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

Removal — Fourth Circuit Declines to Adopt Last-Served Defendant Rule, Adheres to Intermediate Rule, Requiring the First-Served Defendant to Remove within 30 Days and Every Later-Served Defendant to Do So, Too

From Barbour v. Int’l Union, UAW, 2011 U.S. App. LEXIS 1695 (4th Cir. Jan. 27, 2011) (en banc) (Note: this decision reverses the panel decision summarized in our post of February 8, 2010): Section 1446 of Title 28 describes the appropriate removal procedure to invoke federal jurisdiction, and requires the defendant seeking remov ...
From Barbour v. Int’l Union, UAW, 2011 U.S. App. LEXIS 1695 (4th Cir. Jan. 27, 2011) (en banc) (Note: this decision reverses the panel decision summarized in our post of February 8, 2010): Section 1446 of Title 28 describes the…
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Removal — Ninth Circuit Adopts Later-Served Defendant Rule; While All Served Defendants Must Consent to Removal before Entry of Judgment, Unserved Defendants Need Not; Dismissal of FDIC as Defendant Is Not Jurisdiction-Stripping

From Destfino v. Reiswig, 2011 U.S. App. LEXIS 1375 (9th Cir. Jan. 21, 2011): [First- vs. Later-Served Defendant Rule.] Does the first-served defendant's thirty-day clock run for all subsequently served defendants (the first-served rule), or does each defendant get his own thirty days to remove after being served (the later-serve ...
From Destfino v. Reiswig, 2011 U.S. App. LEXIS 1375 (9th Cir. Jan. 21, 2011): [First- vs. Later-Served Defendant Rule.] Does the first-served defendant’s thirty-day clock run for all subsequently served defendants (the first-served rule), or does each defendant get his…
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Standard of Review of Magistrate Judge’s Discovery Decisions — Common Interest Doctrine Applies to Legal Advice Shared between Parent and Sub

From Weber v. Fujifilm Med. Sys. USA, Inc., 2011 U.S. Dist. LEXIS 6199 (D. Conn. Jan. 21, 2011): II. Standard of Review "Matters concerning discovery generally are considered 'nondispositive' of the litigation . . . [and] are committed to the discretion of the magistrate, reviewable by the district court under the 'clea ...
From Weber v. Fujifilm Med. Sys. USA, Inc., 2011 U.S. Dist. LEXIS 6199 (D. Conn. Jan. 21, 2011): II. Standard of Review “Matters concerning discovery generally are considered ‘nondispositive’ of the litigation . . . [and] are committed to the…
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New Delaware Chancery Court Guidelines for Preservation of Electronically Stored Information — Spoliation/Electronic Discovery

The Delaware Court of Chancery has adopted new Guidelines for the Preservation of Electronically-Stored Information effective January 18, 2011. They include the directive that: In most cases ... a party and its counsel (in-house and outside) s ...
The Delaware Court of Chancery has adopted new Guidelines for the Preservation of Electronically-Stored Information effective January 18, 2011. They include the directive that: In most cases … a party and its counsel (in-house and outside) should: • Take a…
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Procedural Untimeliness Forgivable on Grounds of “Excusable Neglect” under Rule 6(b)(1) — Factors — Delay Caused by Obtaining Needed Permission to File Affidavit

From Cedar Petrochemicals, Inc. v. Dongbu Hannong Chemical Co., 2011 U.S. Dist. LEXIS 4768 (S.D.N.Y. Jan. 14, 2011): ***Dongbu argues for the exclusion of the Declaration of Erik Gijbels because it was untimely under Local Civil Rule 6.1. *** Cedar concedes that the Gijbels Affidavit is untimely but argues that the untimeliness "did not ...
From Cedar Petrochemicals, Inc. v. Dongbu Hannong Chemical Co., 2011 U.S. Dist. LEXIS 4768 (S.D.N.Y. Jan. 14, 2011): ***Dongbu argues for the exclusion of the Declaration of Erik Gijbels because it was untimely under Local Civil Rule 6.1. *** Cedar…
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Factors in Deciding Whether to Exclude an Untimely Expert Report under Rule 37(c)(1)

