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

Claim of Fraudulent Inducement to Hold Stock Barred by New York’s Out-of-Pocket Loss Rule

From Starr Foundation v. Am. Int’l Group, Inc., 2010 NY Slip Op 4526, 2010 N.Y. App. Div. LEXIS 4443 (1st Dep’t May 27, 2010): At issue on this appeal is the legal sufficiency under New York law of a claim for fraudulent inducement to continue to hold, rather than sell, a large block of the common stock of defendant American Internati ...
From Starr Foundation v. Am. Int’l Group, Inc., 2010 NY Slip Op 4526, 2010 N.Y. App. Div. LEXIS 4443 (1st Dep’t May 27, 2010): At issue on this appeal is the legal sufficiency under New York law of a claim…
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Negligent Accounting ≠ RICO Violation — Last Minute Cancellation of, and Failure to Attend Deposition One Has Noticed Is Sanctionable under Rule 30(g) — Sanction of Mandatory Continuing Legal Education

From Edmonds v. Seavey, 2010 U.S. App. LEXIS 10898 (2d Cir. May 27, 2010): After more than a year of both formal and informal discovery, appellant has adduced no evidence that would permit a reasonable fact finder to conclude that the defendants have engaged in a pattern of "racketeering activity" within the meaning of the civil RICO st ...
From Edmonds v. Seavey, 2010 U.S. App. LEXIS 10898 (2d Cir. May 27, 2010): After more than a year of both formal and informal discovery, appellant has adduced no evidence that would permit a reasonable fact finder to conclude that…
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Admissibility of Evidence from Non-Party’s Pseudonymous Profile on Social Networking Site

From Griffin v. State, 2010 Md. App. LEXIS 87 (Ct. App. May 27, 2010): I. Did the trial court err in admitting a page printed from a MySpace profile alleged to be that of appellant's girlfriend? *** In the early morning hours of April 24, 2005, Darvell Guest was cornered, unarmed, in the women's bathroom of Ferrari's Bar in ...
From Griffin v. State, 2010 Md. App. LEXIS 87 (Ct. App. May 27, 2010): I. Did the trial court err in admitting a page printed from a MySpace profile alleged to be that of appellant’s girlfriend? *** In the early…
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Motion to Amend Complaint to Withdraw Claims within 21 Days of Rule 11 Motion Precludes Sanctions Based on that Motion Even If New, Frivolous Claims Added — Claims Need Not Be Withdrawn with Prejudice Under Rule 11 — § 1927 Inapplicable to Clients

From Sneller v. City of Bainbridge Island, 606 F.3d 636 (9th Cir. 2010): This case arises from a land use dispute between the Snellers and the City over the Snellers' efforts to develop property which included a wetland. The Snellers brought suit in federal court against the City, several of its employees, and other defendants no longer ...
From Sneller v. City of Bainbridge Island, 606 F.3d 636 (9th Cir. 2010): This case arises from a land use dispute between the Snellers and the City over the Snellers’ efforts to develop property which included a wetland. The Snellers…
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Minnesota Law Does Not Recognize a Cause of Action for Spoliation

From Ansari v. NCS Pearson, Inc., 2009 U.S. Dist. LEXIS 66034 (D. Minn. July 23, 2009): Minnesota does not provide for a substantive civil claim for negligent or intentional spoliation of evidence. See Federated Mut. Ins. Co. v. Litchfield Precision Components, Inc., 456 N.W.2d 434, 439 (Minn. 1990).
From Ansari v. NCS Pearson, Inc., 2009 U.S. Dist. LEXIS 66034 (D. Minn. July 23, 2009): Minnesota does not provide for a substantive civil claim for negligent or intentional spoliation of evidence. See Federated Mut. Ins. Co. v. Litchfield Precision…
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Court May Hear Motion to Vacate Award Even If Action was Dismissed without Prejudice when Arbitration Compelled — Rule 60(b) Governs Motion for Reconsideration Filed after More Than 10 (Now 14) Days — 60(b)(6) Inapt if (b)(1), (2) or (3) Triggered

