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

FTC Suit for Unfair or Deceptive Acts under 15 U.S.C. § 45(a)(1) Is Subject to Rule 9(b) — Case Law Split

From Federal Trade Commission v. Lights of Am., Inc., 2010 U.S. Dist. LEXIS 137088 (C.D. Cal. Dec. 17, 2010): The FTC Act prohibits "unfair or deceptive acts or practices in or affecting commerce." 15 U.S.C. § 45(a)(1). In resolving the FTC's motion to dismiss, the central issue is whether the FTC's claim that the Vakils engaged in "unfa ...
From Federal Trade Commission v. Lights of Am., Inc., 2010 U.S. Dist. LEXIS 137088 (C.D. Cal. Dec. 17, 2010): The FTC Act prohibits “unfair or deceptive acts or practices in or affecting commerce.” 15 U.S.C. § 45(a)(1). In resolving the…
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The 10 Most Important Developments in Civil Practice: 2000-2010

1. Federal Rule of Evidence 502 (9/19/2008) 2. Twiqbal (2007 / 2009) 3. Expert Discovery Rules Amendments (12/1/2010) 4. The Rise of Spoliation 5. Amendments to Evidence Rules 701-703 (12/1/2000) 6. FRAP. 32.1 (12/1/2006) 7. 2000 ...
1. Federal Rule of Evidence 502 (9/19/2008) 2. Twiqbal (2007 / 2009) 3. Expert Discovery Rules Amendments (12/1/2010) 4. The Rise of Spoliation 5. Amendments to Evidence Rules 701-703 (12/1/2000) 6. FRAP. 32.1 (12/1/2006) 7. 2000 Disclosure and Discovery-Limits Amendments…
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Arbitration — Presumption that Duty to Arbitrate Survives Contract — Ambiguity Resolved in Favor of Arbitrating

From West Liberty Foods, LLC v. Moroni Feed Co., 2010 U.S. Dist. LEXIS 125137 (S.D. Iowa Oct. 20, 2010): The issue in this case is not whether the parties agreed to arbitrate in the first place; rather, the issue is whether the parties agreed that the obligation to arbitrate would end upon termination of the marketing agreement. "Even i ...
From West Liberty Foods, LLC v. Moroni Feed Co., 2010 U.S. Dist. LEXIS 125137 (S.D. Iowa Oct. 20, 2010): The issue in this case is not whether the parties agreed to arbitrate in the first place; rather, the issue is…
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PSLRA Sanctions — Statute of Limitations Dismissal Is a “Final Adjudication” Triggering Rule 11 Inquiry (Standing Dismissal, Maybe Not) — Declining Jurisdiction over State Law Claims Irrelevant to “Final Adjudication” Trigger

From Libaire v. Kaplan, 2010 U.S. App. LEXIS 20594 (2d Cir. Oct. 6, 2010): The PSLRA [Private Securities Litigation Reform Act] states that "[i]n any private action arising under this chapter, upon final adjudication of the action, the court shall include in the record specific findings regarding compliance by each party and each attorney ...
From Libaire v. Kaplan, 2010 U.S. App. LEXIS 20594 (2d Cir. Oct. 6, 2010): The PSLRA [Private Securities Litigation Reform Act] states that “[i]n any private action arising under this chapter, upon final adjudication of the action, the court shall…
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The One-Year Limit on Removal in 28 U.S.C. § 1446(b) Is Not Subject to an Equitable Exception — Case Law Split

From Cole v. Amerigon Inc., 2010 U.S. Dist. LEXIS 134745 (E.D. Mo. Dec. 21, 2010): If a case is not removable as initially pled, "a notice of removal may be filed within thirty days after the receipt...of a copy of an amended pleading, motion, order or other paper" that alerts the defendant that the action is removable. [28 U.S.C. § 144 ...
From Cole v. Amerigon Inc., 2010 U.S. Dist. LEXIS 134745 (E.D. Mo. Dec. 21, 2010): If a case is not removable as initially pled, “a notice of removal may be filed within thirty days after the receipt…of a copy of…
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Defendants Who Were Aware of Allegedly Dangerous Condition But Had No Control over It Cannot be Subject to Adverse Inference for Failing to Document or Preserve Scene

