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

Rule 54(b) Standards for Entering Partial Judgment — Ordinarily No 54(b) for Denial of Summary Judgment — Ninth Circuit 10b-5 Scienter Standard

From Securities and Exchange Commission v. Platforms Wireless Int’l Corp., 2010 U.S. App. LEXIS 15328 (9th Cir. July 27, 2010): [Rule 54(b)] Platforms questions the propriety of the district court's Rule 54(b) judgment resting on the underlying partial summary judgment. Rule 54(b) permits a district court to enter judgme ...
From Securities and Exchange Commission v. Platforms Wireless Int’l Corp., 2010 U.S. App. LEXIS 15328 (9th Cir. July 27, 2010): [Rule 54(b)] Platforms questions the propriety of the district court’s Rule 54(b) judgment resting on the underlying partial summary judgment.…
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Rule 11 and Res Judicata — Eleventh Circuit’s Three-Part Test for § 1927 Sanctions

From Meidinger v. Healthcare Indus. Oligopoly, 2010 U.S. App. LEXIS 16448 (11th Cir. Aug. 9, 2010): [Rule 11 and Res Judicata] "A plaintiff may be sanctioned under Rule 11 for filing claims barred by res judicata." Thomas [v. Evans, 880 F.2d 1235, 1240 (11th Cir. 1989). [Note: Because res j ...
From Meidinger v. Healthcare Indus. Oligopoly, 2010 U.S. App. LEXIS 16448 (11th Cir. Aug. 9, 2010): [Rule 11 and Res Judicata] “A plaintiff may be sanctioned under Rule 11 for filing claims barred by res judicata.” Thomas [v. Evans, 880…
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RICO — Pleading Enterprise, Operation and Management and Conspiracy after Boyle and Twombly

From In re Ins. Brokerage Antitrust Litig., 2010 U.S. App. LEXIS 17107 (3d Cir. Aug. 16, 2010): 1. Legal Standards a. Section 1962(c) i. The Enterprise Element ***After the District Court had dismissed plaintiffs' claims, and after we had heard argument in this appeal, the Supreme Court decided Boyle v. ...
From In re Ins. Brokerage Antitrust Litig., 2010 U.S. App. LEXIS 17107 (3d Cir. Aug. 16, 2010): 1. Legal Standards a. Section 1962(c) i. The Enterprise Element ***After the District Court had dismissed plaintiffs’ claims, and after we had heard…
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Failure to Disclose a Judgment as Required by Statute Is Sanctionable under Inherent Power without Bad Faith— Amount of Sanction Is Unaffected by Median Income or Criminal Penalties

From In re Plumeri, 2010 U.S. Dist. LEXIS 80256 (S.D.N.Y. Aug. 2, 2010): Bankruptcy debtor Saundra Plumeri ("Debtor") and her attorney, Richard D. Lamborn ("Lamborn"), appeal from an Order of the Honorable Martin Glenn, United States Bankruptcy Judge, imposing sanctions against Lamborn and awarding attorney's fees to appellee 64th Stree ...
From In re Plumeri, 2010 U.S. Dist. LEXIS 80256 (S.D.N.Y. Aug. 2, 2010): Bankruptcy debtor Saundra Plumeri (“Debtor”) and her attorney, Richard D. Lamborn (“Lamborn”), appeal from an Order of the Honorable Martin Glenn, United States Bankruptcy Judge, imposing sanctions…
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Antitrust — When Municipal Entities and Officials May Invoke the State Action Doctrine

From Rectrix Aerodrome Ctrs., Inc. v. Barnstable Municipal Airport Comm’n, 610 F.3d 8 (1st Cir. 2010): Rectrix claims that restricting Rectrix from selling jet fuels at the airport violates section 2 of the Sherman Act, which forbids monopolization, attempted monopolization and conspiracies to monopolize. 15 U.S.C. § 2. The district ...
From Rectrix Aerodrome Ctrs., Inc. v. Barnstable Municipal Airport Comm’n, 610 F.3d 8 (1st Cir. 2010): Rectrix claims that restricting Rectrix from selling jet fuels at the airport violates section 2 of the Sherman Act, which forbids monopolization, attempted monopolization…
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Burdens, Pleadings and Proof on 12(b)(2) Motion to Dismiss for Lack of Personal Jurisdiction

