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

Expert Opinion Formed Prematurely (Prior to Significant Discovery) Excluded

From State Farm Fire & Cas. Co. v. Jarden Corp., 2010 U.S. Dist. LEXIS 60327 (S.D. Ind. June 16, 2010): Defendants' first contention is that Jones's opinions fail to adhere to the scientific method because they did not follow the generally accepted scientific norms set forth in NFPA (National Fire Protection Association) 921, Guide for F ...
From State Farm Fire & Cas. Co. v. Jarden Corp., 2010 U.S. Dist. LEXIS 60327 (S.D. Ind. June 16, 2010): Defendants’ first contention is that Jones’s opinions fail to adhere to the scientific method because they did not follow the…
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Enforceability of Entire Agreement Containing Arbitration Clause Is for Arbitrator to Decide — Court May Consider Only Enforceability of Agreement to Arbitrate Specific Issue — U.S. Supreme Court

An attack on the enforceability of a contract containing an arbitration clause is for the arbitrator to resolve, under the Supreme Court’s decision in Rent-A-Center, West, Inc. v. Jackson, 2010 U.S. LEXIS 4981 (U.S. June 21, 2010). Only an attack on the enforceability of the arbitration clause itself is subject to judicial determination. The Court conside ...
An attack on the enforceability of a contract containing an arbitration clause is for the arbitrator to resolve, under the Supreme Court’s decision in Rent-A-Center, West, Inc. v. Jackson, 2010 U.S. LEXIS 4981 (U.S. June 21, 2010). Only an attack…
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First-Filed Rule — Exceptions — Forum-Shopping Not Necessarily Abusive

From Nat’l Union Fire Ins. Co. of Pittsburgh, PA. v. Aker Kvaerner/IHI, 2010 U.S. Dist. LEXIS 60019 (S.D. Tex. June 16, 2010): A. The First-to-File Rule The first-to-file rule is based on "principles of comity and sound judicial administration." Save Power Ltd. v. Syntek Fin. Corp. , 121 F.3d 947, 950 (5th Cir. ...
From Nat’l Union Fire Ins. Co. of Pittsburgh, PA. v. Aker Kvaerner/IHI, 2010 U.S. Dist. LEXIS 60019 (S.D. Tex. June 16, 2010): A. The First-to-File Rule The first-to-file rule is based on “principles of comity and sound judicial administration.” Save…
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Supplementation of Expert Report to Add Study from Unretained Expert Barred

From State Farm Fire & Cas. Co. v. Jarden Corp., 2010 U.S. Dist. LEXIS 60327 (S.D. Ind. June 16, 2010): Plaintiff moves first to exclude any reference to a study conducted by Scott Barnhill in which Mr. Barnhill recorded the results of his testing of the characteristics of heaters similar to the one at issue here as well as the potential ...
From State Farm Fire & Cas. Co. v. Jarden Corp., 2010 U.S. Dist. LEXIS 60327 (S.D. Ind. June 16, 2010): Plaintiff moves first to exclude any reference to a study conducted by Scott Barnhill in which Mr. Barnhill recorded the…
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Consumer Complaint Emails Admissible under Residual Exception to the Hearsay Rule — Meaning of a “Competent” Witness

From State of Conn. v. Sunrise Herbal Remedies, Inc., 296 Conn. 556, 2010 Conn. LEXIS 196 (Conn. Sup. Ct. 2010): The plaintiff, the state of Connecticut, appeals from the decision of the trial court granting the motions of the defendants, Valerie Hawk-Hoffman and David Hoffman, to dissolve prejudgment attachments originally filed agains ...
From State of Conn. v. Sunrise Herbal Remedies, Inc., 296 Conn. 556, 2010 Conn. LEXIS 196 (Conn. Sup. Ct. 2010): The plaintiff, the state of Connecticut, appeals from the decision of the trial court granting the motions of the defendants,…
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Attacking Arbitration Award on Grounds Known but Silently Acquiesced in until Award Rendered — “Evident Partiality” — Failure to Postpone Hearing

From Rai v. Barclays Capital Inc., 2010 U.S. Dist. LEXIS 59739 (S.D.N.Y. June 14, 2010): 1. Evident Partiality of the Arbitrators Section 10(a)(2) of the FAA allows a court to vacate an arbitration award "where there was evident partiality or corruption in the arbitrators, or either of them." In Morelite Construction ...
From Rai v. Barclays Capital Inc., 2010 U.S. Dist. LEXIS 59739 (S.D.N.Y. June 14, 2010): 1. Evident Partiality of the Arbitrators Section 10(a)(2) of the FAA allows a court to vacate an arbitration award “where there was evident partiality or…
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RICO Statute of Limitations — Notice of Injury vs. Fraudulent Concealment — Disregard of Prior Order as Tolling Statute

From Pecot v. S.F. Deputy Sheriff’s Ass’n, 2009 U.S. Dist. LEXIS 21710 (N.D. Cal. Mar. 6, 2009): Civil RICO claims are subject to a four-year statute of limitations. Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 156 (1987). "The limitations period for civil RICO actions begins to run when a plaintiff know ...
From Pecot v. S.F. Deputy Sheriff’s Ass’n, 2009 U.S. Dist. LEXIS 21710 (N.D. Cal. Mar. 6, 2009): Civil RICO claims are subject to a four-year statute of limitations. Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 156…
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Dismissal as a Sanction — Factors — Sixth Circuit

From Fharmacy Records v. Nassar, 2010 U.S. App. LEXIS 11626 (6th Cir. June 7, 2010): We have identified four factors — the "Regional Refuse factors" — that guide our review of a district court's decision to dismiss a party's lawsuit as a sanction: (1) whether the party's [conduct] [was] due to willfulness ...
From Fharmacy Records v. Nassar, 2010 U.S. App. LEXIS 11626 (6th Cir. June 7, 2010): We have identified four factors — the “Regional Refuse factors” — that guide our review of a district court’s decision to dismiss a party’s lawsuit…
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Sanctions: Bad Faith Irrelevant to Rule 11 Liability but Relevant to Type and Quantum of Sanction

From Ameriquest Mortgage Co. v. Nosek, 2010 U.S. App. LEXIS 12068 (1st Cir. June 14, 2010): On January 25, 2008, the bankruptcy court ordered Ameriquest to show cause why sanctions should not be imposed under Federal Rule of Bankruptcy Procedure 9011 [substantively identical to Fed.R.Civ.P. 11] for misrepresenting during the Nosek bankrup ...
From Ameriquest Mortgage Co. v. Nosek, 2010 U.S. App. LEXIS 12068 (1st Cir. June 14, 2010): On January 25, 2008, the bankruptcy court ordered Ameriquest to show cause why sanctions should not be imposed under Federal Rule of Bankruptcy Procedure…
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Inherent Power Sanctions Properly Imposed on Non-Parties Responsible for the Violation but Sanctions May Not Include the Fees Incurred in the (Month-Long) Sanctions Proceeding

Orange Blossom LP v. So. Calif. Sunbelt Developers, Inc., 608 F.3d 456 (9th Cir. 2010): Thirteen entities filed involuntary bankruptcy petitions against IBT International, Inc. (IBT) and Southern California Sunbelt Developers, Inc. (SCSD) under Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 303. The [13] petitioning creditors are *** co ...
Orange Blossom LP v. So. Calif. Sunbelt Developers, Inc., 608 F.3d 456 (9th Cir. 2010): Thirteen entities filed involuntary bankruptcy petitions against IBT International, Inc. (IBT) and Southern California Sunbelt Developers, Inc. (SCSD) under Chapter 11 of the Bankruptcy Code,…
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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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