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

Evidentiary Foundation for Introducing English Interpretation of Foreign Language Testimony

From Sunrider Corp. v. Bountiful Biotech Corp., 2010 U.S. Dist. LEXIS 117347 (C.D. Cal. Oct. 8, 2010): "Witness testimony translated from a foreign language must be properly authenticated and any interpretation must be shown to be an accurate translation done by a competent translator." Jack v. Trans World Airlines, Inc., 854 F. ...
From Sunrider Corp. v. Bountiful Biotech Corp., 2010 U.S. Dist. LEXIS 117347 (C.D. Cal. Oct. 8, 2010): “Witness testimony translated from a foreign language must be properly authenticated and any interpretation must be shown to be an accurate translation done…
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Spoliation: Destroying Party Bears Burden of Proving Irrelevance of Documents Destroyed During Discovery — 9th Circuit Standards for Default or Dismissal Sanctions

From Sunrider Corp. v. Bountiful Biotech Corp., 2010 U.S. Dist. LEXIS 117346 (C.D. Cal. Nov. 3, 2010): Perhaps most significantly, Annie Wu's supplementary declaration admitted that as discovery was pending in September 2009, BHTC destroyed documents. *** Annie Wu testified that "non-essential documents were discarded if they were deemed ...
From Sunrider Corp. v. Bountiful Biotech Corp., 2010 U.S. Dist. LEXIS 117346 (C.D. Cal. Nov. 3, 2010): Perhaps most significantly, Annie Wu’s supplementary declaration admitted that as discovery was pending in September 2009, BHTC destroyed documents. *** Annie Wu testified…
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Stay Pending Appeal of Non-Money Judgment: Factors — Novelty of Issue vs. Likelihood of Reversal (Good Quote)

From Adams Offshore, Ltd. v. Con-Dive, LLC, 2010 U.S. Dist. LEXIS 117337 (S.D.Ala. Nov. 3, 2010): I. Stay Pending Appeal. [Intervening Plaintiff] Blake first moves for a stay pending appeal. *** Such stays are governed by Rule 62. "In the case of a non-money judgment, whether a stay is warranted under Rule 62(d) depends upon: ...
From Adams Offshore, Ltd. v. Con-Dive, LLC, 2010 U.S. Dist. LEXIS 117337 (S.D.Ala. Nov. 3, 2010): I. Stay Pending Appeal. [Intervening Plaintiff] Blake first moves for a stay pending appeal. *** Such stays are governed by Rule 62. “In the…
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Fed.R.App.P. 38 and Fed.R.Civ.P. 11 — Request for Sanctions in Appellate Brief Does Not Satisfy Motion Requirements

From Cody v. Palmyra Park Hosp., Inc., 2010 U.S. App. LEXIS 20822 (Oct. 5, 2010): ***Palmyra makes a request for sanctions under Fed.R.Civ.P. 11 and 28 U.S.C. § 1927. Rule 11(b)(3) requires that a party must have knowledge, information or belief that her "factual contentions have evidentiary support or . . . will likely have evidentia ...
From Cody v. Palmyra Park Hosp., Inc., 2010 U.S. App. LEXIS 20822 (Oct. 5, 2010): ***Palmyra makes a request for sanctions under Fed.R.Civ.P. 11 and 28 U.S.C. § 1927. Rule 11(b)(3) requires that a party must have knowledge, information or…
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RICO — PSLRA Bar — Investment in LLC as Part of Tax-Avoidance Strategy = “Investment Contract” Triggering PSLRA Bar

