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 Lawsuit Abuse Reduction Act of 2011

Download associated files: HR 966 Lawsuit Abuse Reduction Act of 2011.pdf, Rule 11 as Proposed to be Amended by LARA.pdf  Legislation has been introduced in Congress to reinstate, i ...
Download associated files: HR 966 Lawsuit Abuse Reduction Act of 2011.pdf, Rule 11 as Proposed to be Amended by LARA.pdf  Legislation has been introduced in Congress to reinstate, in a more aggressive form, the 1983 version of Federal…
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In Determining Arbitrability, Court Focuses on Factual Allegations of Complaint, Not Legal Claims

From E.S. Originals Inc. v. Totes Isotoner Corp., 734 F. Supp. 2d 523 (S.D.N.Y. 2010): "Because the arbitration clause is narrow, the next question is 'whether the dispute is over an issue that is on its face within the purview of the clause, or over some collateral issue that is somehow connected to the main agreement that contains ...
From E.S. Originals Inc. v. Totes Isotoner Corp., 734 F. Supp. 2d 523 (S.D.N.Y. 2010): “Because the arbitration clause is narrow, the next question is ‘whether the dispute is over an issue that is on its face within the purview…
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Connecticut Would Not Recognize Fiduciary Duty to Creditors when Corporation Is in Zone of Insolvency — Would Follow Lead of Delaware Supreme Court and S.D.N.Y.

From Master-Halco, Inc. v. Scillia, Dowling & Natarelli, LLC, 2010 U.S. Dist. LEXIS 142036 (D. Conn. April 5, 2010): The Court agrees with Defendants that Connecticut courts have not recognized a cause of action for breach of fiduciary duty on behalf of creditors against officers and directors of a debtor that is in the zone of insolvenc ...
From Master-Halco, Inc. v. Scillia, Dowling & Natarelli, LLC, 2010 U.S. Dist. LEXIS 142036 (D. Conn. April 5, 2010): The Court agrees with Defendants that Connecticut courts have not recognized a cause of action for breach of fiduciary duty on…
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Appeal under FAA of Denial of Motion to Compel Arbitration Stays All Proceedings in District Court — No Reason to Order Preservation Already Required by Law (Good Quote)

From Lawson v. Life of the South Ins. Co., 738 F. Supp. 2d 1376 (M.D. Ga. 2010): Citing Blinco v. Green Tree Servicing, LLC, 366 F.3d 1249, 1251 (11th Cir. 2004), and Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1366-69 (11th Cir. 1997), Defendant opposes Plaintiffs' Motion to Preserve..., moving this Court on two independent grounds t ...
From Lawson v. Life of the South Ins. Co., 738 F. Supp. 2d 1376 (M.D. Ga. 2010): Citing Blinco v. Green Tree Servicing, LLC, 366 F.3d 1249, 1251 (11th Cir. 2004), and Chudasama v. Mazda Motor Corp., 123 F.3d 1353,…
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Court Has Federal Question Jurisdiction to Entertain Applications for Discovery in Foreign Proceedings by Virtue of 28 U.S.C. § 1782 — Neither Diversity nor Independent Federal Question Jurisdiction Required

From Rusal v. Trafigura, A.G., 2011 U.S. Dist. LEXIS 26897 (D. Conn. Mar. 16, 2011): United Company Rusal, PLC and United Company Rusal Investment Management, LLC (collectively "Rusal") filed an emergency order to permit discovery for use in aid of foreign litigation pursuant to 28 U.S.C. §1782. 1 Trafigura A.G. ("Trafigura"), the part ...
From Rusal v. Trafigura, A.G., 2011 U.S. Dist. LEXIS 26897 (D. Conn. Mar. 16, 2011): United Company Rusal, PLC and United Company Rusal Investment Management, LLC (collectively “Rusal”) filed an emergency order to permit discovery for use in aid of…
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FSIA Does Not Abrogate Court’s Inherent Power to Impose Contempt Sanctions on Foreign Sovereign (Circuit Split) — Enforcement May Be Another Matter — Views of U.S. Government on FSIA Entitled to No Deference

