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

Personal Representative of Estate May Sue Attorney of Decedent for Negligent Estate Planning — New York Court of Appeals

From Estate of Schneider v. Finmann, 15 N.Y.3d 306 (2010): At issue in this appeal is whether an attorney may be held liable for damages resulting from negligent representation in estate tax planning that causes enhanced estate tax liability. We hold that a personal representative of an estate may maintain a legal malpractice claim for ...
From Estate of Schneider v. Finmann, 15 N.Y.3d 306 (2010): At issue in this appeal is whether an attorney may be held liable for damages resulting from negligent representation in estate tax planning that causes enhanced estate tax liability. We…
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Email / Admissibility Issues on Summary Judgment

From Mike Hooks Dredging Co. v. Eckstein Marine Serv., 2010 U.S. Dist. LEXIS 101724 (E.D. La. Sept. 27, 2010): Eckstein opposes Longman's motion, arguing that a genuine issue of material fact exists as to whether Longman's was a broker or a charterer. *** It argues that an email sent by Longman's related to the litigation admitted that L ...
From Mike Hooks Dredging Co. v. Eckstein Marine Serv., 2010 U.S. Dist. LEXIS 101724 (E.D. La. Sept. 27, 2010): Eckstein opposes Longman’s motion, arguing that a genuine issue of material fact exists as to whether Longman’s was a broker or…
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No Error in Allowing Jury to Observe Objections, Instructions and Colloquy on Video Deposition

From McElgunn v. CUNA Mut. Ins. Soc., 700 F. Supp. 2d 1141 (D.S.D. 2010): Defendant argues that the court erred in allowing the jury to observe defendant's numerous objections found throughout the designated portions of JoAnn Schonasky's videotaped deposition. Defendant also argues that the jury should not have been allowed to observe the ...
From McElgunn v. CUNA Mut. Ins. Soc., 700 F. Supp. 2d 1141 (D.S.D. 2010): Defendant argues that the court erred in allowing the jury to observe defendant’s numerous objections found throughout the designated portions of JoAnn Schonasky’s videotaped deposition. Defendant…
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Good Bye to Docket Numbers

From Victor Stanley, Inc. v. Creative Pipe, Inc., 2010 U.S. Dist. LEXIS 93644 (D. Md. Sept. 9, 2010): Court papers formerly were cited as "Paper No." or "Doc. No." The recently-published Nineteenth Edition of The Bluebook provides that electronically-filed documents should be cited as "ECF No."
From Victor Stanley, Inc. v. Creative Pipe, Inc., 2010 U.S. Dist. LEXIS 93644 (D. Md. Sept. 9, 2010): Court papers formerly were cited as “Paper No.” or “Doc. No.” The recently-published Nineteenth Edition of The Bluebook provides that electronically-filed documents…
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RICO Is Not Extraterritorial — Part 2

From Norex Petroleum Ltd. v. Access Indus., 2010 U.S. App. LEXIS 19982 (2d Cir. Sept. 28, 2010): The issue before us is whether a United States federal court can properly hear a claim under the Racketeer Influenced and Corrupt Organization Act ("RICO"), 18 U.S.C. § 1961 et seq., arising from allegations of a conspiracy which primarily i ...
From Norex Petroleum Ltd. v. Access Indus., 2010 U.S. App. LEXIS 19982 (2d Cir. Sept. 28, 2010): The issue before us is whether a United States federal court can properly hear a claim under the Racketeer Influenced and Corrupt Organization…
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Making Rule 37(b)(2) Contempt Sanction Contingent on Non-Payment of Attorneys’ Fees Renders It Civil (Because Purgeable) and Not Criminal, Even If the Sanction Is Imprisonment — No Case-Ending Sanctions Absent Prejudice

From Victor Stanley, Inc. v. Creative Pipe, Inc., 2010 U.S. Dist. LEXIS 93644 (D. Md. Sept. 9, 2010): Through four years of discovery, during which Defendant Mark Pappas, President of Defendant CPI, had actual knowledge of his duty to preserve relevant information, Defendants delayed their electronically stored information ("ESI") produ ...
From Victor Stanley, Inc. v. Creative Pipe, Inc., 2010 U.S. Dist. LEXIS 93644 (D. Md. Sept. 9, 2010): Through four years of discovery, during which Defendant Mark Pappas, President of Defendant CPI, had actual knowledge of his duty to preserve…
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District Court Lacks Inherent Power to Sanction Counsel for Conduct During Arbitration Even If Court Ordered the Parties to Arbitration (Note: Not Court-Annexed Arbitration)

The Court ordered the parties to arbitration pursuant to contract, on defendant’s motion, in Positive Software Solutions, Inc. v. New Century Mortgage Corp., 2010 U.S. App. LEXIS 19072 (5th Cir. Sept. 13, 2010): During arbitration, [Attorney] Camina advised [Defendant] New Century on various discovery matters. In September 2004, the dis ...
The Court ordered the parties to arbitration pursuant to contract, on defendant’s motion, in Positive Software Solutions, Inc. v. New Century Mortgage Corp., 2010 U.S. App. LEXIS 19072 (5th Cir. Sept. 13, 2010): During arbitration, [Attorney] Camina advised [Defendant] New…
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“No Actions” Clause Barring Suit and Requiring Indemnification of Defense Costs If Suit Is Filed Does Not Extend to Attorneys’ Fees Incurred in Bringing Counterclaim

From McKissick v. Gemstar-TV Guide Int’l, Inc., 2010 U.S. App. LEXIS 18753 (10th Cir. Sept. 8, 2010): The *** "No Actions Clause" [provides]: 17. No Actions. Employee represents and warrants that she has not filed any complaints or charges or lawsuits against the Company with any governmental agency or any court, ...
From McKissick v. Gemstar-TV Guide Int’l, Inc., 2010 U.S. App. LEXIS 18753 (10th Cir. Sept. 8, 2010): The *** “No Actions Clause” [provides]: 17. No Actions. Employee represents and warrants that she has not filed any complaints or charges or…
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Relaxed Timeliness Requirements for Rule 11 Motions under the PSLRA

From In re Star Gas Secs. Litig., 2010 U.S. Dist. LEXIS 103475 (D. Conn. Sept. 30, 2010): Plaintiffs contend that Defendants' motion was untimely filed on April 3, 2007, because judgment entered against Plaintiffs on August 23, 2006. Although PSLRA Section 78u-4(c), which mandates that a court conduct a inquiry under Rule 11(b) "upon fina ...
From In re Star Gas Secs. Litig., 2010 U.S. Dist. LEXIS 103475 (D. Conn. Sept. 30, 2010): Plaintiffs contend that Defendants’ motion was untimely filed on April 3, 2007, because judgment entered against Plaintiffs on August 23, 2006. Although PSLRA…
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May a Federal Court Enter Summary Judgment on an Issue That Is Less Than a Full “Claim”? — Caselaw Split as to Meaning of “Claim”

Hamblin v. British Airways PLC, 2010 U.S. Dist. LEXIS 67401 (E.D.N.Y. June 15, 2010): Some courts have limited the availability of summary judgment motions to foreclosure of specific claims, not remedies. For example, in In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 517 F. Supp. 2d 662, 666 (S.D.N.Y. 2007) ("MTBE"), ...
Hamblin v. British Airways PLC, 2010 U.S. Dist. LEXIS 67401 (E.D.N.Y. June 15, 2010): Some courts have limited the availability of summary judgment motions to foreclosure of specific claims, not remedies. For example, in In re Methyl Tertiary Butyl Ether…
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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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