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

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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Magistriate Judges and the Power to Sanction

A panel of the Second Circuit split last year on the question whether a magistrate judge possesses the power to issue sanctions, as opposed to merely recommending them. See Kiobel v. Millson, 592 F.3d 78 (2d Cir. 2010) and our post of February 2, 2010. Under Rule 53(c)(2), special masters may impose non-contempt sanctions. It seems odd that there would be any que ...
A panel of the Second Circuit split last year on the question whether a magistrate judge possesses the power to issue sanctions, as opposed to merely recommending them. See Kiobel v. Millson, 592 F.3d 78 (2d Cir. 2010) and our…
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Insurers Suffer No RICO Injury in Covering More Expensive, Off-Label Use of Patented Drug Prescribed Due to Fraudulent Representations of Drug Company to Doctors

From Ironworkers Local Union 68 v. Astrazeneca Pharma., LP, 2011 U.S. App. LEXIS 4960 (11th Cir. Mar. 11, 2011): These cases involve payments made by health insurers for 1 the prescription drug Seroquel, an antipsychotic medication manufactured and marketed in the United States by AstraZeneca Pharmaceuticals LP ("AstraZeneca"). Seroqu ...
From Ironworkers Local Union 68 v. Astrazeneca Pharma., LP, 2011 U.S. App. LEXIS 4960 (11th Cir. Mar. 11, 2011): These cases involve payments made by health insurers for 1 the prescription drug Seroquel, an antipsychotic medication manufactured and marketed in…
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Appellate Review of District Court-Ordered Arbitration Must Specify the Standard of Review or Is Limited to FAA Grounds — Mere Recitation of “Appeal Rights” Inadequate — No Direct Appeal to Circuit from Court-Ordered Arbitration

From Johnson v. Wells Fargo Home Mortgage, Inc., 2011 U.S. App. LEXIS 2908 (9th Cir. Feb. 15, 2011): After a ... magistrate judge held a settlement conference three weeks before the trial's scheduled start date, the parties stipulated to binding arbitration of Johnson's FCRA claim. The District Court entered the parties' stipulation as ...
From Johnson v. Wells Fargo Home Mortgage, Inc., 2011 U.S. App. LEXIS 2908 (9th Cir. Feb. 15, 2011): After a … magistrate judge held a settlement conference three weeks before the trial’s scheduled start date, the parties stipulated to binding…
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Where Agency Has Its Counsel Sign Formal Determination, It Waives Privilege and Work Product for All Related Communications with Counsel and for Counsel’s Investigation — Depositions of Counsel Permitted

From Arizona ex rel. Goddard v. Frito-Lay, Inc., 2011 U.S. Dist. LEXIS 22813 (D. Ariz. Mar. 7, 2011): This discovery dispute arises in a case in which Arizona Civil Rights Division ("ACRD") brought suit against Defendants Frito-Lay. The ACRD brought suit after investigating the complaints of discrimination brought by the Intervenor Shel ...
From Arizona ex rel. Goddard v. Frito-Lay, Inc., 2011 U.S. Dist. LEXIS 22813 (D. Ariz. Mar. 7, 2011): This discovery dispute arises in a case in which Arizona Civil Rights Division (“ACRD”) brought suit against Defendants Frito-Lay. The ACRD brought…
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Rule 37(c)(1) Preclusion Sanction for Untimely Expert Report — Factors for “Substantially Justified” and “Harmless Error” Defenses

From Jalbert v. Grautski, 2008 U.S. Dist. LEXIS 119268 (D. Mass. Mar. 31, 2008): Under Fed. R. Civ. P. 37.1(c), a party's failure to disclose information or identify a witness as required by Rule 26(a) will normally result in the party being barred from using that information or witness at the trial, unless the failure was substantially ...
From Jalbert v. Grautski, 2008 U.S. Dist. LEXIS 119268 (D. Mass. Mar. 31, 2008): Under Fed. R. Civ. P. 37.1(c), a party’s failure to disclose information or identify a witness as required by Rule 26(a) will normally result in the…
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The Line Between Expert and Lay Opinion Testimony — Testimony as to Value of Real Property from an Indirect Corporate Owner — Disclosure Implications

From Reid Road Municipal Utility Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 2011 Tex. LEXIS 190 (Tex. Sup. Ct. Mar. 11, 2011): In this case we address *** whether an employee of the corporate general partner of a limited partnership qualifies to testify about the fair market value of partnership property under either the Property Ow ...
From Reid Road Municipal Utility Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 2011 Tex. LEXIS 190 (Tex. Sup. Ct. Mar. 11, 2011): In this case we address *** whether an employee of the corporate general partner of 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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