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

Failure to File 60(b) Motion within 28 Days of Judgment to Toll Date for Filing Notice of Appeal Precludes Appellate Jurisdiction — Discovery Sanctions Motions Are Inextricably Intertwined with Merits and Toll Time to Appeal from Judgment

From Johnson v. Univ. of Rochester Med. Ctr., 2011 U.S. App. LEXIS 7980 (2d Cir. April 19, 2011): This Court lacks appellate jurisdiction over Johnson's appeal from the district court's February 19, 2010 judgment and order dismissing his complaint and denying leave to amend. Pursuant to Federal Rule of Appellate Procedure 4, a party mus ...
From Johnson v. Univ. of Rochester Med. Ctr., 2011 U.S. App. LEXIS 7980 (2d Cir. April 19, 2011): This Court lacks appellate jurisdiction over Johnson’s appeal from the district court’s February 19, 2010 judgment and order dismissing his complaint and…
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Defendant Who Unsuccessfully Moves to Dismiss on Personal Jurisdiction Grounds, Then Withdraws from Litigation, Cannot Appeal Ensuing Default Judgment on Personal Jurisdiction Grounds

From City of N.Y. v. Mickalis Pawn Shop, LLC, 2011 U.S. App. LEXIS 9104 (2d Cir. May 4, 2011): These appeals present what appear to be two issues of first impression in this Circuit. First, whether a defendant who repeatedly moves to dismiss for lack of personal jurisdiction, but then withdraws from the litigation after those motions ar ...
From City of N.Y. v. Mickalis Pawn Shop, LLC, 2011 U.S. App. LEXIS 9104 (2d Cir. May 4, 2011): These appeals present what appear to be two issues of first impression in this Circuit. First, whether a defendant who repeatedly…
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When Treating Physician Must Issue 26(a)(2)(B) Expert Report — Opinions Not Formed in the Course of Treatment and Based on Additional Materials — First Impression Decision Not Applied Retroactively

From Goodman v. Staples, the Office Superstore, LLC, 2011 U.S. App. LEXIS 8979 (9th Cir. May 3, 2011): Federal Rule of Civil Procedure 26(a)(2) requires a party to timely disclose a written report of a witness "if the witness is one retained or specially employed to provide expert testimony in the case . . . ." Generally speaking, treat ...
From Goodman v. Staples, the Office Superstore, LLC, 2011 U.S. App. LEXIS 8979 (9th Cir. May 3, 2011): Federal Rule of Civil Procedure 26(a)(2) requires a party to timely disclose a written report of a witness “if the witness is…
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A 403 Ruling Will Be Overturned on Appeal Only in Extraordinary Circumstances — Evidence that Trademark Plaintiff Had Previously Sued Defendant Did Not Unfairly Depict Defendant as Recidivist

From PBM Prods., LLC v. Mead Johnson & Co., 2011 U.S. App. LEXIS 8084 (4th Cir. April 20, 2011): Mead Johnson ... contends that the district court erred in admitting evidence of the 2001 and 2002 Lanham Act lawsuits filed by PBM. Mead Johnson argues that the evidence lacked relevance under Federal Rule of Evidence 401 and was more prej ...
From PBM Prods., LLC v. Mead Johnson & Co., 2011 U.S. App. LEXIS 8084 (4th Cir. April 20, 2011): Mead Johnson … contends that the district court erred in admitting evidence of the 2001 and 2002 Lanham Act lawsuits filed…
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Preliminary Injunction Order May Not Incorporate Another Document by Reference without Consent of Enjoined Party — Void If It Does So

From Eyewonder, Inc. v. Abraham, 293 Fed. Appx. 818 (2d Cir. 2008): Defendant-Appellant John Abraham appeals from an order entered June 9, 2008, in the United States District Court for the Southern District of New York (Daniels, J.), enjoining him from soliciting, directly or indirectly, the 42 specific entities named on a list (the "B ...
From Eyewonder, Inc. v. Abraham, 293 Fed. Appx. 818 (2d Cir. 2008): Defendant-Appellant John Abraham appeals from an order entered June 9, 2008, in the United States District Court for the Southern District of New York (Daniels, J.), enjoining him…
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Filing 9 Separate Suits on Behalf of 9 Tenants Against Landlord Sanctionable under Rule 11(b)(1) and Inherent Power, But Not § 1927 — Motion to Disqualify Based on Opposing Counsel’s Alleged Breach of Duty to His Own Client Violates § 1927