From Affco Invest. 2001 LLC v. Proskauer Rose LLP, 2010 U.S. App. LEXIS 22105 (5th Cir. Oct. 27, 2010): This case involves a sophisticated income tax avoidance strategy in which taxpayers attempted to claim tax losses through a mechanism of offsetting digital options. [Footnote 1] Digital options are option contra ...
From Affco Invest. 2001 LLC v. Proskauer Rose LLP, 2010 U.S. App. LEXIS 22105 (5th Cir. Oct. 27, 2010): This case involves a sophisticated income tax avoidance strategy in which taxpayers attempted to claim tax losses through a mechanism of…
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The Defense of “Impracticability in Commercial Transactions” under Delaware Law (Interposed as a Defense to Loan Repayment Based on the Financial Meltdown)

From Headway Invest. Partners II, LP v. A.M. Todd Group, 2010 U.S. Dist. LEXIS 107178 (W.D. Mich. Oct. 6, 2010): [T]hree parties — Headway Investment Partners, Blue Orion Limited, and AM Todd Group — are the sole members of "Great Spirit Ventures, LLC," a limited liability company organized in Delaware in 2004 for the purpose of acq ...
From Headway Invest. Partners II, LP v. A.M. Todd Group, 2010 U.S. Dist. LEXIS 107178 (W.D. Mich. Oct. 6, 2010): [T]hree parties — Headway Investment Partners, Blue Orion Limited, and AM Todd Group — are the sole members of “Great…
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Breadth of Judicial Immunity from § 1983 Actions

From Green v. Mallia, 2010 U.S. App. LEXIS 22775 (5th Cir. Nov. 1, 2010): The Supreme Court "has consistently adhered to the rule that judges defending against § 1983 actions enjoy absolute immunity from damages liability for acts performed in their judicial capacities." [Footnote 7. Dennis v. Sparks, 449 U.S. 24, 27, 101 S. Ct ...
From Green v. Mallia, 2010 U.S. App. LEXIS 22775 (5th Cir. Nov. 1, 2010): The Supreme Court “has consistently adhered to the rule that judges defending against § 1983 actions enjoy absolute immunity from damages liability for acts performed in…
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Settlement Pending Appeal Moots All Claims Unless Settling Party (Here, Class Representative) Retains a Personal Stake in the Case — Good Quote about Mootness

From Sanford v. Memberworks, Inc., 2010 U.S. App. LEXIS 22601 (9th Cir. Oct. 25, 2010): "Mootness [is] the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)." U.S. Parole Comm'n v. Geraghty, ...
From Sanford v. Memberworks, Inc., 2010 U.S. App. LEXIS 22601 (9th Cir. Oct. 25, 2010): “Mootness [is] the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing)…
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Alleged Legal Malpractice Is Not a Sufficient Ground for Reconsideration under Rule 60(b)

From Aponte v. City of N.Y. Dep’t of Corrections, 377 Fed. Appx. 99 (2d Cir. 2010): Rule 60(b)(2) provides, in relevant part, that a motion for relief from a judgment or order may be granted based on "newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b ...
From Aponte v. City of N.Y. Dep’t of Corrections, 377 Fed. Appx. 99 (2d Cir. 2010): Rule 60(b)(2) provides, in relevant part, that a motion for relief from a judgment or order may be granted based on “newly discovered evidence…
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30(b)(6) Deposition Not Limited to Topics in Notice (Caselaw Split) — Professional Videographer Unnecessary Where Certified Stenographer Is Present, If Video Complies with Rule 30(b)(5)

From Am. Gen. Life Ins. Co. v. Billard, 2010 U.S. Dist. LEXIS 114961 (N.D. Iowa Oct. 28, 2010): [Scope of 30(b)(6) Deposition] The deposition of Nancy Yasso was taken in accordance with Federal Rule of Civil Procedure 30(b)(6), pursuant to a first amended notice served on AGLIC. In his notice, Billard stated that he w ...
From Am. Gen. Life Ins. Co. v. Billard, 2010 U.S. Dist. LEXIS 114961 (N.D. Iowa Oct. 28, 2010): [Scope of 30(b)(6) Deposition] The deposition of Nancy Yasso was taken in accordance with Federal Rule of Civil Procedure 30(b)(6), pursuant to…
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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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