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

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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Organization May Not Call Its Own 30(b)(6) Witness to Testify at Trial to Matters Outside His/Her Personal Knowledge

From Union Pump Co. v. Centrifugal Tech. Inc., 2010 U.S. App. LEXIS 25761 (5th Cir. Dec. 16, 2010): Federal Rule of Evidence 602 limits the scope of a witness's testimony to matters that are within his or her personal knowledge. Union Pump argues that Bixler [Union Pump’s 30(b)(6) deponent] was permitted to testify to matters that, alt ...
From Union Pump Co. v. Centrifugal Tech. Inc., 2010 U.S. App. LEXIS 25761 (5th Cir. Dec. 16, 2010): Federal Rule of Evidence 602 limits the scope of a witness’s testimony to matters that are within his or her personal knowledge.…
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RICO — If Plaintiff Does Not Rely on Mail Fraud Predicate, Third Party Reliance May Be Essential to Prove Causation

From UFCW Local 1776 v. Eli Lilly & Co., 620 F.3d 121 (2d Cir. 2010) (class certification decision): The putative class of TPPs [third-party payors] alleges that in the course of promoting off-label prescriptions of Zyprexa, Lilly engaged in mail and wire fraud by deliberately misrepresenting the drug's safety and efficacy. Plaintiffs c ...
From UFCW Local 1776 v. Eli Lilly & Co., 620 F.3d 121 (2d Cir. 2010) (class certification decision): The putative class of TPPs [third-party payors] alleges that in the course of promoting off-label prescriptions of Zyprexa, Lilly engaged in mail…
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Attorneys’ Fees under the Federal Arbitration Act for Prevailing over Unsuccessful Attack on Arbitration Award

From Western Tech. Servs. Int’l v. Cauchous Indus., S.A., 2010 U.S. Dist. LEXIS 121269 (N.D. Tex. Nov. 16, 2010): Petitioner Western Technology Services International, Inc. ("Petitioner" or "Westech") filed its Notice of Application and Application to Confirm Arbitration Award on June 4, 2009. Westech and Respondent Cauchos Industriales ...
From Western Tech. Servs. Int’l v. Cauchous Indus., S.A., 2010 U.S. Dist. LEXIS 121269 (N.D. Tex. Nov. 16, 2010): Petitioner Western Technology Services International, Inc. (“Petitioner” or “Westech”) filed its Notice of Application and Application to Confirm Arbitration Award on…
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Weak Position Not Frivolous Where Magistrate Judge Ordered Discovery on It and Appellate Judge Voted for Oral Argument — Forum Non Conveniens in Maritime Cases

From Vesuna v. CSCS Int’l N.V., 2010 U.S. App. LEXIS 25531 (11th Cir. Dec. 13, 2010): Vesuna, a resident of India, sustained a serious back injury while working for Cruise Ship Catering Services ("CSCS") aboard a cruise ship owned by Costa Crociere ("Costa"). Vesuna's employment contract contained the following choice of law provision: ...
From Vesuna v. CSCS Int’l N.V., 2010 U.S. App. LEXIS 25531 (11th Cir. Dec. 13, 2010): Vesuna, a resident of India, sustained a serious back injury while working for Cruise Ship Catering Services (“CSCS”) aboard a cruise ship owned by…
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Statutory Interpretation on Issues of First Impression — Three-Part Test

From Hamdi v. Napolitano, 620 F.3d 615 (6th Cir. 2010): The proper interpretation of the "on behalf of" language in § 1252(g) is a matter of first impression in this circuit (and apparently in all circuits). We review de novo such questions of statutory interpretation, United States v. Parrett, 530 F.3d 422, 429 (6th Cir. 2008 ...
From Hamdi v. Napolitano, 620 F.3d 615 (6th Cir. 2010): The proper interpretation of the “on behalf of” language in § 1252(g) is a matter of first impression in this circuit (and apparently in all circuits). We review de novo…
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Does Postjudgment Interest on an Attorneys’ Fee Award Run from the Date of the Merits Judgment or the Date of the Quantum Judgment? Circuit Split

From Fryer v. ASAP Fire & Safety Corp., 2010 U.S. Dist. LEXIS 132613 (D. Mass. Dec. 15, 2010): In pertinent part, section 1961 reads: Interest shall be allowed on any money judgment in a civil case recovered in a district court . . . Such interest shall be calculated from the date of the entry of the judgment, at ...
From Fryer v. ASAP Fire & Safety Corp., 2010 U.S. Dist. LEXIS 132613 (D. Mass. Dec. 15, 2010): In pertinent part, section 1961 reads: Interest shall be allowed on any money judgment in a civil case recovered in a district…
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“Arbitrability” vs. Scope of Arbitrators’ Authority — A Word in Use for 500 Years that Appears in Almost No Dictionaries