From DeDios v. International Realty & RC Investments, 2011 U.S. App. LEXIS 7421 (9th Cir. Apr. 11, 2011): The district court did not abuse its discretion in sanctioning De Dios's counsel $500 for "vexatious litigation strategy" in filing nine separate but identical actions [on behalf of nine separate tenants in an apartment building agai ...
From DeDios v. International Realty & RC Investments, 2011 U.S. App. LEXIS 7421 (9th Cir. Apr. 11, 2011): The district court did not abuse its discretion in sanctioning De Dios’s counsel $500 for “vexatious litigation strategy” in filing nine separate…
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Federal Rules of Evidence Do Not Apply in Sanctions Proceedings, But Evidence Must Bear Indicia of Reliability — Adverse Inference for Scrubbing of Server while on Notice of Claim

From Atpac, Inc. v. Aptitude Solutions, Inc., 2011 U.S. Dist. LEXIS 40043 (E.D. Cal. April 13, 2011): I. Evidentiary Objections The parties have filed numerous evidentiary objections. "While the Federal Rules of Evidence do not necessarily apply in the context of a motion for sanctions, evidence relied upon must, a ...
From Atpac, Inc. v. Aptitude Solutions, Inc., 2011 U.S. Dist. LEXIS 40043 (E.D. Cal. April 13, 2011): I. Evidentiary Objections The parties have filed numerous evidentiary objections. “While the Federal Rules of Evidence do not necessarily apply in the context…
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Bond on Appeal May Include Sum for Appellate Attorneys’ Fees If Judgment Is Based on Fee-Shifting Statute (Here, RICO)

From Int’l Floor Crafts, Inc. v. Dziemit, 2011 U.S. App. LEXIS 8181 (1st Cir. April 21, 2011): Federal Rule of Appellate Procedure 7 states, "In a civil case, the district court may require an appellant to file a bond or provide other security in any form and amount necessary to ensure payment of costs on appeal." Fed. R. App. P. 7. I ...
From Int’l Floor Crafts, Inc. v. Dziemit, 2011 U.S. App. LEXIS 8181 (1st Cir. April 21, 2011): Federal Rule of Appellate Procedure 7 states, “In a civil case, the district court may require an appellant to file a bond or…
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Circumstantial Evidence of Email Evidence — Massachusetts Supreme Court

From Commonwealth v. Purdy, 2011 Mass. LEXIS 169 (Mass. Sup. Ct. April 15, 2011): Authentication of e-mail messages. The defendant argues that the judge erred in admitting the ten e-mail exchanges because the evidence was insufficient to authenticate them as having been authored by him. "The requirement of authentication . . . ...
From Commonwealth v. Purdy, 2011 Mass. LEXIS 169 (Mass. Sup. Ct. April 15, 2011): Authentication of e-mail messages. The defendant argues that the judge erred in admitting the ten e-mail exchanges because the evidence was insufficient to authenticate them as…
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Choosing between Competing Contractual Venue Provisions — RICO Claims Subject to Contractual Venue Provision

From Bahamas Sales Associate, LLC v. Byers, 2011 U.S. Dist. LEXIS 39557 (M.D. Fla. Mar. 31, 2011): The Byers and Willis cases trace their origins to Byers' and Willis' execution of contracts for the purchase of undeveloped parcels of "real property in the Versailles Sur Mer subdivision on Grand Bahama Island, which was alternatively mark ...
From Bahamas Sales Associate, LLC v. Byers, 2011 U.S. Dist. LEXIS 39557 (M.D. Fla. Mar. 31, 2011): The Byers and Willis cases trace their origins to Byers’ and Willis’ execution of contracts for the purchase of undeveloped parcels of “real…
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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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