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

The Importance of Rule 403 in Evaluating Expert Testimony — Good Quote

From Brown v. Nat’l R.R. Passenger Corp., 2011 U.S. Dist. LEXIS 33216 (S.D. Miss. Mar. 28, 2011): [I]f an expert's testimony survives the threshold scrutiny under Rule 702, it is subject to further review under Rule 403. See Daubert, 509 U.S. at 595; Brock v. Caterpillar, Inc., 94 F.3d 220, 226 (6th Cir. 1996). "[E]xpert evidence can ...
From Brown v. Nat’l R.R. Passenger Corp., 2011 U.S. Dist. LEXIS 33216 (S.D. Miss. Mar. 28, 2011): [I]f an expert’s testimony survives the threshold scrutiny under Rule 702, it is subject to further review under Rule 403. See Daubert, 509…
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Samples of Overly Broad and Burdensome Interrogatories — Party May Not Refuse to Answer Interrogatories, Then Claim the Interrogatories Are Cumulative of Later Deposition — Examples of Meritorious Cumulativeness Objections

From SEC v. Berry, 2011 U.S. Dist. LEXIS 39907 (N.D. Cal. April 1, 2011): [Sample Overly Broad and Burdensome Interrogatories.] The SEC correctly points out that none of the authority cited by Berry supports her claim that the interrogatories are, "by [their] nature," overbroad and unduly burdensome. Indeed, the cases cited by ...
From SEC v. Berry, 2011 U.S. Dist. LEXIS 39907 (N.D. Cal. April 1, 2011): [Sample Overly Broad and Burdensome Interrogatories.] The SEC correctly points out that none of the authority cited by Berry supports her claim that the interrogatories are,…
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Mandatory Abstention from Federal “Related to” Bankruptcy Jurisdiction — What Constitutes “Timely Adjudicated” within 28 U.S.C. § 1334(c)(2)

From Parmalat Capital Finance Limited v. Bank of Am. Corp., 632 F.3d 71 (2d Cir. 2011): The questions presented are (1) whether the district court erred in exercising jurisdiction over plaintiffs' claims, pursuant to 28 U.S.C. § 1334(b); and (2) whether the district court properly declined to abstain from exercising that jurisdiction, p ...
From Parmalat Capital Finance Limited v. Bank of Am. Corp., 632 F.3d 71 (2d Cir. 2011): The questions presented are (1) whether the district court erred in exercising jurisdiction over plaintiffs’ claims, pursuant to 28 U.S.C. § 1334(b); and (2)…
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When Sanctions Rule Provides “Substantially Justified” Defense, District Court Must Rule Whether Conduct was Substantially Justified — Deposition Misconduct and Untimely, Revised, Post-Deposition Expert Report

From DeVille v. Givaudan Frangrances Corp., 2011 U.S. App. LEXIS 6245 (3d Cir. Mar. 25, 2011): Two discovery events are relevant to this appeal. The first occurred during the deposition of an expert witness named Michael Soudry. Elliott produced Soudry to testify about alleged statistical evidence [*5] of age discrimination at Givaudan ...
From DeVille v. Givaudan Frangrances Corp., 2011 U.S. App. LEXIS 6245 (3d Cir. Mar. 25, 2011): Two discovery events are relevant to this appeal. The first occurred during the deposition of an expert witness named Michael Soudry. Elliott produced Soudry…
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Counsel Not Permitted to Make Independent Claim of Work Product Where Client Has Effected Waiver of Privilege and Work Product — Client’s Assertion of Advice of Counsel Defense Prevails

From SEC v. McNaul, 271 F.R.D. 661 (D. Kan. 2010): In January 2009, the Receiver issued and served a subpoena on Baker & McKenzie seeking documents related to the firm's former representation of several defendants in this action. *** Baker & McKenzie [maintains] that while the Receiver is the successor-in-interest to the corporat ...
From SEC v. McNaul, 271 F.R.D. 661 (D. Kan. 2010): In January 2009, the Receiver issued and served a subpoena on Baker & McKenzie seeking documents related to the firm’s former representation of several defendants in this action. *** Baker…
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Pendent Venue — Discretionary — Two Approaches

From Vivant Pharma., LLC v. Clinical Formula, LLC, 2011 U.S. Dist. LEXIS 37343 (S.D. Fla. Mar. 31, 2011): Vivant's Amended Complaint alleges various causes of action for patent infringement, federal and common law trademark infringement, federal and common law unfair competition, misappropriation of trade secrets, breach of contract, br ...
From Vivant Pharma., LLC v. Clinical Formula, LLC, 2011 U.S. Dist. LEXIS 37343 (S.D. Fla. Mar. 31, 2011): Vivant’s Amended Complaint alleges various causes of action for patent infringement, federal and common law trademark infringement, federal and common law unfair…
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New York Justices on the U.S. Supreme Court: John Jay

Download associated file: John Jay Lecture NY Justices on US Supreme Court.pdf  On Wednesday, May 4, 2011, Justice Ruth Bader Ginsburg and former Chief Judge Judith Kaye will be introducing a lecture on John Jay, the first Chief Justice of the U.S. Supreme Court, as part ...
Download associated file: John Jay Lecture NY Justices on US Supreme Court.pdf  On Wednesday, May 4, 2011, Justice Ruth Bader Ginsburg and former Chief Judge Judith Kaye will be introducing a lecture on John Jay, the first Chief Justice…
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Interrogatories Asking Who Has Been Interviewed and What They Said Are Permissible Unless Asked in a Way that Effectively Infringes on Work Product — Good Quote

From United States v. Capital Tax Corp., 2011 U.S. Dist. LEXIS 13242 (N.D. Ill. Feb. 10, 2011): The challenged interrogatories and document requests ask the government to identify, among other things, each person who made decisions regarding whether to name Dukatt in this case, the dates on which those determinations were made, and any d ...
From United States v. Capital Tax Corp., 2011 U.S. Dist. LEXIS 13242 (N.D. Ill. Feb. 10, 2011): The challenged interrogatories and document requests ask the government to identify, among other things, each person who made decisions regarding whether to name…
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New Article: Developments in the Federal Law of Sanctions

A new article exploring recent trends in federal sanctions decisions can be accessed here. The five areas analyzed are: (1) extrajudicial misconduct — the required nexus between the offending act and the federal litigation; (2) the relevance of the offender’s ability ...
A new article exploring recent trends in federal sanctions decisions can be accessed here. The five areas analyzed are: (1) extrajudicial misconduct — the required nexus between the offending act and the federal litigation; (2) the relevance of the…
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Circuit Split As to Whether § 1367 Confers Supplemental Jurisdiction on Bankruptcy Courts — Federal Courts Generally Decline to Exercise Supplemental Jurisdiction If Presented with First Impression Issue of State Law

From Rhiel v. Central Mortgage Co., 2011 Bankr. LEXIS 1008 (Bankr. S.D. Ohio Mar. 30, 2011): It appears to be well-established that district courts have supplemental jurisdiction over all claims that are so related to claims asserted in a bankruptcy case or adversary proceeding that they form part of the same case or controversy.
From Rhiel v. Central Mortgage Co., 2011 Bankr. LEXIS 1008 (Bankr. S.D. Ohio Mar. 30, 2011): It appears to be well-established that district courts have supplemental jurisdiction over all claims that are so related to claims asserted in a bankruptcy…
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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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