From Cedar Petrochemicals, Inc. v. Dongbu Hannong Chemical Co., 2011 U.S. Dist. LEXIS 4768 (S.D.N.Y. Jan. 14, 2011): Under Rule 26 of the Federal Rules of Civil Procedure, expert witnesses must submit a written report that includes, among other things, "a complete statement of all opinions the witness will express and the basis and reas ...
From Cedar Petrochemicals, Inc. v. Dongbu Hannong Chemical Co., 2011 U.S. Dist. LEXIS 4768 (S.D.N.Y. Jan. 14, 2011): Under Rule 26 of the Federal Rules of Civil Procedure, expert witnesses must submit a written report that includes, among other things,…
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Jury Comprehension of Civil RICO — Good Quote

From Mayfield SWD, LLC. v. Hampton, 2011 U.S. Dist. LEXIS 5617 (W.D. Okla. Jan. 19, 2011): It is sometimes difficult to envision how, even after a detailed and thorough explanation of the fine points of RICO's "enterprises," "patterns," and the like, a properly instructed jury's reaction could be other than a blank stare. ...
From Mayfield SWD, LLC. v. Hampton, 2011 U.S. Dist. LEXIS 5617 (W.D. Okla. Jan. 19, 2011): It is sometimes difficult to envision how, even after a detailed and thorough explanation of the fine points of RICO’s “enterprises,” “patterns,” and the…
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Judicial Immunity Extends Even to Malicious or Ultra Vires Acts Taken in a Judicial Capacity — Extends to Court Clerks, Too

From Ceparano v. Southampton Justice Court, 2011 U.S. App. LEXIS 233 (2d Cir. Jan. 5, 2011): "A judge defending against a section 1983 suit is entitled to absolute immunity from damages for actions performed in his judicial capacity." Fields v. Soloff, 920 F.2d 1114, 1119 (2d Cir. 1990). Whether a judge acted in a "judicial ca ...
From Ceparano v. Southampton Justice Court, 2011 U.S. App. LEXIS 233 (2d Cir. Jan. 5, 2011): “A judge defending against a section 1983 suit is entitled to absolute immunity from damages for actions performed in his judicial capacity.” Fields v.…
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That Continued Prosecution of Claim Would Cause Counsel to Violate Rule 11 = Grounds for Withdrawal

From Acolatse v. Astrue, 2011 U.S. Dist. LEXIS 4835 (N.D. Cal. Jan. 12, 2011): Kalagian's claim that continuing to pursue this matter on behalf of Acolatse may subject him to sanctions under Rule 11 of the Federal Rules of Civil Procedure qualifies as a permissible reason for withdrawal. See e.g., Collins v. Astrue, No. 1:08-CV-00 ...
From Acolatse v. Astrue, 2011 U.S. Dist. LEXIS 4835 (N.D. Cal. Jan. 12, 2011): Kalagian’s claim that continuing to pursue this matter on behalf of Acolatse may subject him to sanctions under Rule 11 of the Federal Rules of Civil…
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RICO — Successor Entities Are Insufficiently Distinct to Comprise an Enterprise

From Leisher v. Wachovia Mortgage, Inc., 2011 U.S. Dist. LEXIS 3037 (S.D. Cal. Jan. 12, 2011): The moving Defendants contend that the RICO claim should be dismissed on the basis that it is inadequately pled. "To state a claim under RICO, 18 U.S.C. § 1962(c), a plaintiff must demonstrate: (1) the conduct; (2) of an enterprise; ...
From Leisher v. Wachovia Mortgage, Inc., 2011 U.S. Dist. LEXIS 3037 (S.D. Cal. Jan. 12, 2011): The moving Defendants contend that the RICO claim should be dismissed on the basis that it is inadequately pled. “To state a claim under…
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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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