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

Rule 54(b) — Factors for Determining Appropriateness of Entering Partial Judgment Pursuant to Rule 54(b)

From Paetec Commc’ns, Inc. v. MCI Commc’ns Servs., Inc., 2011 U.S. Dist. LEXIS 56252 (E.D. Pa. May 9, 2011): Under Rule 54(b), where a suit involves multiple claims, a district court may enter final judgment on a subset of claims so long as there is "no just reason for delay," Fed. R. Civ. P. 54(b); (aa) Deciding whether to ...
From Paetec Commc’ns, Inc. v. MCI Commc’ns Servs., Inc., 2011 U.S. Dist. LEXIS 56252 (E.D. Pa. May 9, 2011): Under Rule 54(b), where a suit involves multiple claims, a district court may enter final judgment on a subset of claims…
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Eleventh-Hour Contact of Deponent to Delay Deposition = $102,000 Inherent Power Sanction — Recidivism Relevant in Assessing Propriety of Sanctions

From E. & J. Gallo Winery, 2011 U.S. App. LEXIS 8844 (9th Cir. April 29, 2011): Defendant's counsel *** after numerous discovery violations, directly contacted counsel for a key third-party witness in a successful attempt to delay a deposition. A magistrate judge found that [defense counsel] manipulated late-hour events to avoid the ...
From E. & J. Gallo Winery, 2011 U.S. App. LEXIS 8844 (9th Cir. April 29, 2011): Defendant’s counsel *** after numerous discovery violations, directly contacted counsel for a key third-party witness in a successful attempt to delay a deposition. A…
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Failure to Attach Required State Court Papers to Notice of Removal = De Minimis Procedural Defect Not Requiring Remand — Case Law Split

From Countryman v. Farmers Ins. Exch., 2011 U.S. App. LEXIS 9499 (10th Cir. May 10, 2011): Defendants-Appellants Farmers Insurance Exchange ("Farmers Insurance") and Mid-Century Insurance Company ("Mid-Century Insurance") removed a putative class action from state court to federal district court. Upon motion of Plaintiff-Appellee, Lawre ...
From Countryman v. Farmers Ins. Exch., 2011 U.S. App. LEXIS 9499 (10th Cir. May 10, 2011): Defendants-Appellants Farmers Insurance Exchange (“Farmers Insurance”) and Mid-Century Insurance Company (“Mid-Century Insurance”) removed a putative class action from state court to federal district court.…
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RICO — Fourth Circuit Indicates Acceptance of, While Reserving on, Separate Accrual Test — Look-Back Beyond 4 Years for Predicate Acts to Show Pattern Doesn’t Mean Damages Are Awardable for Out-of-Time Acts

From CSX Transportation, Inc. v. Gilkison, 406 F. App'x 723 (4th Cir. 2010): CSX Transportation, Incorporated ("CSX") filed a complaint against Robert V. Gilkison ("Gilkison"), Peirce, Raimond & Coulter, P.C. ("Peirce firm"), Robert N. Peirce, Jr. ("Peirce"), Louis A. Raimond ("Raimond"), Mark T. Coulter ("Coulter"), and Ray Harron, M. ...
From CSX Transportation, Inc. v. Gilkison, 406 F. App’x 723 (4th Cir. 2010): CSX Transportation, Incorporated (“CSX”) filed a complaint against Robert V. Gilkison (“Gilkison”), Peirce, Raimond & Coulter, P.C. (“Peirce firm”), Robert N. Peirce, Jr. (“Peirce”), Louis A. Raimond…
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A Refreshing Pox-on-Both-Your-Houses Approach to Sanctions (Seventh Circuit) — Good Quote

From Moore v. Vital Prods., Inc., 2011 U.S. App. LEXIS 10436 (7th Cir. May 25,, 2011): Vital has come, shotgun in tow, seeking sanctions. See United States v. Levy, 741 F.2d 915, 924 (7th Cir. 1984) (noting that "the shotgun inclusion of issues . . . runs the risk of obscuring the significant issues by dilution"). In the distri ...
From Moore v. Vital Prods., Inc., 2011 U.S. App. LEXIS 10436 (7th Cir. May 25,, 2011): Vital has come, shotgun in tow, seeking sanctions. See United States v. Levy, 741 F.2d 915, 924 (7th Cir. 1984) (noting that “the shotgun…
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Advisory Committee Note to Rule 11 Does Not Create Any Exception to the 21-Day Safe Harbor Requirement

From Fierro v. Gallucci, 2011 U.S. App. LEXIS 10388 (2d Cir. May 23, 2011): Here, the district court was required to deny plaintiffs' motion for sanctions for failure to comply with the 21-day "safe harbor," which requires Rule 11 motions to be served on the opposing party 21 days prior to their filing, in order to afford that party an ...
From Fierro v. Gallucci, 2011 U.S. App. LEXIS 10388 (2d Cir. May 23, 2011): Here, the district court was required to deny plaintiffs’ motion for sanctions for failure to comply with the 21-day “safe harbor,” which requires Rule 11 motions…
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The Problems with Legislative History

From Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 568 (2005): First, legislative history is itself often murky, ambiguous, and contradictory. Judicial investigation of legislative history has a tendency to become, to borrow Judge Leventhal's memorable phrase, an exercise in "'looking over a crowd and picking out your friends.'" Se ...
From Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 568 (2005): First, legislative history is itself often murky, ambiguous, and contradictory. Judicial investigation of legislative history has a tendency to become, to borrow Judge Leventhal’s memorable phrase, an exercise…
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No Fed.R.App.P. 38 Sanctions Absent Separate Motion — § 1927 Sanctions Particularly Apt for Groundless Appeal of Arbitration Award

From Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Whitney, 2011 U.S. App. LEXIS 7041 (10th Cir. April 4, 2011): Defendants-Appellants Pamela Whitney, the Estate of Mary Whitney, and the Estate of Suzanne Whitney appeal from the district court's order granting plaintiff Merrill Lynch's motion to confirm an arbitration award in this int ...
From Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Whitney, 2011 U.S. App. LEXIS 7041 (10th Cir. April 4, 2011): Defendants-Appellants Pamela Whitney, the Estate of Mary Whitney, and the Estate of Suzanne Whitney appeal from the district court’s order…
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Email from Consumer to Trademark Plaintiff’s Customer Service Department Admissible on Issue of Confusion under State of Mind Exception to Hearsay Rule

From T. Marzetti Co. v. Roskam Baking Co., No. 2:90 CV 584, 2010 WL 909582, at *2 (S.D. Ohio March 11, 2010): Roskam's Email Motion in Limine to prevent Marzetti from using an email dated July 13, 2009, sent from Diane Meale to Roskam's Customer Service Department (the “Meale Email”) as evidence in the likelihood of confusion an ...
From T. Marzetti Co. v. Roskam Baking Co., No. 2:90 CV 584, 2010 WL 909582, at *2 (S.D. Ohio March 11, 2010): Roskam’s Email Motion in Limine to prevent Marzetti from using an email dated July 13, 2009, sent from…
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Experts — Lack of Certification in Field Not Disqualifying — Expert’s Failure to Remember Every Document Reviewed Irrelevant, As Is Mistaken Understanding of Relevant Dates — Good Quote

From GE Capital Corp. v. Nichols, 2011 U.S. Dist. LEXIS 46095 (D. Conn. April 29, 2011): As an initial matter, Bodeker appears well-qualified to render an opinion in this case. He has spent sixteen years in the concrete pumping industry, primarily in sales but also in marketing. *** Bodeker has sold or supervised the sale of over 1000 c ...
From GE Capital Corp. v. Nichols, 2011 U.S. Dist. LEXIS 46095 (D. Conn. April 29, 2011): As an initial matter, Bodeker appears well-qualified to render an opinion in this case. He has spent sixteen years in the concrete pumping industry,…
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Recent Posts

Supreme Court: Notice of Appeal Filed After The Original Deadline But Before Reopening by The District Court Is Timely — It Relates Forward to The Date of The Order Making The Appeal Possible — Second Notice of Appeal After Reopening Unnecessary

Rule 37 Default Judgment: Second Circuit’s Four-Factor Test for Imposing Defaults and Three-Factor Test for Lifting Them

Rule 37 Default Judgment — Tenth Circuit Multifactor Test Is Not Exhaustive But a Non-Exclusive List of “Sometimes-Helpful Criteria Or Guide Posts”— Appeal from Preliminary Injunction Mooted by Entry of Permanent Injunction — Difficulty in Collecting Damages Award May Equal Irreparable Injury — A Monetary Award For Past Conduct Does Not Preclude A Permanent Injunction Against Similar Wrongful Conduct Likely To Occur In The Future

RICO: Cover-Up Within Limitations Period of Untimely RICO Violation “Was Merely A Continuation” Of The Original Injury And Could Not Be Used “As A ‘Bootstrap’ To Salvage [The] Time-Barred Claims–Declining to Apply Pinkerton Doctrine to Civil RICO Claims

Inherent Power — Circumstantial Evidence — Fact That Bad Faith May Be Shown by Establishing That Conduct Was So Egregious It Was Necessarily Committed in Bad Faith Does Not Mean That Bad Faith Must Be The Sole Explanation for The Bad Conduct

RICO Causation: Testing Labs’ Misstatements As to Alcohol Tests’ Efficacy Not Communicated to Plaintiffs’ Employers Did Not Cause Plaintiffs’ Professional Harm

Supreme Court: Standing — When The Government Prohibits Or Impedes Company A from Using Company B’s Product, Both Are Objects of the Government’s Action And Have Standing to Contest It — “To Demonstrate Standing, Plaintiffs Must Answer A Basic Question—‘What’s It To You?’” (Good Quote) — Expert Evidence Not Required to Establish Standing — “Judges Are Not Required To Exhibit A Naiveté From Which Ordinary Citizens Are Free’” (Good Quote)

Rule 37(d) Sanctions — For Failure to Serve Answers, Objections, Or Written Response to Discovery Requests — Are Not Limited to Intentional Misconduct; Even Innocent Mistakes May Be Covered

Sanctions: (1) Rule 11 Does Not Apply to Litigation Papers Initially Filed in State Court — Only Reaffirmance in Federal Court Post-Removal Is Subject to Sanction — (2) “The Fact That A Legal Theory Is A Long-Shot Does Not Necessarily Mean It Is Sanctionable” (Good Quote)

Supreme Court: Relief under Rule 60(b)(6) Requires Extraordinary Circumstances Even If It Is Invoked to Allow Amendment of The Complaint–Rule 15’s Liberal Approach to Amendment Does Not Change That (Reversing Second Circuit)

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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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