11th Cir. July 8, 2011): “While bad faith is the key to unlocking the court’s inherent power, a court must do more than conclude that a party acted…
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Arbitration — What Constitutes a “Reasoned Award” — No Vacatur for Sparse Award Where Parties Did Not Contract for Findings and Conclusions and Primary Issue Was Credibility

From Cat Charter, LLC v. Schurtenberger, 2011 U.S. App. LEXIS 14266 (11th Cir. July 13, 2011): The question here is whether arbitrators "exceeded their powers" — thereby justifying vacatur of their award under § 10(a)(4) [of the Federal Arbitration Act] — when they purportedly failed to provide a "reasoned award" as agreed to by the ...
From Cat Charter, LLC v. Schurtenberger, 2011 U.S. App. LEXIS 14266 (11th Cir. July 13, 2011): The question here is whether arbitrators “exceeded their powers” — thereby justifying vacatur of their award under § 10(a)(4) [of the Federal Arbitration Act]…
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SEC Cannot Rely on Conspiracy Theory of Venue under § 78aa of the 1934 Act — Circuit Split

From SEC v. Johnson, 2011 U.S. App. LEXIS 13123 (D.C. Cir. June 28, 2011): Venue for a civil action under the securities laws lies "in the district wherein the defendant is found or is an inhabitant or transacts business," or "in the district wherein any act or transaction constituting the violation occurred." § 78aa. By the reference ...
From SEC v. Johnson, 2011 U.S. App. LEXIS 13123 (D.C. Cir. June 28, 2011): Venue for a civil action under the securities laws lies “in the district wherein the defendant is found or is an inhabitant or transacts business,” or…
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While Trial Court Must Follow Appellate Mandate, It Is Free to Consider as Matter of First Impression Issues Not Explicitly or Implicitly Decided by Court of Appeals

From Centrix HR, LLC v. On-Site Staff Mgmt., Inc., 2011 U.S. App. LEXIS 13001 (3d Cir. June 23, 2011): "[W]hether the district court properly interpreted and applied . . . our [remand] mandate . . . [is an] issue . . . of law, subject to plenary review[.] . . . A trial court must implement both the letter and spirit of the mandate, taki ...
From Centrix HR, LLC v. On-Site Staff Mgmt., Inc., 2011 U.S. App. LEXIS 13001 (3d Cir. June 23, 2011): “[W]hether the district court properly interpreted and applied . . . our [remand] mandate . . . [is an] issue .…
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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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