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

35 U.S.C. § 285 vs. Inherent Power Sanctions

From Funai Elec. Co. v. Daewoo Elecs., 593 F. Supp. 2d 1088 (N.D. Cal. 2009): Expert witness fees are not available under § 285 but may be awarded under the Court's inherent power to sanction fraud or abuse of the judicial process. See Amsted Industries Inc. v. Buckeye Steel Castings Co., 23 F.3d 374, 377-78 (Fed. Cir. 1994).
From Funai Elec. Co. v. Daewoo Elecs., 593 F. Supp. 2d 1088 (N.D. Cal. 2009): Expert witness fees are not available under § 285 but may be awarded under the Court’s inherent power to sanction fraud or abuse of the…
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Meaning of “Evident Partiality” as Ground for Vacating Arbitration Award under §10(a)(2) of Federal Arbitration Act

From Molten Metal Equip. Innovations, Inc. v. Pyrotek, Inc., 2010 U.S. Dist. LEXIS 64238 (N.D. Ohio June 29, 2010): "The Federal Arbitration Act ("FAA") expresses a presumption that arbitration awards will be confirmed." *** "When courts are called on to review an arbitrator's decision, the review is very narrow; [it is] one of the narrow ...
From Molten Metal Equip. Innovations, Inc. v. Pyrotek, Inc., 2010 U.S. Dist. LEXIS 64238 (N.D. Ohio June 29, 2010): “The Federal Arbitration Act (“FAA”) expresses a presumption that arbitration awards will be confirmed.” *** “When courts are called on to…
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Retainer Agreement Conclusively Establishes Scope of Representation and Duty in Legal Malpractice Action in New York

From Hallman v. Kantor, 72 A.D.3d 895 (2d Dept. 2010): The defendants submitted a retainer agreement reflecting that the plaintiff "understood, accepted and agreed" that the "scope of" their "engagement" was "to represent" her as a co-executor of her deceased father's estate. This documentary evidence conclusively established a defens ...
From Hallman v. Kantor, 72 A.D.3d 895 (2d Dept. 2010): The defendants submitted a retainer agreement reflecting that the plaintiff “understood, accepted and agreed” that the “scope of” their “engagement” was “to represent” her as a co-executor of her deceased…
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Spoliation — Adverse Inference Instruction — Circuit Breakdown as to Whether Bad Faith, Intentionality or Mere Negligence Is Needed

Two cases: 1. From United States v. Laurent, 2010 U.S. App. LEXIS 12449 (1st Cir. June 17, 2010): A "spoliation" instruction, allowing an adverse inference, is commonly appropriate in both civil and criminal cases where there is evidence from which a reasonable jury might conclude that evidence favorable to one side was dest ...
Two cases: 1. From United States v. Laurent, 2010 U.S. App. LEXIS 12449 (1st Cir. June 17, 2010): A “spoliation” instruction, allowing an adverse inference, is commonly appropriate in both civil and criminal cases where there is evidence from which…
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Email Sufficiently Authenticated by Appearance and Contents — 12(f) Inapplicable to Affidavits and Evidence — Enforcement of Local Rule Limiting Brief Page Length Is Discretionary with the Court

From Hardin v. Belmont Textile Mach. Co., 2010 U.S. Dist. LEXIS 61121 (W.D.N.C. June 7, 2010): [12(f).] Rule 12(f) provides that "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f) (emphasis added). Contrary to Plaintiff' ...
From Hardin v. Belmont Textile Mach. Co., 2010 U.S. Dist. LEXIS 61121 (W.D.N.C. June 7, 2010): [12(f).] Rule 12(f) provides that “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.…
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May a Party Obtain a Protective Order Relieving It of the Duty to Access Back-Up Tapes When that Party’s Negligent Failure to Issue a Litigation Hold Caused the Data to be Backed Up? Yes.

From Major Tours, Inc. v. Colorel, 2010 U.S. Dist. LEXIS 62948 (D.N.J. June 22, 2010): The first question is whether, as a matter of law, a protective order under Rule 26(b)(2)(B) can ever be granted to a party when the evidence is inaccessible because of that party's failure to institute a litigation hold. The Court examines this questi ...
From Major Tours, Inc. v. Colorel, 2010 U.S. Dist. LEXIS 62948 (D.N.J. June 22, 2010): The first question is whether, as a matter of law, a protective order under Rule 26(b)(2)(B) can ever be granted to a party when the…
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Supreme Court Decision in Merck Does Not Apply to RICO — No Equitable Estoppel for Bad Acts after Plaintiff Should’ve Known of Its Injury — Equitable Estoppel v. Tolling — Restricting Boyle: Using vs. Being a Conspiracy/Enterprise

From Jay E. Hayden Found. v. First Neighbor Bank, N.A., 2010 U.S. App. LEXIS 12773 (7th Cir. June 22, 2010): A foundation created by Jay Hayden, and the estates of his mother and of another woman (R. Maurine Johnson), brought this RICO suit against a bank, two law firms, and seven persons connected with either the bank or the law firms. ...
From Jay E. Hayden Found. v. First Neighbor Bank, N.A., 2010 U.S. App. LEXIS 12773 (7th Cir. June 22, 2010): A foundation created by Jay Hayden, and the estates of his mother and of another woman (R. Maurine Johnson), brought…
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New York Relaxes Strict Privity Requirement in Legal Malpractice Action Brought by Personal Representative Against Counsel to Testator

From Estate of Schneider v. Finmann, 2010 NY Slip Op 5281, 2010 N.Y. LEXIS 1169 (N.Y. Ct. App. June 17, 2010): In April 2000, decedent purchased a $ 1 million life insurance policy. Over several years, he transferred ownership of that property from himself to an entity of which he was principal owner, then to another entity of which he w ...
From Estate of Schneider v. Finmann, 2010 NY Slip Op 5281, 2010 N.Y. LEXIS 1169 (N.Y. Ct. App. June 17, 2010): In April 2000, decedent purchased a $ 1 million life insurance policy. Over several years, he transferred ownership of…
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Sanctions Under the PSLRA — Eleventh Circuit

From Ledford v. Peeples, 605 F.3d 871 (11th Cir. 2010) (Note: This opinion is on reconsideration and modifies the opinion reported in our post of July 8, 2009): We pause here to elucidate the meaning of abuse of discretion review in the PSLRA context. We find it helpful to explain how abuse of discretion review differs from de novo
From Ledford v. Peeples, 605 F.3d 871 (11th Cir. 2010) (Note: This opinion is on reconsideration and modifies the opinion reported in our post of July 8, 2009): We pause here to elucidate the meaning of abuse of discretion review…
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Motion to Seal Summary Judgment Papers to Preserve Confidentiality of Settlement Denied — Standards for Sealing

From TIG Ins. Co. v. Firemen’s Fund Ins. Co., 2010 U.S. Dist. LEXIS 61519 (D.D.C. June 22, 2010): The [underlying] insurance coverage and liability actions [brought by third parties] against the plaintiff and the defendant were resolved in accordance with a confidential Settlement Agreement and Release (the "Settlement Agreement").... I ...
From TIG Ins. Co. v. Firemen’s Fund Ins. Co., 2010 U.S. Dist. LEXIS 61519 (D.D.C. June 22, 2010): The [underlying] insurance coverage and liability actions [brought by third parties] against the plaintiff and the defendant were resolved in accordance with…
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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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