From Willis v. Indian Harbor SS Co., 790 N.W.2d 177 (Minn. App. 2010): On August 27, 2004, while working as a crewman of the vessel Joseph L. Block, Willis was injured on a dock in the Duluth harbor owned by respondent Duluth, Missabe & Iron Range Railway Company (DM&IR). Willis was handling one of the Block's mooring lines used to secu ...
From Willis v. Indian Harbor SS Co., 790 N.W.2d 177 (Minn. App. 2010): On August 27, 2004, while working as a crewman of the vessel Joseph L. Block, Willis was injured on a dock in the Duluth harbor owned by…
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Dismissal Standards in New York State Court — CPLR 3211(a)(7) (Failure to State a Claim) and 3211(a)(1) (Documentary Evidence) — Affidavits May Cure Pleading Deficiencies — What Constitutes “Documentary Evidence”

From MBIA Ins. Corp. v Royal Bank of Canada, 28 Misc. 3d 1225A, 2010 N.Y. Misc. LEXIS 3958, 2010 NY Slip Op 51490U (Sup. Ct. Westchester County Aug. 19, 2010): The legal standards to be applied in evaluating a motion to dismiss pursuant to CPLR 3211(a)(7) are well-settled. In determining whether a complaint is sufficient to withsta ...
From MBIA Ins. Corp. v Royal Bank of Canada, 28 Misc. 3d 1225A, 2010 N.Y. Misc. LEXIS 3958, 2010 NY Slip Op 51490U (Sup. Ct. Westchester County Aug. 19, 2010): The legal standards to be applied in evaluating a motion…
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Refusal to Grant Attorneys’ Fees as Inherent Power Sanction Upheld Even Though Intentional Spoliation May Have Been Found by Jury

From Union Pump Co. v. Centrifugal Tech. Inc., 2010 U.S. App. LEXIS 25761 (5th Cir. Dec. 16, 2010): Plaintiff, Union Pump Company, sued three of its former employees after the former employees formed a competing business. Union Pump alleged that the defendants misappropriated its trade secrets and engaged in unfair competition because t ...
From Union Pump Co. v. Centrifugal Tech. Inc., 2010 U.S. App. LEXIS 25761 (5th Cir. Dec. 16, 2010): Plaintiff, Union Pump Company, sued three of its former employees after the former employees formed a competing business. Union Pump alleged that…
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Testimony from Recipient of Email Suffices to Authenticate It, As Does Affidavit

From Read v. Teton Springs Golf & Casting Club, LLC, 2010 U.S. Dist. LEXIS 134621 (D. Idaho Dec. 14, 2010): Exhibit 10 "is a true and correct copy of an email from Aaron Wernli dated March 21, 2006. See McLean Aff., ¶ 13 (Docket No. 448, Att. 1). Plaintiffs argue that Exhibit 10 was (1) sent to, among others, Plaintiff Chris Frye who au ...
From Read v. Teton Springs Golf & Casting Club, LLC, 2010 U.S. Dist. LEXIS 134621 (D. Idaho Dec. 14, 2010): Exhibit 10 “is a true and correct copy of an email from Aaron Wernli dated March 21, 2006. See McLean…
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Duplicative Federal Action May be Dismissed Sua Sponte Pursuant to Rule 41(b)

From Latham Orthopedics Med. Group v. U.S.A. Corp., 2010 U.S. Dist. LEXIS 122370 (C.D. Cal. Nov. 2, 2010): In an earlier-filed case -- Case No. EDCV 10-950-DSF (MAN) (the "950 Action") -- plaintiffs filed a complaint that is essentially identical to the instant Complaint. The 950 Action named the same two plaintiffs (Mueller and Latham) ...
From Latham Orthopedics Med. Group v. U.S.A. Corp., 2010 U.S. Dist. LEXIS 122370 (C.D. Cal. Nov. 2, 2010): In an earlier-filed case — Case No. EDCV 10-950-DSF (MAN) (the “950 Action”) — plaintiffs filed a complaint that is essentially identical…
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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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