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

Daubert — Liberal Interpretation — Good Quotes

From McClellan v. I-Flow Corp., 710 F. Supp. 2d 1092 (D. Or. 2010): Rule 702 permits expert testimony that is helpful to the trier of fact, reliable, and relevant. To that end, Daubert was intended to exclude "junk science" — unsupported testimony or evidence cloaked in the credentials of a testifying expert — that would confu ...
From McClellan v. I-Flow Corp., 710 F. Supp. 2d 1092 (D. Or. 2010): Rule 702 permits expert testimony that is helpful to the trier of fact, reliable, and relevant. To that end, Daubert was intended to exclude “junk science” —…
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Issuer Is Customer of Underwriter for Purposes of Compelling FINRA Arbitration — Under FAA, Court Refusing to Enjoin Arbitration May Not Compel It in Another District

From JPMorgan Secs. Inc. v. La. Citizens Prop. Ins. Corp., 712 F. Supp. 2d 70 (S.D.N.Y. 2010): JP Morgan and Bear Stearns ask this Court to grant a preliminary injunction enjoining its pending FINRA arbitration with Citizens. This Court's power to enjoin that arbitration derives from the Federal Arbitration Act ("FAA"). Section 2 of th ...
From JPMorgan Secs. Inc. v. La. Citizens Prop. Ins. Corp., 712 F. Supp. 2d 70 (S.D.N.Y. 2010): JP Morgan and Bear Stearns ask this Court to grant a preliminary injunction enjoining its pending FINRA arbitration with Citizens. This Court’s power…
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Federal Officer Removal — Requirements — Private Entity Whose Employees Are “Federal Officers” for Purposes of Removal May Not Itself Remove under §1442

From West v. A&S Helicopters, 2010 U.S. Dist. LEXIS 120948 (W.D. Mo. Nov. 15, 2010): B. Federal Officer Removal Under 28 U.S.C. § 1442 The Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1), allows removal to a federal forum of any civil or criminal action against "[t]he United States or any agency thereof or any officer ...
From West v. A&S Helicopters, 2010 U.S. Dist. LEXIS 120948 (W.D. Mo. Nov. 15, 2010): B. Federal Officer Removal Under 28 U.S.C. § 1442 The Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1), allows removal to a federal forum of…
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Shifting Burdens on Summary Judgment

From In re Oracle Corp. Secs. Litig., 2010 U.S. App. LEXIS 23531 (9th Cir. Nov. 16, 2010): We are mindful of the shifting burden of proof governing motions for summary judgment under Federal Rule of Civil Procedure 56. The moving party initially bears the burden of proving the absence of a genuine issue of material fact. Celotex Corp ...
From In re Oracle Corp. Secs. Litig., 2010 U.S. App. LEXIS 23531 (9th Cir. Nov. 16, 2010): We are mindful of the shifting burden of proof governing motions for summary judgment under Federal Rule of Civil Procedure 56. The moving…
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Because a State Is Not a Citizen for Diversity Purposes, Its Presence as a Party Destroys Complete Diversity — Caselaw Split

From Hood v. AstraZeneca Pharm., LP, 2010 U.S. Dist. LEXIS 107411 (N.D. Miss. Oct. 7, 2010): ***Congress has not empowered the federal courts to exercise diversity jurisdiction over the states. That is, it is beyond peradventure that "a State is not a 'citizen' for purposes of the diversity jurisdiction." Moor v. Alameda Cnty., ...
From Hood v. AstraZeneca Pharm., LP, 2010 U.S. Dist. LEXIS 107411 (N.D. Miss. Oct. 7, 2010): ***Congress has not empowered the federal courts to exercise diversity jurisdiction over the states. That is, it is beyond peradventure that “a State is…
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Derivative Standing Requirements under RICO

From Morrell v. Alfortish, 2010 U.S. Dist. LEXIS 119331 (E.D. La. Nov. 8, 2010): This case arises out of an alleged RICO enterprise operated by executives and board members of the Louisiana Horsemen's Benevolent & Protective Association 1993, Inc. ("LHBPA"). The LHBPA is a non-profit corporation empowered to represent the interests of rac ...
From Morrell v. Alfortish, 2010 U.S. Dist. LEXIS 119331 (E.D. La. Nov. 8, 2010): This case arises out of an alleged RICO enterprise operated by executives and board members of the Louisiana Horsemen’s Benevolent & Protective Association 1993, Inc. (“LHBPA”).…
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Non-Lawyer Parent May Not Proceed Pro Se for Child, but Sole Beneficiary May Proceed Pro Se for Estate that Has No Creditors

From McCurdy v. Cambridge School Dist. No. 432, 2010 U.S. Dist. LEXIS 119464 (D. Idaho Nov. 8, 2010): 2. Motion to Dismiss for Unauthorized Practice of Law Defendant argues that Mr. McCurdy is engaged in the unauthorized practice of law by bringing claims on behalf of Mrs. McCurdy's Estate in a pro se capacity. This is a ...
From McCurdy v. Cambridge School Dist. No. 432, 2010 U.S. Dist. LEXIS 119464 (D. Idaho Nov. 8, 2010): 2. Motion to Dismiss for Unauthorized Practice of Law Defendant argues that Mr. McCurdy is engaged in the unauthorized practice of law…
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Sanctions — Erroneous Position on Issue of First Impression, without More, Is Not Frivolous — Good Quote

From Komperda v. Hilton Hawaiian Village, LLC, 2010 U.S. Dist. LEXIS 114079 (D. Hawaii Oct. 25, 2010) (state sanctions provision) : A litigant's "erroneous interpretation in a case of first impression should not, without more, lead the court to conclude that the plaintiff's claims are frivolous, unreasonable, or without foundation." ...
From Komperda v. Hilton Hawaiian Village, LLC, 2010 U.S. Dist. LEXIS 114079 (D. Hawaii Oct. 25, 2010) (state sanctions provision) : A litigant’s “erroneous interpretation in a case of first impression should not, without more, lead the court to conclude…
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§ 1404(a) Standards — Second Circuit

From Whitney Lane Holdings, LLC v. Sgambettera & Assocs., PC, 2010 U.S. Dist. LEXIS 114467 (E.D.N.Y. Sept. 8, 2010): To transfer venue under 28 U.S.C. § 1404(a), the Court engages in a two-pronged inquiry. *** First, the court asks whether the action sought to be transferred is one that "might have been brought" in the requested transf ...
From Whitney Lane Holdings, LLC v. Sgambettera & Assocs., PC, 2010 U.S. Dist. LEXIS 114467 (E.D.N.Y. Sept. 8, 2010): To transfer venue under 28 U.S.C. § 1404(a), the Court engages in a two-pronged inquiry. *** First, the court asks whether…
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No Adverse Inference from Assertion of Attorney-Client Privilege

From United States v. St. John, 267 F. App’x 17, 22 (2d Cir. 2008): We also reject defendants' argument that it was improper for Cherry and Raymond to assert the attorney-client privilege outside the presence of the jury on the basis that they were entitled to an adverse inference because of the witnesses' invocation of the privilege. ...
From United States v. St. John, 267 F. App’x 17, 22 (2d Cir. 2008): We also reject defendants’ argument that it was improper for Cherry and Raymond to assert the attorney-client privilege outside the presence of the jury on the…
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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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