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

Speaking Objections at Deposition Sanctioned under Rule 30(d) — Excessive Number of Unnecessary Objections as Sanctionable Even If None Is Argumentative or Suggestive

From Craig v. St. Anthony’s Med. Ctr., 2010 U.S. App. LEXIS 14661 (8th Cir. July 19, 2010): Once the deposition started, Harter continually made argumentative and suggestive objections. He also engaged in private and off-the-record conversations with his client, answered multiple questions in place of his client, and instructed his cli ...
From Craig v. St. Anthony’s Med. Ctr., 2010 U.S. App. LEXIS 14661 (8th Cir. July 19, 2010): Once the deposition started, Harter continually made argumentative and suggestive objections. He also engaged in private and off-the-record conversations with his client, answered…
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Filing of Amended Complaint Does Not Permit Defendant to Amend Counterclaims as of Right to Add Claims Unrelated to the Amendment — 2009 Amendments to Rule 15 and Deletion of Rule 13(f) Explained — 3 Extra Days for Electronic Service

From UPEK, Inc. v. AuthenTec, Inc., 2010 U.S. Dist. LEXIS 76807 (N.D. Cal. July 6, 2010): UPEK contends that AuthenTec's entitlement to amend its counterclaims as of right ended twenty-four days after UPEK filed its answer to the counterclaims. UPEK filed an amended complaint on the same day it answered AuthenTec's original counterclai ...
From UPEK, Inc. v. AuthenTec, Inc., 2010 U.S. Dist. LEXIS 76807 (N.D. Cal. July 6, 2010): UPEK contends that AuthenTec’s entitlement to amend its counterclaims as of right ended twenty-four days after UPEK filed its answer to the counterclaims. UPEK…
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Admissibility of Blog Posts — Caselaw Split

From QVC, Inc. v. Your Vitamins, Inc., 2010 U.S. Dist. LEXIS 76073 (D. Del. July 27, 2010): [Footnote 19] The court need not definitively determine, therefore, whether blog posts should be deemed relevant and credible evidence (generally and, in this context, as evidence of consumer confusion) — an issue of first impression for th ...
From QVC, Inc. v. Your Vitamins, Inc., 2010 U.S. Dist. LEXIS 76073 (D. Del. July 27, 2010): [Footnote 19] The court need not definitively determine, therefore, whether blog posts should be deemed relevant and credible evidence (generally and, in this…
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Local Controversy Exception of CAFA May Be Proved “Practically” — Wide Discretion Accorded Trial Court to Determine Evidence — No Need for Exhaustive Discovery

From Graphic Commc’ns Local 1B Health & Welfare Fund "A" v. CVS Caremark Corp, 2010 U.S. Dist. LEXIS 73459 (D. Minn. July 19, 2010): The pharmacies suggest the Class Action Fairness Act (the "Fairness Act") grants subject matter jurisdiction because there is minimal diversity, and an aggregate amount in controversy of $5 million or more ...
From Graphic Commc’ns Local 1B Health & Welfare Fund “A” v. CVS Caremark Corp, 2010 U.S. Dist. LEXIS 73459 (D. Minn. July 19, 2010): The pharmacies suggest the Class Action Fairness Act (the “Fairness Act”) grants subject matter jurisdiction because…
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Failure to Participate in Drafting of Pretrial Order Sanctionable under Rule 16(f) — Lawyer Not Vicariously Liable under § 1927 for Failure to Monitor Co-Counsel

From FM Indus., Inc. v. Citicorp Credit Servs., 2010 U.S. App. LEXIS 15057 (7th Cir. July 22, 2010): [Rule 16(f)] Trial never occurred. Local rules require the parties to cooperate to produce a pretrial order. Northern District of Illinois Local Rule 16.1 Appendix ("Standing Order Establishing Pretrial Procedure") Instr ...
From FM Indus., Inc. v. Citicorp Credit Servs., 2010 U.S. App. LEXIS 15057 (7th Cir. July 22, 2010): [Rule 16(f)] Trial never occurred. Local rules require the parties to cooperate to produce a pretrial order. Northern District of Illinois Local…
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Representing Adverse Party in Substantially Related Claim Is Actionable Breach of Fiduciary Duty Owed to Prior Client

