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

Supreme Court: Personal Jurisdiction — Stream of Commerce Theory Relevant Only to Specific Jurisdiction — Foreign Subsidiaries of U.S. Parent Not Subject to Personal Jurisdiction in State Court for Acts Unrelated to State

From Goodyear Dunlop Tires Operations, S.A. v. Brown, 2011 U.S. LEXIS 4801 (U.S. June 27, 2011): This case concerns the jurisdiction of state courts over corporations organized and operating abroad. We address, in particular, this question: Are foreign subsidiaries of a United States parent corporation amenable to suit in state court on ...
From Goodyear Dunlop Tires Operations, S.A. v. Brown, 2011 U.S. LEXIS 4801 (U.S. June 27, 2011): This case concerns the jurisdiction of state courts over corporations organized and operating abroad. We address, in particular, this question: Are foreign subsidiaries of…
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Supreme Court: Only Speaker or Person with Ultimate Authority for Content of Statement Is Liable under 10b-5 for “Making” It — Merely Hosting Document on Website ≠ Adopting It

From Janus Capital Group, Inc. v. First Deriv. Traders, 180 L. Ed. 2d 166, 2011 U.S. LEXIS 4380 (U.S. June 13, 2011): One "makes" a statement by stating it. When "make" is paired with a noun expressing the action of a verb, the resulting phrase is "approximately equivalent in sense" to that verb. 6 Oxford English Dictionary 66 ...
From Janus Capital Group, Inc. v. First Deriv. Traders, 180 L. Ed. 2d 166, 2011 U.S. LEXIS 4380 (U.S. June 13, 2011): One “makes” a statement by stating it. When “make” is paired with a noun expressing the action of…
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Supreme Court: Federal Common Law Survives Erie — If Congress Has Statutorily Delegated an Area to Agency Expertise, the Statute Displaces (Preempts) Federal Common Law

From Am. Elec. Power Co. v. Connecticut, 2011 U.S. LEXIS 4565 (U.S. June 20, 2011): We address in this opinion the question whether the plaintiffs (several States, the city of New York, and three private land trusts) can maintain federal common law public nuisance claims against carbon-dioxide emitters (four private power companies and ...
From Am. Elec. Power Co. v. Connecticut, 2011 U.S. LEXIS 4565 (U.S. June 20, 2011): We address in this opinion the question whether the plaintiffs (several States, the city of New York, and three private land trusts) can maintain federal…
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Class Actions: Supreme Court Strictly Defines Commonality under Rule 23(a) — Merits Rightly Considered on Certification — Daubert Alm ost Certainly Applies at Certification Stage

From Wal-Mart Stores, Inc. v. Dukes, 2011 U.S. LEXIS 4567 (June 20, 2011): The crux of this case is commonality — the rule requiring a plaintiff to show that "there are questions of law or fact common to the class." Rule 23(a)(2). Footnote 5. We have previously stated in this context that "[t]he commonality ...
From Wal-Mart Stores, Inc. v. Dukes, 2011 U.S. LEXIS 4567 (June 20, 2011): The crux of this case is commonality — the rule requiring a plaintiff to show that “there are questions of law or fact common to the class.”…
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Sixth Circuit Agrees with D.C. and Not First that Disclosure of Privileged Matter to Client’s Accountant Does Not Effect Waiver — Fact Lawyer Has Conflict Does Not Affect Client’s Right to Assert Privilege

From New Phoenix Sunrise Corp. v. Comm’r IRS, 408 F. App'x 908 (6th Cir. 2010): II. Reasonable Cause Exception The Commissioner assessed a 40% underpayment penalty applicable to valuation misstatements of more than 400% against New Phoenix. See I.R.C. § 6662(h). New Phoenix seeks to avoid this penalty by invoking the reasonabl ...
From New Phoenix Sunrise Corp. v. Comm’r IRS, 408 F. App’x 908 (6th Cir. 2010): II. Reasonable Cause Exception The Commissioner assessed a 40% underpayment penalty applicable to valuation misstatements of more than 400% against New Phoenix. See I.R.C. §…
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Weighing Work Product Claims by Insurance Companies — No Bright Line Test