From FG Hemisphere Assocs., LLC v. Democratic Republic of Congo, 2011 U.S. App. LEXIS 5012 (D.C. Cir. Mar. 15, 2011): This case, once pared down, is really less than meets the eye. To be sure, we encounter for the first time a contempt sanction imposed on a foreign sovereign in a proceeding brought under the Foreign Sovereign Immunities ...
From FG Hemisphere Assocs., LLC v. Democratic Republic of Congo, 2011 U.S. App. LEXIS 5012 (D.C. Cir. Mar. 15, 2011): This case, once pared down, is really less than meets the eye. To be sure, we encounter for the first…
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Striking of Answer, Dismissal of Counterclaims and Entry of Default Judgment as Sanction for Destruction of Electronically-Stored Information, Disregard of Court Orders, and Fraud on the Court — Good Quote

From Philips Elecs. N. Am. V. BC Technical, 2010 U.S. Dist. LEXIS 141472 (D. Utah July 27, 2010): BCT's behavior as it relates to the five laptops at issue has interfered with the judicial process in several ways. BCT destroyed a massive number of documents and disobeyed two direct court orders. In response to Philips' assertions that t ...
From Philips Elecs. N. Am. V. BC Technical, 2010 U.S. Dist. LEXIS 141472 (D. Utah July 27, 2010): BCT’s behavior as it relates to the five laptops at issue has interfered with the judicial process in several ways. BCT destroyed…
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Arbitration — Class Action Waiver Void Where Its Practical Effect Is to Preclude Antitrust Claim

From In re Am. Express Merchants’ Litig., 2011 U.S. App. LEXIS 4507 (2d Cir. Mar. 8, 2011): This case returns to us from the Supreme Court. ***[I]n In re American Express Merchants Litigation, 554 F.3d 300 (2d Cir. 2009) ... we considered the enforcement of a mandatory arbitration clause in a commercial contract also containing a "cl ...
From In re Am. Express Merchants’ Litig., 2011 U.S. App. LEXIS 4507 (2d Cir. Mar. 8, 2011): This case returns to us from the Supreme Court. ***[I]n In re American Express Merchants Litigation, 554 F.3d 300 (2d Cir. 2009) ……
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In Diversity Action, Necessary Party Status Determined by Federal Law — Error to Award Attorneys’ Fees for Entire Action as Rule 11 Sanction Rather Than for Period when Claimant Should Have Realized Claim Was Frivolous

From Dearborn Street Building Assocs. v. Silverman & Morris, PLLC, 2011 U.S. App. LEXIS 3287 (6th Cir. Feb. 17, 2011): In diversity cases, the question of whether an individual or entity is a necessary party is a procedural question governed by federal law. See Hooper v. Wolfe, 396 F.3d 744, 749 n.4 (6th Cir. 2005) (citing Provident Tr ...
From Dearborn Street Building Assocs. v. Silverman & Morris, PLLC, 2011 U.S. App. LEXIS 3287 (6th Cir. Feb. 17, 2011): In diversity cases, the question of whether an individual or entity is a necessary party is a procedural question governed…
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Where Former Client Asserts a Non-Frivolous Malpractice Defense to Claim for Fees, Lawyer Not Entitled to Summary Judgment on Account-Stated Claim

From Morrison Cohen LLP v. Parrish, 2011 NY Slip Op 30354U, 2011 N.Y. Misc. LEXIS 335 (Sup. Ct. N.Y. County Feb. 9, 2011) (entering summary judgment for the plaintiff): Case law holds that where a non-frivolous claim or affirmative defense of legal malpractice is "inextricably intertwined with a claim for fees for the same representat ...
From Morrison Cohen LLP v. Parrish, 2011 NY Slip Op 30354U, 2011 N.Y. Misc. LEXIS 335 (Sup. Ct. N.Y. County Feb. 9, 2011) (entering summary judgment for the plaintiff): Case law holds that where a non-frivolous claim or affirmative defense…
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Recent Posts

