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

Court Papers Filed Manually — Including on Disk — Must Bear Actual Signature and Do Not Satisfy Rule 11(a) If They Bear Only the “/s/” Typed Signature Permitted on Electronically-Filed Documents

From Comtide Holdings, LLC v. Booth Creek Mgmt. Corp., 2011 U.S. Dist. LEXIS 61856 (S.D. Ohio June 8, 2011): This order is being issued to address a problem with the way in which Doc. #81 has been signed.***Rule 11 does not directly define what is meant by "signing" a pleading, motion, or paper. Fed.R.Civ.P. 5(d)(3) provides that a cour ...
From Comtide Holdings, LLC v. Booth Creek Mgmt. Corp., 2011 U.S. Dist. LEXIS 61856 (S.D. Ohio June 8, 2011): This order is being issued to address a problem with the way in which Doc. #81 has been signed.***Rule 11 does…
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Information-and-Belief Allegations of Meetings that Experts Say Must Have Occurred between Banks and Madoff Are Speculative, Insufficient to Show Actual Knowledge of Fraud — Banks Generally Owe No Duty to Protect Non-Customers from Fraud by Customers

From MLSMK Inv. Co. v. JP Morgan Chase & Co., 2011 U.S. App. LEXIS 11425 (2d Cir. June 6, 2011): To state a claim for aiding and abetting breach of fiduciary duty under New York law, a plaintiff must show "breach by a fiduciary of a duty owed to plaintiff; defendant's knowing participation in the breach; and damages." SCS Commc'ns, Inc. ...
From MLSMK Inv. Co. v. JP Morgan Chase & Co., 2011 U.S. App. LEXIS 11425 (2d Cir. June 6, 2011): To state a claim for aiding and abetting breach of fiduciary duty under New York law, a plaintiff must show…
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In Action Substantively Governed by State Law, Waiver of Privilege Is Determined by State Law, But Waiver of Work Product Protection Is Governed by Federal Law — Counsel Not Permitted to Make Independent Claim of Work Product Where Client Has Waived

From SEC v. McNaul, 2011 U.S. Dist. LEXIS 62932 (D. Kan. June 14, 2011): Waiver of attorney-client privilege is governed by state law, while waiver of the work product protection is governed by federal law. Frontier Refining, Inc. v. Gorman-Rupp Co., Inc., 136 F.3d 695, 702 n.10 (10th Cir. 1998). Note: This ...
From SEC v. McNaul, 2011 U.S. Dist. LEXIS 62932 (D. Kan. June 14, 2011): Waiver of attorney-client privilege is governed by state law, while waiver of the work product protection is governed by federal law. Frontier Refining, Inc. v. Gorman-Rupp…
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Filing Second Action to Avoid Seeking Leave of Court to Amend Is Subject to § 1927 Sanction in First Action (Despite General Rule that Filing a Complaint Doesn’t Violate § 1927 Because It Isn’t Multiplicative)

From Thurmond v. Wayne County, 2011 U.S. App. LEXIS 11817 (6th Cir. June 10,2011): On March 8, 2007, Thurmond filed a complaint in the Wayne County Circuit Court, which Wayne County removed to the U.S. District Court for the Eastern District of Michigan. After almost one year and a litany of discovery motions from both parties, Thurmond ...
From Thurmond v. Wayne County, 2011 U.S. App. LEXIS 11817 (6th Cir. June 10,2011): On March 8, 2007, Thurmond filed a complaint in the Wayne County Circuit Court, which Wayne County removed to the U.S. District Court for the Eastern…
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Interim Injunctive Award Issued by Emergency Arbitrator Pending Constitution of, and Subject to Review by, Arbitration Panel Is Not Sufficiently Final to Permit Judicial Review

From Chinmax Med. Sys. v. Alere San Diego, Inc., 2011 U.S. Dist. LEXIS 57889 (S.D. Cal. May 27, 2011): On October 13, 2010, Chinmax filed a demand for arbitration with the International Centre for Dispute Resolution division of the American Arbitration Association ("AAA"). On October 15, 2010, Alere filed a request for an emergency inte ...
From Chinmax Med. Sys. v. Alere San Diego, Inc., 2011 U.S. Dist. LEXIS 57889 (S.D. Cal. May 27, 2011): On October 13, 2010, Chinmax filed a demand for arbitration with the International Centre for Dispute Resolution division of the American…
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Indirect Injury from Patent-Holder’s Fraud on Patent Office, Rendering Contract to Sell Defectively Patented Product Less Valuable, ≠ RICO Injury; Fraud on Patent Office ≠ Predicate Act

