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

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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Settlement Payments Doctrine Insulates Enron’s Voluntary Repurchase of Debt Shortly before Its Bankruptcy — Majority Panel Decision in Second Circuit

From In re Enron Creditors Recovery Corp. v. Alfa, S.A.B., 2011 U.S. App. LEXIS 13177 (2d Cir. June 28, 2011): This appeal raises an issue of first impression in the courts of appeals: whether 11 U.S.C. § 546(e), which shields "settlement payments" from avoidance actions in bankruptcy, extends to an issuer's payments to redeem its comm ...
From In re Enron Creditors Recovery Corp. v. Alfa, S.A.B., 2011 U.S. App. LEXIS 13177 (2d Cir. June 28, 2011): This appeal raises an issue of first impression in the courts of appeals: whether 11 U.S.C. § 546(e), which shields…
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Evidence Sufficient to Authenticate Profile Page on Social Networking Site

From Griffin v. Maryland, 419 Md. 343, 19 A.3d 415 (Ct. App. 2011) (reversing the decision of the Court of Special Appeals excerpted in our post of June 2, 2010): We ... hold that the pages allegedly printed from [Defendant] Griffin's girlfriend's MySpace profile were not properly authenticated.... Griffin was charged in numerous ...
From Griffin v. Maryland, 419 Md. 343, 19 A.3d 415 (Ct. App. 2011) (reversing the decision of the Court of Special Appeals excerpted in our post of June 2, 2010): We … hold that the pages allegedly printed from [Defendant]…
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PSLRA Precludes RICO Action Predicated on Aiding and Abetting Securities Fraud and other Conduct that Sounds in Securities Fraud but Is Not Actionable by the Plaintiff

From MLSMK Inv. Co. v. JPMorgan Chase & Co., 2011 U.S. App. LEXIS 13822 (2d Cir. July 7, 2011): This case arises out of the massive and now infamous Ponzi scheme perpetrated by Bernard L. Madoff ***. Between October and December 2008, the plaintiff, MLSMK Investment Company ("MLSMK"), invested $12.8 million with Madoff's inv ...
From MLSMK Inv. Co. v. JPMorgan Chase & Co., 2011 U.S. App. LEXIS 13822 (2d Cir. July 7, 2011): This case arises out of the massive and now infamous Ponzi scheme perpetrated by Bernard L. Madoff ***. Between October and…
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MBA Student’s Breach of Contract against Duke Fails to State a Claim — Elements of the Contract between a Student and Educational Institution

From Yurimindi v. Fuqua School of Business, 2011 U.S. App. LEXIS 13482 (3d Cir. July 1, 2011): In his 119-page third amended complaint, Vamsidhar Vurimindi sued Duke University's Fuqua School of Business ("Duke"), his fellow students in a Duke weekend MBA program, and corporations that employed or allegedly employed those students. ***< ...
From Yurimindi v. Fuqua School of Business, 2011 U.S. App. LEXIS 13482 (3d Cir. July 1, 2011): In his 119-page third amended complaint, Vamsidhar Vurimindi sued Duke University’s Fuqua School of Business (“Duke”), his fellow students in a Duke weekend…
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Self-Authentication of Newspaper and Periodical Articles Published Only on the Internet

Courts recognize that newspaper or other periodical stories posted on websites are self-authenticating under Federal Rule of Evidence 902(6) (Newspapers and Periodicals). See the article Internet and Email Evidence 2011 posted here. Although the cases have ...
Courts recognize that newspaper or other periodical stories posted on websites are self-authenticating under Federal Rule of Evidence 902(6) (Newspapers and Periodicals). See the article Internet and Email Evidence 2011 posted here. Although the cases have not found it…
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RICO — Second Circuit Upholds 1962(a) Claim in Anza, in Which Supreme Court Rejected 1962(c) Claim — 12(c) Motion Should Not Be Granted If Holes in Complaint Can Be Filled By Discovery Already Taken

From Ideal Steel Supply Corp. v. Anza, 2011 U.S. App. LEXIS 13176 (2d Cir. 2011) (2-1 decision): This case returns to us from the United States District Court for the Southern District of New York, Richard M. Berman, Judge, following the entry of a final judgment dismissing the third amended complaint (or "Complaint") of plaintiff Ideal ...
From Ideal Steel Supply Corp. v. Anza, 2011 U.S. App. LEXIS 13176 (2d Cir. 2011) (2-1 decision): This case returns to us from the United States District Court for the Southern District of New York, Richard M. Berman, Judge, following…
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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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