RICO: Indirect Purchasers (Car Buyers/Renters) Lack Standing to Sue Manufacturers for RICO Violations Even Though Intermediaries (Auto Dealer Direct Purchasers) Lack Any Damages

RICO: Statutory Requirement that RICO Be Liberally Construed Does Not Establish a More Liberal Pleading Standard for RICO Claims — “To Be Sure, Adequately Pleading a RICO Claim Can Be Challenging” (Good Quote) — Court May Dismiss Action Pursuant to Rule 41(b) Absent A Motion

Electronic Spoliation/Rule 37(e): (1) Finding of Recklessness But Neither Gross Negligence Nor Willfulness in Loss of Video Evidence Precludes Rule 37(e)(2)’s Severest Sanctions Because (i) No Intent to Deprive and (ii) Rule 37(e)(2) Displaces District Court’s Power to Invoke Inherent Power to Impose Those Sanctions — (2) Appellate Review = Abuse of Discretion, With The Caveat That Whether The District Court Applied The Correct Legal Standards Is Reviewed De Novo — (3) Inherent Power Is Often Available As An Alternate Source of Sanctioning Power But Can Be Limited by Rule or Statute, Something Which Courts Do Not Lightly Presume — (4) The Text of Rule 37(e)(2), As Confirmed by the Advisory Committee Note, Displaces Inherent Power to Impose the Sanctions Specified in the Rule or Any More Severe Sanctions — (5) “Intent to Deprive” in Rule 37(e)(2) = “The Willful Destruction Of Evidence With The Purpose Of Avoiding Its Discovery By An Adverse Party” — (6) Appellate Standing Conferred by Virtue of Issuance of Sanctions Regardless of Merits Outcome — (7) Value of Advisory Committee Notes in Interpreting Rules Enacted without Change Despite General Reticence to Rely on Legislative History

RICO: (1) Plaintiff Need Not Suffer Injury from Each Predicate Act to Establish Standing, And The Pattern May Include Predicates As to Which No Plaintiff Has Standing — (2) 7 Elements of a Civil RICO Claim (2d Circuit Articulation) Which Must Be Established As to Each Defendant — (3) Requirements of an Association-in-Fact Enterprise — (4) Each Defendant Must Personally Commit 2 or More Predicate Acts — (5) Pattern of Racketeering Activity: Horizontal and Vertical Elements — (6) No Requirement That All Members of a RICO Enterprise Joined at Inception — Can Join Over Time/Others Can Quit — (7) Cannot Charge 2 Predicate Acts Where One Action Violates Two Statutes — (8) A Footnote to Consider for Briefs: “Unless Otherwise Noted, When Quoting Judicial Decisions This Order Accepts All Alterations And Omits All Citations, Footnotes, And Internal Quotation Marks.”

For An Appeal to Be Timely, A Motion for Reconsideration in The District Court (A Rule 59(e) Motion) Must Be Filed, And Not Just Served within 30 Days of The Decision, to Toll The 30-Day Period for Filing An Appeal

There Is No Good-Faith Defense For Issuing An Overly Burdensome Subpoena

Purposes of Rule 37 and Section 1927 Sanctions

While Rule 11 Doesn’t Apply to Appellate Proceedings (Unless It Has Been Incorporated in Local Appellate Rules), Rule 11 Caselaw Is Looked to for Guidance in Interpreting Applicable Sanctions Powers on Appeal

Rule 11 Sanctions & Appellate Review: Abuse of Discretion Standard Applies Unless Sanctions Are Based Solely (Not Just in Part) on Legal Issues, in Which Case Review Is De Novo

Rule 37(b)(2)(A) Sanctions for Altering Expert’s 26(a)(2)(B) Report — Without the Expert’s Knowledge or Approval — by Converting It from PDF to Word, Changing Headings and Other Formatting, and Omitting a Page of Relevant Text and Appendices, Even Though Expert Testified That The Overall Substance of the Report Was Unchanged — Rule 37(b)(2)(A) Sanctions May Be Reversed If Failure to Comply with Discovery Order Was Due to Misunderstanding or Inability to Comply

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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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