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

District Court Is Not Obliged to Inform Pro Se Litigants of Evidentiary or Procedural Rules and Properly Requires Adherence to Them

From Keeler vb. Aramark, 2011 U.S. App. LEXIS 7216 (10th Cir. April 7, 2011): We ... consider two procedural arguments Mr. Keeler makes — that the district court should have advised him of the requirement to authenticate his exhibits when it asked his preference on converting Wesley's motion to dismiss into one for summary judgment, a ...
From Keeler vb. Aramark, 2011 U.S. App. LEXIS 7216 (10th Cir. April 7, 2011): We … consider two procedural arguments Mr. Keeler makes — that the district court should have advised him of the requirement to authenticate his exhibits when…
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There Is Almost Never Pendent Appellate (Inextricably-Intertwined) Jurisdiction over Denial of Personal-Jurisdiction or Venue Motions on Appeal from Denial of Motion to Compel Arbitration

From Turi v. Main Street Adoption Servs., LLP, 633 F.3d 496 (6th Cir. 2011): Main Street Adoption Services, LLP and two of its officers (collectively, Main Street), none of whom are residents of Michigan, have filed this interlocutory appeal challenging the district court's conclusions that (1) it has personal jurisdiction over Main St ...
From Turi v. Main Street Adoption Servs., LLP, 633 F.3d 496 (6th Cir. 2011): Main Street Adoption Services, LLP and two of its officers (collectively, Main Street), none of whom are residents of Michigan, have filed this interlocutory appeal challenging…
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Securities — Section 21A of the Exchange Act Is Not a Statute of Repose — Differences between Statutes of Limitations and Repose — Statute of Limitations Barring Government Rights Strictly Construed in Favor of Government

From SEC v. Wyly, 2011 U.S. Dist. LEXIS 35793 (S.D.N.Y. Mar. 31, 2011): On July 29, 2010, following a six-year investigation into matters spanning almost two decades, the Securities and Exchange Commission ("SEC") filed this suit alleging thirteen Claims for securities violations by billionaire brothers Samuel Wyly and Charles J. Wyly (t ...
From SEC v. Wyly, 2011 U.S. Dist. LEXIS 35793 (S.D.N.Y. Mar. 31, 2011): On July 29, 2010, following a six-year investigation into matters spanning almost two decades, the Securities and Exchange Commission (“SEC”) filed this suit alleging thirteen Claims for…
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Facebook Case: Sophisticated Party’s Release of All Claims Extends to Unknown Securities Fraud, Despite § 29(a) of Exchange Act — Nor Does § 29(a) Trump Confidentiality Agreement Barring Use of Statements Made in Mediation

From Facebook, Inc. v. Pac. Nw. Software, Inc., 2011 U.S. App. LEXIS 7430 (9th Cir. Apr. 11, 2011): After signing the Settlement Agreement, Facebook notified the Winklevosses that an internal valuation prepared to comply with Section 409A of the tax code put the value of its common stock at $8.88 per share. The Winklevosses argue that Fa ...
From Facebook, Inc. v. Pac. Nw. Software, Inc., 2011 U.S. App. LEXIS 7430 (9th Cir. Apr. 11, 2011): After signing the Settlement Agreement, Facebook notified the Winklevosses that an internal valuation prepared to comply with Section 409A of the tax…
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RICO: Corporation + Subsidiaries + Affiliates + Customers + Independent Contractors + Regulators ≠ Enterprise

From Shields v. UnumProvident Corp., 2011 U.S. App. LEXIS 5611 (6th Cir. Mar. 17, 2011): In interpreting RICO, courts have applied a "distinctness" requirement, which requires the "person" charged with violating RICO be a separate entity from the "enterprise." See Begala v. PNC Bank, Ohio, 214 F.3d 776, 781 (6th Cir. 2000). Under this r ...
From Shields v. UnumProvident Corp., 2011 U.S. App. LEXIS 5611 (6th Cir. Mar. 17, 2011): In interpreting RICO, courts have applied a “distinctness” requirement, which requires the “person” charged with violating RICO be a separate entity from the “enterprise.” See…
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Twiqbal Does Not Apply to Affirmative Defenses — Caselaw Split

