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

Sanctions — § 1927 Standards — Third Circuit

From In re Beers, 2010 U.S. App. LEXIS 22475 (3d Cir. Oct. 29, 2010): Beers contends that the District Court erred in concluding that the legal standard for 28 U.S.C. § 1927 sanctions includes a required element of bad faith. We find no such error. Both the District Court and the Bankruptcy Court thoroughly reviewed the applicable law ...
From In re Beers, 2010 U.S. App. LEXIS 22475 (3d Cir. Oct. 29, 2010): Beers contends that the District Court erred in concluding that the legal standard for 28 U.S.C. § 1927 sanctions includes a required element of bad faith.…
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Even After Hall Street, Court May Decline to Enforce Arbitration Award on Grounds of Public Policy

From Shaw Constructors, Inc. v. HPD, LLC, 2010 U.S. Dist. LEXIS 114598 (E.D. La. Oct. 25, 2010): In 2008, the Supreme Court decided Hall Street Associates v. Mattel, Inc., in which it held that the statutory grounds contained in the FAA are the exclusive means by which an arbitral award may be vacated. 552 U.S. at 584. The Court d ...
From Shaw Constructors, Inc. v. HPD, LLC, 2010 U.S. Dist. LEXIS 114598 (E.D. La. Oct. 25, 2010): In 2008, the Supreme Court decided Hall Street Associates v. Mattel, Inc., in which it held that the statutory grounds contained in the…
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Plaintiff’s PSLRA Notice of Pendency of Class Action — Which Must Identify “Claims Asserted” — Must List All Federal Securities, but Not All State Law, Claims

From Poptech, LP v. Stewardship Inv. Advisors, LLC, 2010 U.S. Dist. LEXIS 114711 (D. Conn. Oct. 28, 2010): Currently pending before the Court is Plaintiff Poptech, LP's ("Poptech's") Motion for Appointment as Lead Plaintiff and to Approve Its Selection of Lead Counsel . . . . In the motion, Poptech seeks to be appointed as co-Lead Plainti ...
From Poptech, LP v. Stewardship Inv. Advisors, LLC, 2010 U.S. Dist. LEXIS 114711 (D. Conn. Oct. 28, 2010): Currently pending before the Court is Plaintiff Poptech, LP’s (“Poptech’s”) Motion for Appointment as Lead Plaintiff and to Approve Its Selection of…
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What Are Discrete Subparts of Interrogatories? — Boilerplate Objections — Promise to Produce at Unspecified Time Inadequate — Res Judicata No Defense to Discovery — Subpoena May Not be Used to Compel Party to Produce Objected-to Documents

From Mezu v. Morgan St. Univ., 2010 U.S. Dist. LEXIS 113817 (D. Md. Oct. 22, 2010): Fed. R. Civ. P. 33(a)(1) provides that "a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts." *** Probably the best test of whether subsequent questions, within a ...
From Mezu v. Morgan St. Univ., 2010 U.S. Dist. LEXIS 113817 (D. Md. Oct. 22, 2010): Fed. R. Civ. P. 33(a)(1) provides that “a party may serve on any other party no more than 25 written interrogatories, including all discrete…
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Joint Defense (Common Interest) Agreement Need Not be in Writing and Failed Attempt to Draft Writing Does Not Defeat Assertion of the Privilege

From Marianist Province of U.S., Inc. v. Century Indem. Co., 2010 U.S. Dist. LEXIS 110888 (D. Colo. Oct. 5, 2010): In Colorado, the joint defense (or common interest) doctrine is an exception to the general rule that the attorney-client privilege is waived when privileged information is disclosed to third parties. Black v. Southwester ...
From Marianist Province of U.S., Inc. v. Century Indem. Co., 2010 U.S. Dist. LEXIS 110888 (D. Colo. Oct. 5, 2010): In Colorado, the joint defense (or common interest) doctrine is an exception to the general rule that the attorney-client privilege…
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No Cause of Action for Sanctions under New York State Law

From Calabro & Assocs. v. Katz, 26 Misc. 3d 137A, 907 N.Y.S.2d 99 (1st Dept. 2010): The counterclaim for sanctions under 22 NYCRR 130-1.1 should have been dismissed, since no independent cause of action for such sanctions exists (see Siegel, NY Practice § 414A [4th ed]; see also 22 NYCRR 130-1.1[d]). In any event, construed as a motion ...
From Calabro & Assocs. v. Katz, 26 Misc. 3d 137A, 907 N.Y.S.2d 99 (1st Dept. 2010): The counterclaim for sanctions under 22 NYCRR 130-1.1 should have been dismissed, since no independent cause of action for such sanctions exists (see Siegel,…
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§ 1746 Declaration = “Affidavit” within Rule 56 — If Lacking Statutory Language, It Is Inadmissible on Summary Judgment

From Kelly v. U.S. Bank, 2010 U.S. Dist. LEXIS 110127 (D. Or. July 30, 2010): U.S. Bank objects that this declaration is inadmissible because it was unsworn. The court agrees that the declaration is inadmissible.... An affidavit is, by definition, a statement taken under oath. See Black's Law Dictionary 66 (9th ed. 2009) (defining ...
From Kelly v. U.S. Bank, 2010 U.S. Dist. LEXIS 110127 (D. Or. July 30, 2010): U.S. Bank objects that this declaration is inadmissible because it was unsworn. The court agrees that the declaration is inadmissible…. An affidavit is, by definition,…
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Permissible vs. Impermissible Testimony from Legal Experts (Patent Case)

From Bone Care Int’l LLC v. Pentech Pharmaceuticals, Inc., 2010 U.S. Dist. LEXIS 105118 (N.D. Ill. Oct. 1, 2010): Plaintiffs *** submit that Mr. Sofocleous should be barred from testifying regarding the area in which they concede Mr. Sofocleous has professional experience: patent law. *** The Court agrees that any testimony Mr. ...
From Bone Care Int’l LLC v. Pentech Pharmaceuticals, Inc., 2010 U.S. Dist. LEXIS 105118 (N.D. Ill. Oct. 1, 2010): Plaintiffs *** submit that Mr. Sofocleous should be barred from testifying regarding the area in which they concede Mr. Sofocleous has…
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Non-Party Sanctioned for Unauthorized Practice of Law in Drafting Complaint for Pro Se Litigant for an Improper Purpose

From Barry v. Heimer, 2010 U.S. App. LEXIS 18858 (9th Cir. Aug. 23, 2010): Rae Heimer, a non-party to the underlying action, appeals pro se from the district court's order sanctioning her under its inherent power to curb abusive litigation practices after dismissing the complaint she prepared for failure to state a claim. *** The d ...
From Barry v. Heimer, 2010 U.S. App. LEXIS 18858 (9th Cir. Aug. 23, 2010): Rae Heimer, a non-party to the underlying action, appeals pro se from the district court’s order sanctioning her under its inherent power to curb abusive litigation…
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When a Claim Can be Supported by Alternate and Independent State or Federal Law Theories, No Federal Jurisdiction Attaches

From Ballesteros v. Charter College, 2010 U.S. Dist. LEXIS 109855 (C.D. Cal. Oct. 4, 2010): The Ninth Circuit has explained that "[w]hen a claim can be supported by alternative and independent theories-one of which is a state law theory and one of which is a federal law theory-federal question jurisdiction does not attach because federal ...
From Ballesteros v. Charter College, 2010 U.S. Dist. LEXIS 109855 (C.D. Cal. Oct. 4, 2010): The Ninth Circuit has explained that “[w]hen a claim can be supported by alternative and independent theories-one of which is a state law theory and…
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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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