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

A Refreshing Pox-on-Both-Your-Houses Approach to Sanctions (Seventh Circuit) — Good Quote

From Moore v. Vital Prods., Inc., 2011 U.S. App. LEXIS 10436 (7th Cir. May 25,, 2011): Vital has come, shotgun in tow, seeking sanctions. See United States v. Levy, 741 F.2d 915, 924 (7th Cir. 1984) (noting that "the shotgun inclusion of issues . . . runs the risk of obscuring the significant issues by dilution"). In the distri ...
From Moore v. Vital Prods., Inc., 2011 U.S. App. LEXIS 10436 (7th Cir. May 25,, 2011): Vital has come, shotgun in tow, seeking sanctions. See United States v. Levy, 741 F.2d 915, 924 (7th Cir. 1984) (noting that “the shotgun…
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Advisory Committee Note to Rule 11 Does Not Create Any Exception to the 21-Day Safe Harbor Requirement

From Fierro v. Gallucci, 2011 U.S. App. LEXIS 10388 (2d Cir. May 23, 2011): Here, the district court was required to deny plaintiffs' motion for sanctions for failure to comply with the 21-day "safe harbor," which requires Rule 11 motions to be served on the opposing party 21 days prior to their filing, in order to afford that party an ...
From Fierro v. Gallucci, 2011 U.S. App. LEXIS 10388 (2d Cir. May 23, 2011): Here, the district court was required to deny plaintiffs’ motion for sanctions for failure to comply with the 21-day “safe harbor,” which requires Rule 11 motions…
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The Problems with Legislative History

From Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 568 (2005): First, legislative history is itself often murky, ambiguous, and contradictory. Judicial investigation of legislative history has a tendency to become, to borrow Judge Leventhal's memorable phrase, an exercise in "'looking over a crowd and picking out your friends.'" Se ...
From Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 568 (2005): First, legislative history is itself often murky, ambiguous, and contradictory. Judicial investigation of legislative history has a tendency to become, to borrow Judge Leventhal’s memorable phrase, an exercise…
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No Fed.R.App.P. 38 Sanctions Absent Separate Motion — § 1927 Sanctions Particularly Apt for Groundless Appeal of Arbitration Award

From Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Whitney, 2011 U.S. App. LEXIS 7041 (10th Cir. April 4, 2011): Defendants-Appellants Pamela Whitney, the Estate of Mary Whitney, and the Estate of Suzanne Whitney appeal from the district court's order granting plaintiff Merrill Lynch's motion to confirm an arbitration award in this int ...
From Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Whitney, 2011 U.S. App. LEXIS 7041 (10th Cir. April 4, 2011): Defendants-Appellants Pamela Whitney, the Estate of Mary Whitney, and the Estate of Suzanne Whitney appeal from the district court’s order…
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Email from Consumer to Trademark Plaintiff’s Customer Service Department Admissible on Issue of Confusion under State of Mind Exception to Hearsay Rule

From T. Marzetti Co. v. Roskam Baking Co., No. 2:90 CV 584, 2010 WL 909582, at *2 (S.D. Ohio March 11, 2010): Roskam's Email Motion in Limine to prevent Marzetti from using an email dated July 13, 2009, sent from Diane Meale to Roskam's Customer Service Department (the “Meale Email”) as evidence in the likelihood of confusion an ...
From T. Marzetti Co. v. Roskam Baking Co., No. 2:90 CV 584, 2010 WL 909582, at *2 (S.D. Ohio March 11, 2010): Roskam’s Email Motion in Limine to prevent Marzetti from using an email dated July 13, 2009, sent from…
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Experts — Lack of Certification in Field Not Disqualifying — Expert’s Failure to Remember Every Document Reviewed Irrelevant, As Is Mistaken Understanding of Relevant Dates — Good Quote

From GE Capital Corp. v. Nichols, 2011 U.S. Dist. LEXIS 46095 (D. Conn. April 29, 2011): As an initial matter, Bodeker appears well-qualified to render an opinion in this case. He has spent sixteen years in the concrete pumping industry, primarily in sales but also in marketing. *** Bodeker has sold or supervised the sale of over 1000 c ...
From GE Capital Corp. v. Nichols, 2011 U.S. Dist. LEXIS 46095 (D. Conn. April 29, 2011): As an initial matter, Bodeker appears well-qualified to render an opinion in this case. He has spent sixteen years in the concrete pumping industry,…
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Factors in Determining Whether to Exercise Supplemental Jurisdiction Once Federal Jurisdiction Has Been Found Lacking — Ninth Circuit Articulation