From Burlington Northern & Santa Fe Railway Co. v. Public Serv. Co. of Okla., 2010 U.S. App. LEXIS 25252 (10th Cir. Dec. 10, 2010): As an initial matter, we must clarify the distinction between arbitrability and the scope of an arbitrator's authority, because different standards of review apply to each. An issue is arbitrable if it ...
From Burlington Northern & Santa Fe Railway Co. v. Public Serv. Co. of Okla., 2010 U.S. App. LEXIS 25252 (10th Cir. Dec. 10, 2010): As an initial matter, we must clarify the distinction between arbitrability and the scope of an…
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Omitting/Misnaming Appellants Not Fatal to Appellate Jurisdiction, Notwithstanding Fed.R.App.P. 3(c), If Real-Parties-in-Interest Are Obvious and Involved

From SEC v. Wealth Mgmt. LLC, 2010 U.S. App. LEXIS 24537 (7th Cir. Dec. 1, 2010): Federal Rule of Appellate Procedure 3 requires a notice of appeal to "specify the party or parties taking the appeal by naming each one in the caption or body of the notice." Fed. R. App. P. 3(c)(1)(A). Rule 3(c)'s specificity requirement exists to give "f ...
From SEC v. Wealth Mgmt. LLC, 2010 U.S. App. LEXIS 24537 (7th Cir. Dec. 1, 2010): Federal Rule of Appellate Procedure 3 requires a notice of appeal to “specify the party or parties taking the appeal by naming each one…
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Recent Posts

RICO: Release Executed After Alleged RICO Violations Extinguishes RICO Claim — Eighth Circuit Declines to Address Enforceability of A Release “That Is An Integral Part of An Alleged RICO Scheme Or That Immunizes Future RICO Conduct

Pleading — “Civil pleadings are supposed to mark the boundaries for discovery; discovery is not supposed to substitute for definite pleading” (Good Quote) — Shotgun Pleadings (11th Circuit):  Four Categories/Types

Rule 37(c)(1) Exclusion of Untimely Expert Report: Failure to Argue Harmlessness Essentially Waives Issue

Rule 37(b) Sanctions — Exclusion of Supplemental Expert Report for Advancing New Opinions — Third Circuit Exclusion Factors — “Importance of Excluded Evidence:” If, As Proponent Argues, There Is Nothing New, Then Exclusion Doesn’t Harm Proponent; If There Is, It Harms Opponent

RICO Pleading: Generic Allegations of Fraud (Failing Even to Set Forth Any False Representation) And Extortion (Failing to Describe Actual Threats) Too Conclusory to State a Claim

RICO Standing: Antitrust’s Indirect Purchaser Rule Applies in RICO Cases, Barring Claims by Indirect Purchasers Two Or More Steps Removed From The Violator In A Distribution Chain (Here, Truck Purchasers/Lessees Suing Manufacturer), Though Court Considers Bar “Unsupported by Sensible Principles”

RICO Pleading: Statutory Directive That RICO Be Liberally Construed Does Not Extend to More Liberal Pleading Requirements

Inherent Power and FRAP 38 Sanctions — Inherent Power Sanctions (Here, A Deterrence Payment of $25,000 to the Court — Goodyear Issue Not Addressed) May Be Imposed in Addition to Statutory Attorney’s Fees under 35 U.S.C. § 285 (Exceptional Patent Case) — § 285 Does Not Preclude A Separate Award of Sanctions Or Fees under Another Authority — Recidivism (25 Prior Lawsuits with Same Perceived Venue Deficiency) A Factor — Fact That Rule 11 Sanctions Were Unavailable Due to Dismissal of Lawsuit Opened the Door to Inherent Power Sanctions Under Chambers — FRAP 38 Sanctions Denied Because Issue Previously Unaddressed in Circuit — A Meritless Appeal Is By No Means Necessarily A Frivolous One (Good Quote)

FRAP 38 Sanctions Imposed Due to the “Striking Legal Emptiness” of Brief/Appeal, “A Legal Nothingburger” — Bad Faith Not Required: An Appeal “May Also Be Frivolous If It Is Filed Out Of Sheer Obstinacy” (Good Quotes)

RICO: Hobbs Act does not apply when the alleged extortion is meant to benefit the state

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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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