From Kurman v. Schnapp, 73 A.D.3d 435 (1st Dept. 2010): Plaintiff's breach of fiduciary duty cause of action is not duplicative of his legal malpractice cause of action, since it is premised on separate facts that support a different theory (see Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1, 9-10, 865 N.Y.S ...
From Kurman v. Schnapp, 73 A.D.3d 435 (1st Dept. 2010): Plaintiff’s breach of fiduciary duty cause of action is not duplicative of his legal malpractice cause of action, since it is premised on separate facts that support a different theory…
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Rule 15 Permits Amendment of Complaint against Non-Moving Defendants after Rule 12 Motion — Investment Injury under § 1962(a) of RICO — Enterprise May Be Both Vehicle and Victim Enterprise

From Allen v. Devine, 2010 U.S. Dist. LEXIS 74495 (E.D.N.Y. July 24, 2010): [Rule 15] Pursuant to Rule 15, the right to amend the complaint once without leave from the Court does not terminate until 21 days after the filing of either (1) an answer or (2) a motion pursuant to Rule 12(b), (e), or (f) ...
From Allen v. Devine, 2010 U.S. Dist. LEXIS 74495 (E.D.N.Y. July 24, 2010): [Rule 15] Pursuant to Rule 15, the right to amend the complaint once without leave from the Court does not terminate until 21 days after the filing…
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Must Trial Court Stay Proceedings Pending Appeal of Denial of Motion to Compel Arbitration? Circuit Split

From McArdle v. AT&T Mobility LLC, 2010 U.S. Dist. LEXIS 73519 (N.D. Cal. July 20, 2010): Some jurisdictions hold that the trial court must stay proceedings while a denial of a motion to compel arbitration is appealed. See, e.g., Bradford-Scott Data Corp. v. Physician Computer Network, 128 F.3d 504, 505-06 (7th Cir. 1997); ...
From McArdle v. AT&T Mobility LLC, 2010 U.S. Dist. LEXIS 73519 (N.D. Cal. July 20, 2010): Some jurisdictions hold that the trial court must stay proceedings while a denial of a motion to compel arbitration is appealed. See, e.g., Bradford-Scott…
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Ability to Pay and Safe Harbor Irrelevant to § 1927 Sanctions — Facial Unconstitutionality of § 1927 Waived when Not Asserted in Challenge to Sanctionability of Conduct — Circuit Panel Bound by Prior Panel Precedent

From Roth v. Spruell, 2010 U.S. App. LEXIS 15112 (10th Cir. July 22, 2010): [On a prior appeal in this case abbreviated Roth II], we considered whether defendants had followed the procedures outlined in Rule 11. Because defendants had not done so, we concluded that the district court had abused its discretion in granting defend ...
From Roth v. Spruell, 2010 U.S. App. LEXIS 15112 (10th Cir. July 22, 2010): [On a prior appeal in this case abbreviated Roth II], we considered whether defendants had followed the procedures outlined in Rule 11. Because defendants had not…
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RICO — Open-Ended Continuity — Predicate Acts, Not Other Conduct, Must Form the Enterprise’s Regular Way of Doing Business

From Carson v. Vernon Township, 2010 U.S. Dist. LEXIS 73620 (D.N.J. July 21, 2010): Plaintiff, Richard Carson, a member of the Township Council ("Council") of Defendant, Vernon Township ("Township"), filed a Complaint and subsequently an Amended Complaint against the Defendants, who include the Township, its Police Department, a police of ...
From Carson v. Vernon Township, 2010 U.S. Dist. LEXIS 73620 (D.N.J. July 21, 2010): Plaintiff, Richard Carson, a member of the Township Council (“Council”) of Defendant, Vernon Township (“Township”), filed a Complaint and subsequently an Amended Complaint against the Defendants,…
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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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