From SDS Korea Co. v. SDS USA, Inc., 2010 U.S. Dist. LEXIS 80223 (S.D. Cal. Aug. 4, 2010): Under Rule 12(b)(2) of the Federal Rules of Civil Procedure, a defendant may move to dismiss for lack of personal jurisdiction. The plaintiff then bears the burden of demonstrating that jurisdiction exists. Schwarzenegger v. Fred Martin Motor C ...
From SDS Korea Co. v. SDS USA, Inc., 2010 U.S. Dist. LEXIS 80223 (S.D. Cal. Aug. 4, 2010): Under Rule 12(b)(2) of the Federal Rules of Civil Procedure, a defendant may move to dismiss for lack of personal jurisdiction. The…
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Removal — Fraudulent Joinder — Fifth Circuit Test and Procedure

From Moore v. Goodyear Tire & Rubber Co., 2010 U.S. Dist. LEXIS 80703 (N.D. Tex. Aug. 10, 2010): "[T]he burden on the removing party is to prove that the joinder of the in-state parties was improper- -that is, to show that sham defendants were added to defeat jurisdiction." Smallwood v. I11. Cent. R.R. Co., 385 F.3d 568, 575 (5th ...
From Moore v. Goodyear Tire & Rubber Co., 2010 U.S. Dist. LEXIS 80703 (N.D. Tex. Aug. 10, 2010): “[T]he burden on the removing party is to prove that the joinder of the in-state parties was improper- -that is, to show…
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Scope of Statutory Privilege for Documents Created “Specifically for [PCAOB ]” — Issue of First Impression — Log Required — Categorical Log Rejected

From Silverman vs. Motorola, Inc., 2010 U.S. Dist. LEXIS 81671 (N.D. Ill. June 29, 2010): In its motion, KPMG seeks to quash the subpoenas issued to it by Plaintiffs and to preclude Plaintiffs from questioning KPMG, through Mr. Pratt and Mr. Parrott, regarding the PCAOB inspection process. Resolution of KPMG's motion turns on the statut ...
From Silverman vs. Motorola, Inc., 2010 U.S. Dist. LEXIS 81671 (N.D. Ill. June 29, 2010): In its motion, KPMG seeks to quash the subpoenas issued to it by Plaintiffs and to preclude Plaintiffs from questioning KPMG, through Mr. Pratt and…
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After § 1404 Transfer, Circuit Reviews Issues Decided by Transferor Court (Circuit Split) — Voluntary Dismissal of Federal Claim Does Not Affect §1367 Jurisdiction — What Is Inadvertent? (Good Quote)

From Anderson v. Aon Corp.,, 2010 U.S. App. LEXIS 15250 (7th Cir. July 26, 2010): Anderson's lead argument on appeal is that, once he withdrew the RICO claim, federal jurisdiction vanished and 28 U.S.C. § 1447(c) obliged the court to remand. Section 1447(c) says, among other things, that "[i]f at any time before final judgment it appear ...
From Anderson v. Aon Corp.,, 2010 U.S. App. LEXIS 15250 (7th Cir. July 26, 2010): Anderson’s lead argument on appeal is that, once he withdrew the RICO claim, federal jurisdiction vanished and 28 U.S.C. § 1447(c) obliged the court to…
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Court Enjoys Wide Discretion to Decide If There Is a Pattern of Delay or Disobedience to Court Orders Justifying Rule 16(f) Sanctions — Denial of Sanctions for Untimely Production of Minimally Relevant Documents Upheld

From Guimaraes v. Nors, 366 F. App’x. 51(11th Cir. 2010): Under Rule 16(f), a court may impose sanctions if a party or its attorney violates a scheduling or other pretrial order, including a discovery order. Fed.R.Civ.P. 16(f)(1)(C). We have upheld the denial of sanctions where the non-moving party had not timely produced documents ...
From Guimaraes v. Nors, 366 F. App’x. 51(11th Cir. 2010): Under Rule 16(f), a court may impose sanctions if a party or its attorney violates a scheduling or other pretrial order, including a discovery order. Fed.R.Civ.P. 16(f)(1)(C). We have upheld…
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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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