From Jersey Asparagus Farms, Inc. v. Rutgers Univ., 2011 U.S. Dist. LEXIS 58053 (D.N.J. May 31, 2011): This matter arises out of a now-terminated, exclusive license agreement through which Plaintiff Jersey Asparagus Farms, Inc. ("JAFI") was authorized by Defendant Rutgers University ("Rutgers") to sell the latter's patented varieties of ...
From Jersey Asparagus Farms, Inc. v. Rutgers Univ., 2011 U.S. Dist. LEXIS 58053 (D.N.J. May 31, 2011): This matter arises out of a now-terminated, exclusive license agreement through which Plaintiff Jersey Asparagus Farms, Inc. (“JAFI”) was authorized by Defendant Rutgers…
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Legal Malpractice Claim Alleging Misconduct During Representation Is Not Duplicative of Fiduciary Duty Claim Alleging Misconduct After Termination of Representation

From Neuman v. Frank, 82 A.D. 3d 1642 (4th Dep’t 2011): "A cause of action for legal malpractice must be based on the existence of an attorney-client relationship at the time of the alleged malpractice' " (TVGA Eng'g, Surveying, P.C. v Gallick [appeal No. 2], 45 A.D.3d 1252, 1256, 846 N.Y.S.2d 506; see Compis Servs., Inc. v Greenman, ...
From Neuman v. Frank, 82 A.D. 3d 1642 (4th Dep’t 2011): “A cause of action for legal malpractice must be based on the existence of an attorney-client relationship at the time of the alleged malpractice’ ” (TVGA Eng’g, Surveying, P.C.…
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Factors for Determining Whether a Current Decision Should Be Given Retroactive Effect in a Civil Case

From Graff v. Town of Pembroke, NH, 447 B.R. 51, 2011 Bankr. LEXIS 783 (Bankr. D.N.H. 2011): Federal courts traditionally looked to three factors in determining whether a current decision in a civil case should be given retroactive effect or only apply prospectively. Those factors are: (1) whether the more recent rule or deci ...
From Graff v. Town of Pembroke, NH, 447 B.R. 51, 2011 Bankr. LEXIS 783 (Bankr. D.N.H. 2011): Federal courts traditionally looked to three factors in determining whether a current decision in a civil case should be given retroactive effect or…
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Attorney-Client Privilege — Perlman Doctrine, Which Permits Immediate Review of Order Requiring Third Party to Disclose Privileged Information It Possesses, No Longer Applies If Privilege Holder Is a Party, after Mohawk

From Hold-Orsted v. City of Dickson, 2011 U.S. App. LEXIS 10379 (6th Cir. May 24, 2011): One such justification for an immediate appeal exists in situations "where a party claiming a privilege is 'powerless to avert the mischief of the order.'" Ross, 423 F.3d at 599 (quoting Perlman v. United States, 247 U.S. 7, 13 (1918)). "Under P ...
From Hold-Orsted v. City of Dickson, 2011 U.S. App. LEXIS 10379 (6th Cir. May 24, 2011): One such justification for an immediate appeal exists in situations “where a party claiming a privilege is ‘powerless to avert the mischief of the…
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The Plaintiff’s Heavy Burden of Proof in a Legal Malpractice Action under New York Law — Good Quote

From Sabalza v.Salgado, 2011 NY Slip Op 4732, 2011 N.Y. App. Div. LEXIS 4657 (1st Dep’t June 7, 2011): A plaintiff's burden of proof in a legal malpractice action is a heavy one (Lindenman v Kreitzer, 7 AD3d 30 [2004]). The plaintiff must first prove the hypothetical outcome of the underlying litigation and, then, the attorney's lia ...
From Sabalza v.Salgado, 2011 NY Slip Op 4732, 2011 N.Y. App. Div. LEXIS 4657 (1st Dep’t June 7, 2011): A plaintiff’s burden of proof in a legal malpractice action is a heavy one (Lindenman v Kreitzer, 7 AD3d 30 [2004]).…
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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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