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

Territoriality or Extraterritoriality of RICO Determined by Location of Enterprise — Hertz & Boyle Set Standards for Determination

From European Community v. RJR Nabisco, Inc., 2011 U.S. Dist. LEXIS 23538 (E.D.N.Y. Mar. 8, 2011): Plaintiffs' Second Amended Complaint — a structureless morass of allegations, devoid of any sequential description of events — generally asserts that Defendants engaged in a global money-laundering scheme. *** Plaintiffs allege a repres ...
From European Community v. RJR Nabisco, Inc., 2011 U.S. Dist. LEXIS 23538 (E.D.N.Y. Mar. 8, 2011): Plaintiffs’ Second Amended Complaint — a structureless morass of allegations, devoid of any sequential description of events — generally asserts that Defendants engaged in…
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Circumstantial Authentication of Email Evidence

From Commonwealth v. Capece, 2010 Pa. Dist. & Cnty. Dec. LEXIS 506 (Ct. Common Pl. Oct. 18, 2010): Shortly after exchanging e-mail addresses with Defendant, the complainant began receiving e-mails from Defendant's e-mail address on her computer at school. *** She testified that she received approximately 140 e-mails from Defendant. *** ...
From Commonwealth v. Capece, 2010 Pa. Dist. & Cnty. Dec. LEXIS 506 (Ct. Common Pl. Oct. 18, 2010): Shortly after exchanging e-mail addresses with Defendant, the complainant began receiving e-mails from Defendant’s e-mail address on her computer at school. ***…
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10b-5 Count Requires PSLRA Sanctions Inquiry Even If Plaintiff Prevails on Others — Failure to Satisfy Rule 9(b) Not Necessarily Sanctionable — Position Supported by Some Authority and Not Foreclosed in Circuit Is Not Frivolous

From Fishoff v. Coty Inc., 634 F.3d 647 (2d Cir. 2011): Because Fishoff's initial complaint included a cause of action for violations of Section 10(b) of the Securities Exchange Act of 1934, pursuant to the terms of the Private Securities Litigation Reform Act ("PSLRA"), the district court was required at the close of litigation to ente ...
From Fishoff v. Coty Inc., 634 F.3d 647 (2d Cir. 2011): Because Fishoff’s initial complaint included a cause of action for violations of Section 10(b) of the Securities Exchange Act of 1934, pursuant to the terms of the Private Securities…
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Spoliation (Civil) vs. Missing Evidence/Consciousness of Guilt (Criminal) — Criminal Defendant Need Not Show Bad Faith to Get Missing Evidence Instruction in Maryland

From Cost v. State, 417 Md. 360, 10 A.3d 184 (Ct. App. 2010): Maryland recognizes some form of jury instructions regarding missing or destroyed evidence in both civil and the criminal contexts. In the civil context, we give a jury instruction for the "spoliation of evidence" where a party has destroyed or failed to produce evidence. < ...
From Cost v. State, 417 Md. 360, 10 A.3d 184 (Ct. App. 2010): Maryland recognizes some form of jury instructions regarding missing or destroyed evidence in both civil and the criminal contexts. In the civil context, we give a jury…
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Potentially Serious Exposure of Redacted Confidential Information via ECF

Don Cowan of Raleigh, North Carolina, has identified a confidentiality glitch in the federal electronic case filing system. If a non-party files a motion (e.g., to quash a subpoena or to intervene) and thereby becomes a party for ECF purposes, that person or entity may immediately have access to all material electronically filed in the action, including confiden ...
Don Cowan of Raleigh, North Carolina, has identified a confidentiality glitch in the federal electronic case filing system. If a non-party files a motion (e.g., to quash a subpoena or to intervene) and thereby becomes a party for ECF purposes,…
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Likelihood of Unnecessary, Duplicative Litigation May Warrant Stay Pending Appeal (American Pipe) — Standards for Stay — Failure to Consent to Expedited Appeal Is a Factor Favoring Stay