From Tyco Fire Prods. v. Victaulic Co., 2011 U.S. Dist. LEXIS 40012 (E.D. Pa. April 13, 2011): Plaintiff asks the Court to strike the affirmative defense to that effect under Federal Rule of Civil Procedure 12(f), and to dismiss the corresponding counterclaim pursuant to Rule 12(b)(6). *** Plaintiff's motion is governed by Rules ...
From Tyco Fire Prods. v. Victaulic Co., 2011 U.S. Dist. LEXIS 40012 (E.D. Pa. April 13, 2011): Plaintiff asks the Court to strike the affirmative defense to that effect under Federal Rule of Civil Procedure 12(f), and to dismiss the…
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Judicial Notice of Court Records and Factual Information Posted on Governmental Websites — Standards for Review of Pro Se Pleadings

From Chisolm v. McElvogue, 2011 U.S. Dist. LEXIS 40377 (D.S.C. Mar. 16, 2011): Plaintiff, Donsurvi Chisolm (Plaintiff), proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983. Plaintiff, a pretrial detainee in Berkeley County's Hill Finklea Detention Center (HFDC) in Moncks Corner, South Carolina, files this action in ...
From Chisolm v. McElvogue, 2011 U.S. Dist. LEXIS 40377 (D.S.C. Mar. 16, 2011): Plaintiff, Donsurvi Chisolm (Plaintiff), proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983. Plaintiff, a pretrial detainee in Berkeley County’s Hill Finklea Detention Center…
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Grable Does Not Overturn “Well-Pleaded Complaint” Doctrine for Determining Federal Jurisdiction, Which Must Arise Out of Claims Stated — Declaratory Judgment Claim Anticipating Defense Insufficient

From California Shock Trauma Air Rescue v. State Compensation Insurance Fund, 2011 U.S. App. LEXIS 6756 (9th Cir. Mar. 31, 2011): [I]s the expectation of a federal defense, without more, sufficient to establish federal jurisdiction over a state-law claim? *** CALSTAR provides air-ambulance rescue services to employees injured in ...
From California Shock Trauma Air Rescue v. State Compensation Insurance Fund, 2011 U.S. App. LEXIS 6756 (9th Cir. Mar. 31, 2011): [I]s the expectation of a federal defense, without more, sufficient to establish federal jurisdiction over a state-law claim? ***…
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No Right to Sidebars during Presentation of Testimony at Trial

From U.S. v. Aleynikov, 2011 U.S. Dist. LEXIS 33345 (S.D.N.Y. Mar. 16, 2011): Sidebars Aleynikov contends that the Court's denial of his three requests for sidebars prejudiced the defense because it made it appear to the jury that Aleynikov was acting improperly in requesting a sidebar. Aleynikov has not shown that he ...
From U.S. v. Aleynikov, 2011 U.S. Dist. LEXIS 33345 (S.D.N.Y. Mar. 16, 2011): Sidebars Aleynikov contends that the Court’s denial of his three requests for sidebars prejudiced the defense because it made it appear to the jury that Aleynikov was…
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No “Substantial Ground for Difference of Opinion” for § 1292 Purposes Where 14 District Courts in Circuit Have Addressed the Issue

From In re Regions Morgan Keegan ERISA Litig., 741 F. Supp. 2d 844 (W.D. Tenn. 2010): In deciding whether to grant an interlocutory appeal [under 28 U.S.C. § 1292], the Court considers three factors: (1) whether the order involves a "controlling question of law"; (2) whether there is "substantial ground for difference of opinion" a ...
From In re Regions Morgan Keegan ERISA Litig., 741 F. Supp. 2d 844 (W.D. Tenn. 2010): In deciding whether to grant an interlocutory appeal [under 28 U.S.C. § 1292], the Court considers three factors: (1) whether the order involves a…
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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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