From Owen-Williams v. BB&T Inv. Servs., 2010 U.S. Dist. LEXIS 51046 (D.D.C. May 24, 2010): By Memorandum Opinion and Order dated July 31, 2006, this Court granted Defendant BB&T Investment Services, Inc.'s ("Defendant" or "BB&T") request to compel arbitration of Plaintiff's breach of contract claims. The parties subsequently proceeded to ...
From Owen-Williams v. BB&T Inv. Servs., 2010 U.S. Dist. LEXIS 51046 (D.D.C. May 24, 2010): By Memorandum Opinion and Order dated July 31, 2006, this Court granted Defendant BB&T Investment Services, Inc.’s (“Defendant” or “BB&T”) request to compel arbitration of…
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Lender’s Recovery under Credit Default Swap Does Not Constitute a Double Recovery Precluding It from Enforcing the Underlying Loan

From Zambrano v. HSBC Bank USA, Inc., 2010 U.S. Dist. LEXIS 51371 (E.D. Va. May 25, 2010): Plaintiff asserts a "double recovery" theory based on an incorrect understanding of credit default swaps, "credit enhancements," and loan securitization. According to Plaintiff's theory, Defendants may have received a credit "payoff" or swap upon ...
From Zambrano v. HSBC Bank USA, Inc., 2010 U.S. Dist. LEXIS 51371 (E.D. Va. May 25, 2010): Plaintiff asserts a “double recovery” theory based on an incorrect understanding of credit default swaps, “credit enhancements,” and loan securitization. According to Plaintiff’s…
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Experts — Rebuttal Report Timely If Submitted within Period Specified by Rule 26(a)(2)(C)(ii) and Pretrial Order Is Silent as to Rebuttal Reports — Caselaw Split

From Hernandez v. Butterball, LLC, 2010 U.S. Dist. LEXIS 50246 (E.D.N.C. May 21, 2010): The issue boils down to whether Rule 26(a)(2)(C)(ii), which allows disclosure of evidence contradicting or rebutting another party's expert testimony within thirty days after the other party's disclosure, applies here as a default rule where the sche ...
From Hernandez v. Butterball, LLC, 2010 U.S. Dist. LEXIS 50246 (E.D.N.C. May 21, 2010): The issue boils down to whether Rule 26(a)(2)(C)(ii), which allows disclosure of evidence contradicting or rebutting another party’s expert testimony within thirty days after the other…
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Spoliation — The Evidentiary Rationale for the Adverse Inference — Impact on Summary Judgment

From Siggelko v. Kohl’s Dep’t Stores, Inc., 2009 U.S. Dist. LEXIS 21223 (E.D.N.Y. Mar. 16, 2009): A party's intentional destruction of evidence relevant to proof of an issue at trial can support an inference that the evidence would have been unfavorable to the party responsible for its destruction. See Kronisch v. United States, < ...
From Siggelko v. Kohl’s Dep’t Stores, Inc., 2009 U.S. Dist. LEXIS 21223 (E.D.N.Y. Mar. 16, 2009): A party’s intentional destruction of evidence relevant to proof of an issue at trial can support an inference that the evidence would have been…
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RICO: Iqbal + Twombly + 9(b) = Dismissal of § 1962(c)-(d) Claims; Deception Mandatory for Mail/Wire Fraud; Allegations of Parallel Conduct Generally Insufficient to Show Conspiracy; 11th Circuit Declines to Decide If Conspiracy Claim Falls

From Am. Dental Ass’n v. Cigna Corp, 2010 U.S. App. LEXIS 9928 (11th Cir. May 14, 2010): Plaintiffs contracted with Defendants to provide dental services to Defendants' members through dental service managed care plans. Plaintiffs *** allege, on behalf of themselves and a putative class of similarly-situated dentists, that Defendants "e ...
From Am. Dental Ass’n v. Cigna Corp, 2010 U.S. App. LEXIS 9928 (11th Cir. May 14, 2010): Plaintiffs contracted with Defendants to provide dental services to Defendants’ members through dental service managed care plans. Plaintiffs *** allege, on behalf of…
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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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