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

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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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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Recent Posts

“RICO Is a Judge’s Nightmare” — “The Requisite RICO Pleading Standards Are Far From Explicit, And The RICO Jurisprudence Offers Courts (And Plaintiffs) Little Guidance” (Good Quotes) — Common Elements of § 1962(a), (c) and (d)-Based Claims — Closed-End Continuity: Duration > 1 Year = Substantial Period of Time — Continuity: Courts Skeptical If Number of Victims and Schemes Is Limited — Untargeted Persons Who Suffer Derivative Injury Do Not Add to the Number of Victims Considered for Continuity Purposes — Open Ended Continuity Can Be Established by Showing Defendant Commits Predicate Acts As “Regular Way of Doing Business” — Citing the Existence of Other Lawsuits Alleging Similar Predicates ≠ Pleading Facts Demonstrating Defendant’s Commission of Similar Predicates Against Others

Practice of Seeking Leave to Amend after The Case Is Dismissed Is Discouraged

RICO: Release Executed After Alleged RICO Violations Extinguishes RICO Claim — Eighth Circuit Declines to Address Enforceability of A Release “That Is An Integral Part of An Alleged RICO Scheme Or That Immunizes Future RICO Conduct

Pleading — “Civil pleadings are supposed to mark the boundaries for discovery; discovery is not supposed to substitute for definite pleading” (Good Quote) — Shotgun Pleadings (11th Circuit):  Four Categories/Types

Rule 37(c)(1) Exclusion of Untimely Expert Report: Failure to Argue Harmlessness Essentially Waives Issue

Rule 37(b) Sanctions — Exclusion of Supplemental Expert Report for Advancing New Opinions — Third Circuit Exclusion Factors — “Importance of Excluded Evidence:” If, As Proponent Argues, There Is Nothing New, Then Exclusion Doesn’t Harm Proponent; If There Is, It Harms Opponent

RICO Pleading: Generic Allegations of Fraud (Failing Even to Set Forth Any False Representation) And Extortion (Failing to Describe Actual Threats) Too Conclusory to State a Claim

RICO Standing: Antitrust’s Indirect Purchaser Rule Applies in RICO Cases, Barring Claims by Indirect Purchasers Two Or More Steps Removed From The Violator In A Distribution Chain (Here, Truck Purchasers/Lessees Suing Manufacturer), Though Court Considers Bar “Unsupported by Sensible Principles”

RICO Pleading: Statutory Directive That RICO Be Liberally Construed Does Not Extend to More Liberal Pleading Requirements

Inherent Power and FRAP 38 Sanctions — Inherent Power Sanctions (Here, A Deterrence Payment of $25,000 to the Court — Goodyear Issue Not Addressed) May Be Imposed in Addition to Statutory Attorney’s Fees under 35 U.S.C. § 285 (Exceptional Patent Case) — § 285 Does Not Preclude A Separate Award of Sanctions Or Fees under Another Authority — Recidivism (25 Prior Lawsuits with Same Perceived Venue Deficiency) A Factor — Fact That Rule 11 Sanctions Were Unavailable Due to Dismissal of Lawsuit Opened the Door to Inherent Power Sanctions Under Chambers — FRAP 38 Sanctions Denied Because Issue Previously Unaddressed in Circuit — A Meritless Appeal Is By No Means Necessarily A Frivolous One (Good Quote)

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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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