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

Unserved Forum Defendant (Lone Defendant in Case) May Not Remove — Case Law Split — Out-of-State Co-Defendant May Remove While Forum Defendant Unserved — “Absurd Results” Rule of Statutory Construction

From Hawkins v. Cottrell, Inc., 2011 U.S. Dist. LEXIS 54141 (N.D. Ga. May 19, 2011): On December 14, 2010, defendant filed a notice of removal in this court seeking to remove the action based on diversity of citizenship. At the time of removal, defendant had not yet been served in the state action. Plaintiffs are both Tennesse ...
From Hawkins v. Cottrell, Inc., 2011 U.S. Dist. LEXIS 54141 (N.D. Ga. May 19, 2011): On December 14, 2010, defendant filed a notice of removal in this court seeking to remove the action based on diversity of citizenship. At the…
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Issues Inadequately Briefed on Appeal Are Deemed Waived

From Real Estate Innovations, Inc. v. Houston Ass’n of Realtors, Inc., 2011 U.S. App. LEXIS 7882 (5th Cir. April 15, 2011): There *** are a number of issues mentioned in REI's brief in too cursory a fashion for us to consider. Federal Rule of Appellate Procedure 28 requires that an appellant's brief "contain . . . [the] appellant's c ...
From Real Estate Innovations, Inc. v. Houston Ass’n of Realtors, Inc., 2011 U.S. App. LEXIS 7882 (5th Cir. April 15, 2011): There *** are a number of issues mentioned in REI’s brief in too cursory a fashion for us to…
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Rule 54(b) — Factors for Determining Appropriateness of Entering Partial Judgment Pursuant to Rule 54(b)

From Paetec Commc’ns, Inc. v. MCI Commc’ns Servs., Inc., 2011 U.S. Dist. LEXIS 56252 (E.D. Pa. May 9, 2011): Under Rule 54(b), where a suit involves multiple claims, a district court may enter final judgment on a subset of claims so long as there is "no just reason for delay," Fed. R. Civ. P. 54(b); (aa) Deciding whether to ...
From Paetec Commc’ns, Inc. v. MCI Commc’ns Servs., Inc., 2011 U.S. Dist. LEXIS 56252 (E.D. Pa. May 9, 2011): Under Rule 54(b), where a suit involves multiple claims, a district court may enter final judgment on a subset of claims…
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Eleventh-Hour Contact of Deponent to Delay Deposition = $102,000 Inherent Power Sanction — Recidivism Relevant in Assessing Propriety of Sanctions

From E. & J. Gallo Winery, 2011 U.S. App. LEXIS 8844 (9th Cir. April 29, 2011): Defendant's counsel *** after numerous discovery violations, directly contacted counsel for a key third-party witness in a successful attempt to delay a deposition. A magistrate judge found that [defense counsel] manipulated late-hour events to avoid the ...
From E. & J. Gallo Winery, 2011 U.S. App. LEXIS 8844 (9th Cir. April 29, 2011): Defendant’s counsel *** after numerous discovery violations, directly contacted counsel for a key third-party witness in a successful attempt to delay a deposition. A…
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Failure to Attach Required State Court Papers to Notice of Removal = De Minimis Procedural Defect Not Requiring Remand — Case Law Split

From Countryman v. Farmers Ins. Exch., 2011 U.S. App. LEXIS 9499 (10th Cir. May 10, 2011): Defendants-Appellants Farmers Insurance Exchange ("Farmers Insurance") and Mid-Century Insurance Company ("Mid-Century Insurance") removed a putative class action from state court to federal district court. Upon motion of Plaintiff-Appellee, Lawre ...
From Countryman v. Farmers Ins. Exch., 2011 U.S. App. LEXIS 9499 (10th Cir. May 10, 2011): Defendants-Appellants Farmers Insurance Exchange (“Farmers Insurance”) and Mid-Century Insurance Company (“Mid-Century Insurance”) removed a putative class action from state court to federal district court.…
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RICO — Fourth Circuit Indicates Acceptance of, While Reserving on, Separate Accrual Test — Look-Back Beyond 4 Years for Predicate Acts to Show Pattern Doesn’t Mean Damages Are Awardable for Out-of-Time Acts

From CSX Transportation, Inc. v. Gilkison, 406 F. App'x 723 (4th Cir. 2010): CSX Transportation, Incorporated ("CSX") filed a complaint against Robert V. Gilkison ("Gilkison"), Peirce, Raimond & Coulter, P.C. ("Peirce firm"), Robert N. Peirce, Jr. ("Peirce"), Louis A. Raimond ("Raimond"), Mark T. Coulter ("Coulter"), and Ray Harron, M. ...
From CSX Transportation, Inc. v. Gilkison, 406 F. App’x 723 (4th Cir. 2010): CSX Transportation, Incorporated (“CSX”) filed a complaint against Robert V. Gilkison (“Gilkison”), Peirce, Raimond & Coulter, P.C. (“Peirce firm”), Robert N. Peirce, Jr. (“Peirce”), Louis A. Raimond…
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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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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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