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

Arbitration Agreement’s Selection of State Arbitration Act Does Not Entirely Displace FAA or Effect Waiver of Right to Remove — Intent to Apply State Vacatur Standards Must be Clear

From Pepper Hamilton, LLP v. Underwriting Members of Syndicate 53 at Lloyd's, 2010 U.S. App. LEXIS 17195 (3d Cir. Aug. 18, 2010): The FAA is divided into three chapters, two of which are implicated here. Chapter 1 (the "domestic FAA"), 9 U.S.C. §§ 1-16, is a set of default rules "designed 'to overrule the judiciary's longstanding refu ...
From Pepper Hamilton, LLP v. Underwriting Members of Syndicate 53 at Lloyd’s, 2010 U.S. App. LEXIS 17195 (3d Cir. Aug. 18, 2010): The FAA is divided into three chapters, two of which are implicated here. Chapter 1 (the “domestic FAA”),…
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Delay of 4 Months before Serving Rule 11 Motion and 13 Months before Filing Is Not Undue, If Safe Harbor Honored — Calculating Non-Specific Attorneys’ Fees by Percentage of Frivolous Counts

From Golden v. Helen Sigman & Assocs., Ltd., 2010 U.S. App. LEXIS 13585 (7th Cir. July 2, 2010): Sigman and Thomas delayed filing their Rule 11 motions for approximately a year after they filed their motions to dismiss. Golden submits that this lassitude should have led to a dismissal of the request. Sigman and Thomas counter that Golde ...
From Golden v. Helen Sigman & Assocs., Ltd., 2010 U.S. App. LEXIS 13585 (7th Cir. July 2, 2010): Sigman and Thomas delayed filing their Rule 11 motions for approximately a year after they filed their motions to dismiss. Golden submits…
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Defendant May Implead Contractual Indemnitor as Third-Party Defendant without Awaiting Determination of Its Liability vis-à-vis Plaintiff

From Frontier Commc’ns Corp. v. Barrett Paving Materials, Inc., 2010 U.S. Dist. LEXIS 87990 (D. Me. June 25, 2010): In something of a false-start, the City argues that the Railroad's third-party complaint can be dismissed as premature because, assuming an indemnification agreement exists, it has not yet been breached. In the City's vie ...
From Frontier Commc’ns Corp. v. Barrett Paving Materials, Inc., 2010 U.S. Dist. LEXIS 87990 (D. Me. June 25, 2010): In something of a false-start, the City argues that the Railroad’s third-party complaint can be dismissed as premature because, assuming an…
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Existing Jury Instructions Against Use of Social Networks, Google, Internet Research, Etc.

The Going Paperless blog of Molly DiBianca collects the jury instructions proposed by the U.S. Judicial Conference and those adopted by 10 states, 3 Circuits and the Northern District of Iowa. See SOCIAL MEDIA RESEARCH REPOSITORY. It is extremely useful. ...
The Going Paperless blog of Molly DiBianca collects the jury instructions proposed by the U.S. Judicial Conference and those adopted by 10 states, 3 Circuits and the Northern District of Iowa. See SOCIAL MEDIA RESEARCH REPOSITORY. It is extremely…
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Rule 12(f) Does Not Authorize Court to Strike Damages Claim on Ground Damages Are Precluded as a Matter of Law — Issue of First Impression

From Whittlestone, Inc. v. Handi-Craft Co., 2010 U.S. App. LEXIS 1713 (9th Cir. Aug. 17, 2010): In this case of first impression, we hold that Rule 12(f) of the Federal Rules of Civil Procedure does not authorize a district court to strike a claim for damages on the ground that such damages are precluded as a matter of law. *** Rul ...
From Whittlestone, Inc. v. Handi-Craft Co., 2010 U.S. App. LEXIS 1713 (9th Cir. Aug. 17, 2010): In this case of first impression, we hold that Rule 12(f) of the Federal Rules of Civil Procedure does not authorize a district court…
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Diminution in Value of Limited Partnership Interests As a Derivative, Not a Direct, Injury

From Continental Cas. Co. v. PricewaterhouseCoopers, LLP, 2010 WL 2569187 (N.Y. Ct. App. June 29, 2010): In these actions, plaintiffs, former limited partners of Lipper Convertibles, LP, assert direct claims of fraud against PricewaterhouseCoopers, LLP (PwC), the auditor of Lipper Convertibles' annual financial statements for the years 19 ...
From Continental Cas. Co. v. PricewaterhouseCoopers, LLP, 2010 WL 2569187 (N.Y. Ct. App. June 29, 2010): In these actions, plaintiffs, former limited partners of Lipper Convertibles, LP, assert direct claims of fraud against PricewaterhouseCoopers, LLP (PwC), the auditor of Lipper…
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Range of Available Sanctions for Spoliation

From D'Onofrio v. SFX Sports Group, Inc., 2010 U.S. Dist. LEXIS 86711 (D.D.C. Aug. 24, 2010): The Federal Rules of Civil Procedure do not contain a provision specifying a remedy for the failure to preserve evidence. The trial court, nevertheless, has a great deal of discretion in exercising its inherent powers to fashion an appropriate ...
From D’Onofrio v. SFX Sports Group, Inc., 2010 U.S. Dist. LEXIS 86711 (D.D.C. Aug. 24, 2010): The Federal Rules of Civil Procedure do not contain a provision specifying a remedy for the failure to preserve evidence. The trial court, nevertheless,…
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Sanctions — Ninth Circuit Declines to Resolve whether Finding of Bad Faith Must be Supported by Clear and Convincing Evidence

From Lahiri v. Universal Music & Video Dist. Corp., 606 F.3d 1216 (9th Cir. 2010): An attorney who unreasonably and vexatiously "multiplies the proceedings" may be required to pay the excess fees and costs caused by his conduct. 28 U.S.C. § 1927. Recklessness suffices for § 1927 sanctions, but sanctions imposed under the district court ...
From Lahiri v. Universal Music & Video Dist. Corp., 606 F.3d 1216 (9th Cir. 2010): An attorney who unreasonably and vexatiously “multiplies the proceedings” may be required to pay the excess fees and costs caused by his conduct. 28 U.S.C.…
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The United States Has Not Waived Sovereign Immunity for Civil RICO Claims

From Partain v. Isgur, 2010 U.S. App. LEXIS 15730 (5th Cir. July 28, 2010): [T]o the extent Partain seeks to recover against the United States under the RICO statute, no waiver of the government's immunity extends to such laws. See McNeily v. United States, 6 F.3d 343, 350 (5th Cir. 1993).
From Partain v. Isgur, 2010 U.S. App. LEXIS 15730 (5th Cir. July 28, 2010): [T]o the extent Partain seeks to recover against the United States under the RICO statute, no waiver of the government’s immunity extends to such laws. See…
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Standard of Review of Magistrate Judge Discovery Decisions

From Moore v. Napolitano, 2010 U.S. Dist. LEXIS 70892 (D.D.C. July 15, 2010): Federal Rule of Civil Procedure 72(a) and [D.D.C.] Local Civil Rule 72.2(b) allow a party to seek reconsideration of a magistrate judge's decision in a discovery dispute. "On review, the magistrate judge's decision is entitled to great deference unless it is cl ...
From Moore v. Napolitano, 2010 U.S. Dist. LEXIS 70892 (D.D.C. July 15, 2010): Federal Rule of Civil Procedure 72(a) and [D.D.C.] Local Civil Rule 72.2(b) allow a party to seek reconsideration of a magistrate judge’s decision in a discovery dispute.…
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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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