From Botkin v. Donegal Mut. Ins. Co., 2011 U.S. Dist. LEXIS 63871 (W.D. Va. June 15, 2011): As the Fourth Circuit has explained, "the mere fact that litigation does eventually ensue does not, by itself, cloak materials with work product immunity." Nat'l Union Fire Ins. Co. of Pittsburgh v. Murray Sheet Metal Co., Inc, 967 F.2d 980, 984 ...
From Botkin v. Donegal Mut. Ins. Co., 2011 U.S. Dist. LEXIS 63871 (W.D. Va. June 15, 2011): As the Fourth Circuit has explained, “the mere fact that litigation does eventually ensue does not, by itself, cloak materials with work product…
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Authentication of Internet Archive Evidence Requires Affidavit from Knowledgeable Employee of Archive

From Specht v. Google, Inc., 758 F. Supp. 2d 570 (N.D. Ill. Dec. 17, 2010): Google has also moved to exclude screen shots of several websites that Plaintiffs retrieved from the Internet Archive's Wayback Machine. *** According to Google, Plaintiffs produced these screen shots at the close of discovery***. It alleges that the lat ...
From Specht v. Google, Inc., 758 F. Supp. 2d 570 (N.D. Ill. Dec. 17, 2010): Google has also moved to exclude screen shots of several websites that Plaintiffs retrieved from the Internet Archive’s Wayback Machine. *** According to Google, Plaintiffs…
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Court Has Discretion to Decline Relief under Declaratory Act But Not to Decline Relief under Federal Arbitration Act (Here, by Remanding First pursuant to DJ Act)

From Countrywide Home Loans, Inc. v. Mortgage Guaranty Ins. Corp., 2011 U.S. App. LEXIS 12066 (9th Cir. June 15, 2011): Appellant Mortgage Guaranty Insurance Company ("MGIC") appeals the district court's decision to remand this suit back to state court pursuant to its discretion under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-220 ...
From Countrywide Home Loans, Inc. v. Mortgage Guaranty Ins. Corp., 2011 U.S. App. LEXIS 12066 (9th Cir. June 15, 2011): Appellant Mortgage Guaranty Insurance Company (“MGIC”) appeals the district court’s decision to remand this suit back to state court pursuant…
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Sanctions Not Appropriate for Presenting Issues of First Impression — Litigants Should Not Be Deterred from Advancing Any Supportable Position (Good Quotes)

From Mid-Continent Cas. Co. v. Eland Energy, Inc., 2011 U.S. Dist. LEXIS 63493 (N.D. Tex. June 14, 2011): Mid-Continent has failed to demonstrate that Sundown has practiced a fraud upon this court or defiled the very temple of justice, or that it has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. Mid-Continent's ...
From Mid-Continent Cas. Co. v. Eland Energy, Inc., 2011 U.S. Dist. LEXIS 63493 (N.D. Tex. June 14, 2011): Mid-Continent has failed to demonstrate that Sundown has practiced a fraud upon this court or defiled the very temple of justice, or…
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Sanctions — Bad Faith of Client Cannot be Imputed to Lawyer Who Is Merely Negligent — Notable Quotes

From Harris v. U.S. Trustee (In re Aston-Nevada LP), 409 F. App'x 107 (9th Cir. 20100: In this case, some of Appellants' actions, viewed objectively, were negligent. As the bankruptcy court found, Chapman should have reviewed the bankruptcy petition and inquired into the estate's assets before agreeing to represent Aston-Nevada in bankr ...
From Harris v. U.S. Trustee (In re Aston-Nevada LP), 409 F. App’x 107 (9th Cir. 20100: In this case, some of Appellants’ actions, viewed objectively, were negligent. As the bankruptcy court found, Chapman should have reviewed the bankruptcy petition and…
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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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