From Wadhwa v. Aurora Loan Servs., LLC, 2011 U.S. Dist. LEXIS 45489 (E.D. Cal. April 27, 2011): Under 28 U.S.C. § 1367(c)(3), a district court may decline to exercise supplemental jurisdiction over state law claims if "the district court has dismissed all claims over which it has original jurisdiction . . . ." 28 U.S.C. § 1367(c)(3); ...
From Wadhwa v. Aurora Loan Servs., LLC, 2011 U.S. Dist. LEXIS 45489 (E.D. Cal. April 27, 2011): Under 28 U.S.C. § 1367(c)(3), a district court may decline to exercise supplemental jurisdiction over state law claims if “the district court has…
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Trial Subpoena Served on a Party Must Be Limited to Documents and Things Previously Disclosed, and Cannot Be Used to End Run Discovery Deadlines Set by Court

From Hatcher v. Precoat Metals, 271 F.R.D. 674, 675 (N.D. Ala. 2010): This matter is before the court for consideration of the motion of defendant Precoat Metals to quash a subpoena purportedly served in accord with the provisions of Rule 45, Federal Rules of Civil Procedure.... The subpoena seeks documents which, by their nature, are oth ...
From Hatcher v. Precoat Metals, 271 F.R.D. 674, 675 (N.D. Ala. 2010): This matter is before the court for consideration of the motion of defendant Precoat Metals to quash a subpoena purportedly served in accord with the provisions of Rule…
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Appeals — Affirming on Alternate Grounds Supported by the Record vs. Not Considering Issues that the District Court Did Not Reach

From New Mexico St. Investment Council v. Ernst & Young LLP, 2011 U.S. App. LEXIS 7680 (9th Cir. April 14, 2011): [Footnote] 1. EY argues this Court can affirm "on any ground supported by the record, even if the district court did not rely on the ground." Livid Holdings, Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 950 (9th C ...
From New Mexico St. Investment Council v. Ernst & Young LLP, 2011 U.S. App. LEXIS 7680 (9th Cir. April 14, 2011): [Footnote] 1. EY argues this Court can affirm “on any ground supported by the record, even if the district…
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Neither State Action Doctrine Nor Implied Preemption Exemption to Antitrust Liability Apply to Actions/Regulatory Schemes of Foreign Nations

From In re Transpacific Passenger Air Transp. Antitrust Litig., 2011 U.S. Dist. LEXIS 49853 (N.D. Cal. May 9, 2011): This case involves allegations that 26 airlines engaged in a ten year international conspiracy to fix the prices of transpacific air passenger travel, in violation of Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1 ...
From In re Transpacific Passenger Air Transp. Antitrust Litig., 2011 U.S. Dist. LEXIS 49853 (N.D. Cal. May 9, 2011): This case involves allegations that 26 airlines engaged in a ten year international conspiracy to fix the prices of transpacific air…
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Recent Posts

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)

FRAP 38 Sanctions Imposed Due to the “Striking Legal Emptiness” of Brief/Appeal, “A Legal Nothingburger” — Bad Faith Not Required: An Appeal “May Also Be Frivolous If It Is Filed Out Of Sheer Obstinacy” (Good Quotes)

RICO: Hobbs Act does not apply when the alleged extortion is meant to benefit the state

RICO: Indirect Injury Unrecoverable — Indirect Purchaser Rule Imported from Antitrust

Rule 11 Sanctions: (1) Improper Purpose of Harassment Reasonably Determined Based on Past Tactics (25 Lawsuits, 14 Ethics Complaints, and 150 FOIA Requests) As Well As Present Behavior — (2) Hearings Are Not Only Not Required to Satisfy Due Process But, If The Record Is Otherwise Adequate, Are Affirmatively Discouraged

RICO and Probate Exception to Federal Jurisdiction: Federal Jurisdiction over RICO Claim Not Barred by Probate Exception Even If the Federal Judgment May Be Binding on the Probate Proceedings (Or Vice Versa) — Calculating Damages Based on Diminution of Value of Estate ≠ Administration of the Estate — Doesn’t Matter If RICO Misconduct Includes Defendants’ Actions with Respect to The Estate

RICO: No Causation Where Harm Flowed Several Steps After the Fraudulent Acts — RICO Causation Same As Antitrust Causation

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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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