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

Reconsideration Motions — Second Circuit Standards

From Bank of New York v. Bell, 2011 U.S. Dist. LEXIS 3850 (D. Conn. Jan. 14, 2011): The standard for granting motions for reconsideration is strict; motions for reconsideration "will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked — matters, in other words, that might ...
From Bank of New York v. Bell, 2011 U.S. Dist. LEXIS 3850 (D. Conn. Jan. 14, 2011): The standard for granting motions for reconsideration is strict; motions for reconsideration “will generally be denied unless the moving party can point to…
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Existence of Contract Compelling Arbitration Is for Court to Decide — Party Consistently Opposing Arbitration Does Not Waive Right to Judicial Determination by Seeking Arbitral Resolution of Same Question, Too

From Dedon GmbH and Dedon Inc. v. Janus et Cie, 2011 U.S. App. LEXIS 262 (2d Cir. Jan. 6, 2011): A. Dispute Involving the Existence of the Contract *** The Supreme Court recently reiterated that "[a]rbitration is strictly a matter of consent and thus 'is a way to resolve those disputes--but only those disputes--that the ...
From Dedon GmbH and Dedon Inc. v. Janus et Cie, 2011 U.S. App. LEXIS 262 (2d Cir. Jan. 6, 2011): A. Dispute Involving the Existence of the Contract *** The Supreme Court recently reiterated that “[a]rbitration is strictly a matter…
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Experts — A Different Standard May Be Applied to Guns for Hire

From Edmons v. Home Depot, USA, Inc., 2011 U.S. Dist. LEXIS 3811 (D. Or. Jan. 14, 2011): [T]here is a presumption that where an expert's report is prepared for litigation, "the party proffering it must come forward with other objective, verifiable evidence that the testimony is based on 'scientifically valid principles.'" [Daubert v. ...
From Edmons v. Home Depot, USA, Inc., 2011 U.S. Dist. LEXIS 3811 (D. Or. Jan. 14, 2011): [T]here is a presumption that where an expert’s report is prepared for litigation, “the party proffering it must come forward with other objective,…
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Admissibility of Emails Retrieved without Permission from Another’s Computer Is Governed by Federal Stored Communications Act, Not Wiretap Act — Exclusion Not Mandated by SCA

From State v. Poling, 160 Ohio Misc. 2d 84, 2010 Ohio 542,; 2010 Ohio Misc. LEXIS 408 (Municipal Cort, Hocking County 2010): The defendant is charged with a count of violating a *** civil protection order that was obtained in the Common Pleas Court of Hocking County by Jana Kaiser. The order prohibited the defendant from having contact wi ...
From State v. Poling, 160 Ohio Misc. 2d 84, 2010 Ohio 542,; 2010 Ohio Misc. LEXIS 408 (Municipal Cort, Hocking County 2010): The defendant is charged with a count of violating a *** civil protection order that was obtained in…
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Expert Testimony Need Not be “Complicated,” Just Helpful — “Basic Math” Damages Testimony Admissible under 702 — Alternatively, under 1006 as Summary

From WWP, Inc. v. Wounded Warriors Family Support, Inc., 2011 U.S. App. LEXIS 579 (8th Cir. Jan. 12, 2011): In a motion in limine, WWFS asked the district court to bar Kirchner from testifying at trial. WWFS argued Kirchner's testimony did "not meet the helpful requirement of Fed. R. Evid. 702 and Daubert [v. Merrell Dow Pharms ...
From WWP, Inc. v. Wounded Warriors Family Support, Inc., 2011 U.S. App. LEXIS 579 (8th Cir. Jan. 12, 2011): In a motion in limine, WWFS asked the district court to bar Kirchner from testifying at trial. WWFS argued Kirchner’s testimony…
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Spoliation — Adverse-Inference Standards — Sixth Circuit

From Alexander v. Del Monte Corp., 2010 U.S. Dist. LEXIS 139465 (E.D. Mich. Jan. 11, 2011): An adverse inference instruction is appropriate where a party knew that the evidence was relevant to some issue at trial and his culpable conduct resulted in its destruction. Beaven v. U.S. Dep't of Justice, 622 F.3d 540, 553 (6th Cir. 201 ...
From Alexander v. Del Monte Corp., 2010 U.S. Dist. LEXIS 139465 (E.D. Mich. Jan. 11, 2011): An adverse inference instruction is appropriate where a party knew that the evidence was relevant to some issue at trial and his culpable conduct…
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Two-Step Approach to Ascertain Compliance with Rule 11: First, Assess Plausibility; If Plausibility Is Wanting, Second, Gauge the Reasonableness of Pre-Assertion Inquiry

From Owensby v. Estate of Phillips, 2010 N.C. App. LEXIS 2302 (N.C. App. Dec. 7, 2010) (decided under the North Carolina equivalent of Fed.R.Civ.P. 11): The Supreme Court has adopted a "two-part analysis" for use in determining the legal sufficiency of a complaint, under which the trial court "looks first to the facial plausibility of th ...
From Owensby v. Estate of Phillips, 2010 N.C. App. LEXIS 2302 (N.C. App. Dec. 7, 2010) (decided under the North Carolina equivalent of Fed.R.Civ.P. 11): The Supreme Court has adopted a “two-part analysis” for use in determining the legal sufficiency…
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Derivative Action Predicated on Failure to Prevent Corporate Liability under False Claims Act Is Removable under Grable Even If False Claims Act Liability Is Separately Being Adjudicated in another Federal Action

From Prince v. Berg, 2011 U.S. Dist. LEXIS 1071 (N.D. Cal. Jan. 3, 2011): This shareholders derivative action was filed in San Mateo Superior Court and was removed here by defendants, based on their contention that the claims arise under federal law. The complaint alleges that nominal defendant Oracle Corporation engaged in a scheme ove ...
From Prince v. Berg, 2011 U.S. Dist. LEXIS 1071 (N.D. Cal. Jan. 3, 2011): This shareholders derivative action was filed in San Mateo Superior Court and was removed here by defendants, based on their contention that the claims arise under…
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In Adjudicating a Mixed Goods and Services Contract, or a Contract that Involves the Sale of Goods as Well as Real Estate, Court Applies the Predominant Purpose Test to Determine whether Contract Is Subject to UCC

From Cranpark, Inc., v. Rogers Group, Inc., 721 F. Supp. 2d 613 (N.D. Ohio 2010): The case at bar appears to offer an issue of first impression: when a contract involves the sale of goods, as well as a real estate term, and the goods have no prior relationship to the real estate (e.g., as a fixture, as a mineral, or as a crop) d ...
From Cranpark, Inc., v. Rogers Group, Inc., 721 F. Supp. 2d 613 (N.D. Ohio 2010): The case at bar appears to offer an issue of first impression: when a contract involves the sale of goods, as well as a real…
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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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