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

Court-Appointed Receiver Entitled to Absolute Judicial Immunity — Duties “Functionally Comparable to Those of Judges”

From Ramirez v. Pasternak, 2011 U.S. App. LEXIS 443 (9th Cir. Jan. 7, 2011): *** Pasternak was entitled to absolute quasi-judicial immunity for actions undertaken in his capacity as receiver that were "functionally comparable to those of judges." Curry v. Castillo (In re Castillo), 297 F.3d 940, 947 (9th Cir. 2002); see als ...
From Ramirez v. Pasternak, 2011 U.S. App. LEXIS 443 (9th Cir. Jan. 7, 2011): *** Pasternak was entitled to absolute quasi-judicial immunity for actions undertaken in his capacity as receiver that were “functionally comparable to those of judges.” Curry v.…
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$3.4 Million Inherent Power Sanction Upheld by Eleventh Circuit — Covering Not only Attorneys’ Fees but also an Incidental Settlement and Costs in Defeating a Third Party’s Motion All Due to Bad Faith Conduct

From Wachovia Bank v. Tien, 2010 U.S. App. LEXIS 26089 (11th Cir. Dec. 22, 2010): Henry Tien appeals pro se from the partial final judgment in an interpleader action, 28 U.S.C. § 1335, which imposed on him approximately $3.4 million in sanctions. He claims that the district court abused its discretion in exercising its inherent power t ...
From Wachovia Bank v. Tien, 2010 U.S. App. LEXIS 26089 (11th Cir. Dec. 22, 2010): Henry Tien appeals pro se from the partial final judgment in an interpleader action, 28 U.S.C. § 1335, which imposed on him approximately $3.4 million…
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Authentication of Google Earth — MapQuest / Computer Satellite Imaging System / Computer-Generated Map

From Commonwealth v. Suarez-Irizzary, 2010 Pa. Dist. & Cnty. Dec. LEXIS 380 (Ct. Com. Pl. Aug. 6, 2010): As technology increases, the law must keep pace. When maps were first created, they represented a cartographer's "best estimate" of where things were located. Since then, measuring wheels, odometers, airplane photography and now global ...
From Commonwealth v. Suarez-Irizzary, 2010 Pa. Dist. & Cnty. Dec. LEXIS 380 (Ct. Com. Pl. Aug. 6, 2010): As technology increases, the law must keep pace. When maps were first created, they represented a cartographer’s “best estimate” of where things…
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Factors to Determine Whether an Economic Entity Is Entitled to Tribal Sovereign Immunity

From Breakthrough Management Group, Inc. v. Chukchansi Gold Casino And Resort, 2010 U.S. App. LEXIS 26210 (10th Cir. Dec. 27, 2010): At this time there is no need to define the precise boundaries of the appropriate test to determine if a tribe's economic entity qualifies as a subordinate economic entity entitled to share in a t ...
From Breakthrough Management Group, Inc. v. Chukchansi Gold Casino And Resort, 2010 U.S. App. LEXIS 26210 (10th Cir. Dec. 27, 2010): At this time there is no need to define the precise boundaries of the appropriate test to determine if…
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RICO — Investor’s Claim Arising out of Illegal Tax Shelter Not Barred by PSLRA, but Proximate Cause Lacking Because the Government was the Directly Injured Party and Did, in Fact, Sue

From Rezner v. Bayeriusche Hypo-Und Vereinsbank, AG, 2010 U.S. App. LEXIS 26272 (9th Cir. Dec. 28, 2010): It is undisputed that John Rezner participated in a financial transaction called Custom Adjustable Rate Debt Structure ("CARDS"), designed to avoid the payment of federal income taxes.*** CARDS loan transactions are designed to gene ...
From Rezner v. Bayeriusche Hypo-Und Vereinsbank, AG, 2010 U.S. App. LEXIS 26272 (9th Cir. Dec. 28, 2010): It is undisputed that John Rezner participated in a financial transaction called Custom Adjustable Rate Debt Structure (“CARDS”), designed to avoid the payment…
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Does Inherent Power Extend to Non-Parties Who Have Not Violated a Court Order? No Sanctions Imposed on Court-Appointed Monitor Who Engaged in Improper Communications with the Principal of a Party

