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

RICO — Fraud Claim That Is Mere Restatement of Contract Claim Inadequate to State Mail or Wire Fraud Predicate — When Fraud Claim Is Not Mere Restatement of Contract Claim under New York Law

From Sampson v. Medisys Health Network Inc., 2011 U.S. Dist. LEXIS 12697 (E.D.N.Y. Feb. 8, 2011): To state a RICO claim pursuant to 18 U.S.C. §§ 1962 and 1964(c), a plaintiff must, inter alia, allege a defendant participated or conspired to participate in a "pattern of racketeering activity." 18 U.S.C. § 1962(a), (b), (c) and (d). P ...
From Sampson v. Medisys Health Network Inc., 2011 U.S. Dist. LEXIS 12697 (E.D.N.Y. Feb. 8, 2011): To state a RICO claim pursuant to 18 U.S.C. §§ 1962 and 1964(c), a plaintiff must, inter alia, allege a defendant participated or conspired…
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Submission of Privileged or Work Product Materials to Court for In Camera Review Does Not Waive Applicable Protection

From Cobell v. Norton, 213 F.R.D. 69, 75 (D.D.C. 2003): [T]he SEC maintains that the [defendant's] uninvited submission of the transcripts for the district court's in camera review was improper, and the resulting disclosure thus constituted waiver of the privilege. *** [W]e know of no case, and the SEC points to none, where the submiss ...
From Cobell v. Norton, 213 F.R.D. 69, 75 (D.D.C. 2003): [T]he SEC maintains that the [defendant’s] uninvited submission of the transcripts for the district court’s in camera review was improper, and the resulting disclosure thus constituted waiver of the privilege.…
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No Equitable Tolling of 30-Day or One-Year Limits on Removal — Circuit Split

From Staggs v. Union Pacific R.R., 2011 U.S. Dist. LEXIS 13022 (E.D. Ark. Jan. 28, 2011): Section 1446 of Title 28 establishes the procedure for removal from state court. Relevant to the instant case is § 1446(b), which provides: The notice of removal of a civil action or proceeding shall be filed within thirty ...
From Staggs v. Union Pacific R.R., 2011 U.S. Dist. LEXIS 13022 (E.D. Ark. Jan. 28, 2011): Section 1446 of Title 28 establishes the procedure for removal from state court. Relevant to the instant case is § 1446(b), which provides: The…
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Motion to Disqualify Judge Pursuant to 28 U.S.C. § 144 — Procedure — Alleged Bias Against Counsel Generally Insufficient to Warrant Recusal

From Sataki v. Broad. Bd. of Gov’rs, 733 F. Supp. 2d 54 (D.D.C. 2010): Currently pending before the Court is Plaintiff Elham Sataki's ... Motion to Disqualify this Court pursuant to 28 U.S.C. § 144. This is, in effect, Plaintiff's second attempt to disqualify the Court based on allegations that certain of the Court's rulings, combine ...
From Sataki v. Broad. Bd. of Gov’rs, 733 F. Supp. 2d 54 (D.D.C. 2010): Currently pending before the Court is Plaintiff Elham Sataki’s … Motion to Disqualify this Court pursuant to 28 U.S.C. § 144. This is, in effect, Plaintiff’s…
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Circumstantial Authentication of Email Evidence

From Commonwealth v. Amaral, 78 Mass. App. Ct. 671 (2011): The actions of the defendant himself served to authenticate the e-mails. One e-mail indicated that Jeremy would be at a certain place at a certain time and the defendant appeared at that place and time. In other e-mails, Jeremy provided his telephone number and photograph. ...
From Commonwealth v. Amaral, 78 Mass. App. Ct. 671 (2011): The actions of the defendant himself served to authenticate the e-mails. One e-mail indicated that Jeremy would be at a certain place at a certain time and the defendant appeared…
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Does Fraudulent Joinder Doctrine Apply to Plaintiffs as Well as Defendants? — Case Law Split

From Taco Bell Corp. v. Dairy Farmers of Am., 727 F. Supp. 2d 604 (W.D. Ky. 2010): The parties debate at great length whether the fraudulent joinder doctrine can ever apply to the joinder of plaintiffs. Certainly, the doctrine is generally applied to joinder of defendants. The Sixth Circuit has never affirmatively addressed thi ...
From Taco Bell Corp. v. Dairy Farmers of Am., 727 F. Supp. 2d 604 (W.D. Ky. 2010): The parties debate at great length whether the fraudulent joinder doctrine can ever apply to the joinder of plaintiffs. Certainly, the doctrine is…
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Rule 59(e) Motion to Amend Judgment — Standards

Two cases: From Duckett v. United States, (2011 U.S. Dist. LEXIS 3754 (W.D. Okla. Jan. 14, 2011): The grounds for granting relief from a judgment under Rule 59(e) " include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest i ...
Two cases: From Duckett v. United States, (2011 U.S. Dist. LEXIS 3754 (W.D. Okla. Jan. 14, 2011): The grounds for granting relief from a judgment under Rule 59(e) ” include (1) an intervening change in the controlling law, (2) new…
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Elements of Constitutional Standing

From Advanced Oral Techs. V. Nutres Research, Inc., 2011 U.S. Dist. LEXIS 5266 (D.N.J. Jan. 20, 2011): "Constitutional standing has three elements, all of which must be met: (1) the plaintiff must have suffered an injury in fact; (2) there must be a causal nexus between that injury and the conduct complained of; and (3) it must be l ...
From Advanced Oral Techs. V. Nutres Research, Inc., 2011 U.S. Dist. LEXIS 5266 (D.N.J. Jan. 20, 2011): “Constitutional standing has three elements, all of which must be met: (1) the plaintiff must have suffered an injury in fact; (2) there…
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FOIA — Metadata Is Part of a Public Record as Defined in FOIA

From Nat’l Day Laborer Organizing Network v. U.S. Immigration and Customs Enforcement Agency, 2011 U.S. Dist. LEXIS 11655 (S.D.N.Y. Feb. 7, 2011): No federal court has yet recognized that metadata is part of a public record as defined in FOIA. However, this precise issue has been addressed by several state courts, which have unifo ...
From Nat’l Day Laborer Organizing Network v. U.S. Immigration and Customs Enforcement Agency, 2011 U.S. Dist. LEXIS 11655 (S.D.N.Y. Feb. 7, 2011): No federal court has yet recognized that metadata is part of a public record as defined in FOIA.…
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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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