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

Mutual Company, Not Just Its Directors, Owes a Fiduciary Duty to Its Members — Case Law Split (Cases Collected)

From Ormond v. Anthem Ins. Cos., 2011 U.S. Dist. LEXIS 71152 (S.D. Ind. July 1, 2011): Plaintiffs contend that Anthem owed its members a fiduciary duty to reasonably protect their interests and to refrain from gross negligence or wilful conduct that would diminish those interests. According to Plaintiffs, pricing the IPO at $36.00 per s ...
From Ormond v. Anthem Ins. Cos., 2011 U.S. Dist. LEXIS 71152 (S.D. Ind. July 1, 2011): Plaintiffs contend that Anthem owed its members a fiduciary duty to reasonably protect their interests and to refrain from gross negligence or wilful conduct…
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No Waiver of Privilege from Presence of Parents and Neighbor at Conversation with Counsel

From Quagliarello v. Dewees, 2011 U.S. Dist. LEXIS 78870 (E.D. Pa. July 20, 2011) (§ 1983 action against a police officer): Plaintiff contends that [her attorney] Murphy cannot testify as to her conversations with Plaintiff, because any conversations between Plaintiff and her criminal defense attorney are privileged pursuant to Fed. R. ...
From Quagliarello v. Dewees, 2011 U.S. Dist. LEXIS 78870 (E.D. Pa. July 20, 2011) (§ 1983 action against a police officer): Plaintiff contends that [her attorney] Murphy cannot testify as to her conversations with Plaintiff, because any conversations between Plaintiff…
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Rule 37(b) Default Upheld for Disregard of Oral Discovery Order Not Noticed, Opposed or Formally Heard — Five-Factor Ninth Circuit Test for Default Sanction — Second Judge on Case May Reconsider Orders of First — 16(f) Sanctions — Good Quotes

From Dreith v. Nu Image, Inc., 2011 U.S. App. LEXIS 14686 (9th Cir. July 19, 2011): The Defendants below, Appellants here, engaged in discovery misconduct that was sufficiently egregious to cause the district court to enter an order of default against them. *** The district court possessed the power to impose default as a sanctio ...
From Dreith v. Nu Image, Inc., 2011 U.S. App. LEXIS 14686 (9th Cir. July 19, 2011): The Defendants below, Appellants here, engaged in discovery misconduct that was sufficiently egregious to cause the district court to enter an order of default…
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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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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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