From Jock v. Sterling Jewelers, Inc., 738 F. Supp. 2d 445 (S.D.N.Y. 2010): On August 18, 2010, the above-captioned plaintiffs moved for a stay of the Court's August 6, 2010 Order pending their appeal of that Order. The August 6 Order vacated an arbitrator's June 1, 2009 award, which had permitted the plaintiffs to pursue class certific ...
From Jock v. Sterling Jewelers, Inc., 738 F. Supp. 2d 445 (S.D.N.Y. 2010): On August 18, 2010, the above-captioned plaintiffs moved for a stay of the Court’s August 6, 2010 Order pending their appeal of that Order. The August 6…
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Mediation Presentation Reviewed by Party to Refresh Recollection for Deposition Ordered Produced — 3-Part Test, and 9 Factors Considered, for Production under Rule 612

From Greenwood Realty, Inc. v. Action Realty, Inc., 2011 U.S. Dist. LEXIS 15586 (D.S.C. Feb. 15, 2011): This matter is before the court on ‘[Defendants’] Motion to Compel ... [Plaintiffs] to produce an electronic copy of a 90 slide Power Point presentation first presented at the mediation of this case on September 13, 2010, and phot ...
From Greenwood Realty, Inc. v. Action Realty, Inc., 2011 U.S. Dist. LEXIS 15586 (D.S.C. Feb. 15, 2011): This matter is before the court on ‘[Defendants’] Motion to Compel … [Plaintiffs] to produce an electronic copy of a 90 slide Power…
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Whether Notes Are “Securities” within the 1934 Act — Limitations of the 9-Month Duration Requirement

From Simmons Inv., Inc. v. Conversational Computing Corp., 2011 U.S. Dist. LEXIS 15962 (D. Kan. Feb. 17, 2011): [T]he Court finds that Plaintiff has adequately alleged that the notes in question are securities. The Securities Exchange Act of 1934 define the term "security" to include "any note." [15 U.S.C. § 78c(a)(10)] However, in R ...
From Simmons Inv., Inc. v. Conversational Computing Corp., 2011 U.S. Dist. LEXIS 15962 (D. Kan. Feb. 17, 2011): [T]he Court finds that Plaintiff has adequately alleged that the notes in question are securities. The Securities Exchange Act of 1934 define…
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Statutes of Limitations Are Strictly Construed Not to Bar Government

From United States v. Rebelo, 394 Fed. Appx. 850 (3d Cir. 2010): "[S]tatutes of limitation sought to be applied to bar rights of the Government, must receive a strict construction in favor of the Government." Badaracco v. Comm'r, 464 U.S. 386, 391, 104 S. Ct. 756, 78 L. Ed. 2d 549 (1984) (quotation omitted); accord SEC v. Mohn, 465 F.3 ...
From United States v. Rebelo, 394 Fed. Appx. 850 (3d Cir. 2010): “[S]tatutes of limitation sought to be applied to bar rights of the Government, must receive a strict construction in favor of the Government.” Badaracco v. Comm’r, 464 U.S.…
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Assignee Standing — Constitutional Standing

From Perkumpulan Inv. Crisis Center v. Regal Fin. Bancorp, 2011 U.S. Dist. LEXIS 16132 (W.D. Wash. Feb. 17, 2011): Plaintiff commenced this case after the Supreme Court issued a landmark opinion on the law of assignee standing, Sprint Communications Company v. APCC Services, 554 U.S. 269 (2008). The Supreme Court fundamentally alte ...
From Perkumpulan Inv. Crisis Center v. Regal Fin. Bancorp, 2011 U.S. Dist. LEXIS 16132 (W.D. Wash. Feb. 17, 2011): Plaintiff commenced this case after the Supreme Court issued a landmark opinion on the law of assignee standing, Sprint Communications Company…
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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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