From U.S. v. City of Detroit, 2010 U.S. Dist. LEXIS 134852 (E.D. Mich. Dec. 21, 2010): This civil rights action — now in its seventh year — involves an ongoing effort to enforce and implement two Consent Judgments that were agreed upon by the City of Detroit ("City") and the Department of Justice ("DOJ"). These Consent Judgments aros ...
From U.S. v. City of Detroit, 2010 U.S. Dist. LEXIS 134852 (E.D. Mich. Dec. 21, 2010): This civil rights action — now in its seventh year — involves an ongoing effort to enforce and implement two Consent Judgments that were…
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Spoliation Rule?

Today, I attended and moderated a panel at a meeting of the Standing Committee on Rules of Practice and Procedure of the United States Judicial Conference. The topic under discussion was a preservation (i.e., spoliation) rule for inclusion in the Federal Rules of Civil Procedure. Judge Mark Kravitz (D. Conn.), Chair of the Advisory Committee on the Federal Rules o ...
Today, I attended and moderated a panel at a meeting of the Standing Committee on Rules of Practice and Procedure of the United States Judicial Conference. The topic under discussion was a preservation (i.e., spoliation) rule for inclusion in the…
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Court’s Simple Observation that Counsel Has Engaged in Conduct Violative of Rule 11, without More, Does Not Constitute a Sanction and Does Not Require Prior Notice

From M.B. v. Eastern Regional High School Dist., 386 Fed. Appx. 186 (3d Cir. 2010): M.G. claims the District Court erred by sanctioning Epstein without first providing him with notice and a reasonable opportunity to respond. See Fed. R. Civ. P. 11(c)(1). But the District Court did not impose Rule 11 sanctions on Epstein. Rather, the Cou ...
From M.B. v. Eastern Regional High School Dist., 386 Fed. Appx. 186 (3d Cir. 2010): M.G. claims the District Court erred by sanctioning Epstein without first providing him with notice and a reasonable opportunity to respond. See Fed. R. Civ.…
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Defendant Cannot Moot Class Action by Making a Rule 68 Offer of Judgment to the Named Plaintiff before Class Certification Motion Is Filed — Case Law Split

From Hrivnak v. NCO Portfolio Mgmt., Inc., 723 F. Supp. 2d 1020 (N.D. Ohio 2010): The question posed by Javitch's Motion for Reconsideration is whether a defendant in a putative class-action may moot that action by presenting an offer of judgment under Rule 68 two days after the suit is removed to federal court. *** At issue is "[t]he i ...
From Hrivnak v. NCO Portfolio Mgmt., Inc., 723 F. Supp. 2d 1020 (N.D. Ohio 2010): The question posed by Javitch’s Motion for Reconsideration is whether a defendant in a putative class-action may moot that action by presenting an offer of…
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§ 1927 Sanctions Imposed on Counsel for 868-Entry Deposition Errata Sheet — Case Law Split on Propriety of Substantive Deposition Errata — § 1927 Award May Include Costs Incurred on Sanctions Motion (Circuit Split) — Good Quotes

From Norelus v. Denny’s, Inc., 2010 U.S. App. LEXIS 26286 (11th Cir. Dec. 28, 2010) (Note: This is a 2-1 decision with the 1 being a concurrence in part and Judge Tflojat dissenting): No one's memory is perfect. People forget things or get confused, and anyone can make an innocent misstatement or two. Or maybe even three ...
From Norelus v. Denny’s, Inc., 2010 U.S. App. LEXIS 26286 (11th Cir. Dec. 28, 2010) (Note: This is a 2-1 decision with the 1 being a concurrence in part and Judge Tflojat dissenting): No one’s memory is perfect. People forget…
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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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