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

Whether Expert Testimony is Correct vs. Whether It is Reliable — Good Quote

From Main Street Am. Group v. Sears, Roebuck & Co., 2010 U.S. Dist. LEXIS 22667 (D. Md. Mar. 11, 2010): This court has "broad discretion in admitting scientific testimony that could later be tested by vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof." *** The proponents of ...
From Main Street Am. Group v. Sears, Roebuck & Co., 2010 U.S. Dist. LEXIS 22667 (D. Md. Mar. 11, 2010): This court has “broad discretion in admitting scientific testimony that could later be tested by vigorous cross-examination, presentation of contrary…
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Legal Malpractice Claim Based on Bad Advice to Enter Stip Not Foreclosed by Earlier Court’s Refusal to Set Aside Stip

From Scartozzi v. Potruch, 2010 NY Slip Op 3102,; 2010 N.Y. App. Div. LEXIS 3068 (2d Dept. April 13, 2010): Contrary to the defendants' contention, the Supreme Court erred in determining that collateral estoppel barred the plaintiff from challenging as legal malpractice the defendant's advice that she waive her right to seek prior counse ...
From Scartozzi v. Potruch, 2010 NY Slip Op 3102,; 2010 N.Y. App. Div. LEXIS 3068 (2d Dept. April 13, 2010): Contrary to the defendants’ contention, the Supreme Court erred in determining that collateral estoppel barred the plaintiff from challenging as…
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Applicability of 28 U.S.C. § 1927 to Pro Se Litigants — Caselaw Split

From McCormick v. Brzezinski, 2010 U.S. Dist. LEXIS 36106 (E.D. Mich. April 13, 2010): Defendant relies on Wages v. Internal Revenue Service, 915 F.2d 1230, 1235-36 (9th Cir. 1989) to support his argument that sanctions under section 1927 apply to pro se litigants. But, by its terms, section 1927 applies to only "attorney[s ...
From McCormick v. Brzezinski, 2010 U.S. Dist. LEXIS 36106 (E.D. Mich. April 13, 2010): Defendant relies on Wages v. Internal Revenue Service, 915 F.2d 1230, 1235-36 (9th Cir. 1989) to support his argument that sanctions under section 1927 apply to…
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Do Lawyers Uninvolved in Trial Enjoy a First Amendment Right to Juror Access for CLE Program? — District Court’s Failure to Exercise Meaningful Discretion = Abuse of Discretion

From Clyma v. Sunoco, Inc., 594 F.3d 777 (10th Cir. 2010): A civil jury rendered a verdict for Plaintiff Clyma and against Defendant Sunoco in the employment discrimination dispute underlying this matter. With cross-appeals pending in this Court, Movant Oklahoma Employment Lawyers Association (OELA) submitted to the district court an "Ap ...
From Clyma v. Sunoco, Inc., 594 F.3d 777 (10th Cir. 2010): A civil jury rendered a verdict for Plaintiff Clyma and against Defendant Sunoco in the employment discrimination dispute underlying this matter. With cross-appeals pending in this Court, Movant Oklahoma…
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Judicial Review of Arbitration Awards — Absent Affirmative Consent, Classwide Arbitration Barred — Ripeness

From Stolt-Nielsen S. A. v. Animalfeeds Int’l Corp., 130 S. Ct. 1758 (2010): [Grant of Certiorari Implicitly Rejects Unarticulated Challenge to Ripeness.] [Footnote 2] Invoking an argument not pressed in or considered by the courts below, the dissent concludes that the question presented is not ripe for our revi ...
From Stolt-Nielsen S. A. v. Animalfeeds Int’l Corp., 130 S. Ct. 1758 (2010): [Grant of Certiorari Implicitly Rejects Unarticulated Challenge to Ripeness.] [Footnote 2] Invoking an argument not pressed in or considered by the courts below, the dissent concludes that…
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No Rule 11 Sanctions for “Incorrect Belief” about the Law, Instead of “Callous Disregard” of It

From Akins-Brakefield v. Philip Envt’l Servs., 2010 U.S. Dist. LEXIS 25062 (S.D. Ill. Mar. 17, 2010): [Defendant] PESC contends that Plaintiff's claims for Assault (Count V), Battery (Count VI), Negligent Supervision (Count VII) and Willful FMLA violations (Count VIII) were, on the face of her Second Amended Complaint, wholly devoid of ...
From Akins-Brakefield v. Philip Envt’l Servs., 2010 U.S. Dist. LEXIS 25062 (S.D. Ill. Mar. 17, 2010): [Defendant] PESC contends that Plaintiff’s claims for Assault (Count V), Battery (Count VI), Negligent Supervision (Count VII) and Willful FMLA violations (Count VIII) were,…
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“Serious Questions” Standard for Preliminary Injunction Survives Supreme Court’s Winter Trilogy — Likelihood of Success Not Mandatory— Second Circuit Standards, with Exceptions

From Citigroup Global Markets, Inc. v. VCG Spec. Opportunities Master Fund Ltd., 598 F.3d 30 (2d Cir. 2010): VCG argues that three recent decisions of the Supreme Court—Munaf v. Geren, 553 U.S. 674, 128 S. Ct. 2207, 171 L. Ed. 2d 1 (2008); Winter [v. Natural Resources Defense Council, Inc. , 129 S. Ct. 365, 172 L. ...
From Citigroup Global Markets, Inc. v. VCG Spec. Opportunities Master Fund Ltd., 598 F.3d 30 (2d Cir. 2010): VCG argues that three recent decisions of the Supreme Court—Munaf v. Geren, 553 U.S. 674, 128 S. Ct. 2207, 171 L. Ed.…
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RICO — Dilution of Minority Shareholders through Extra Compensation to Majority = Derivative, Not Direct, Injury; Abusive Litigation Tactics ≠ Extortion; PSLRA Bars Claim that Purpose of Squeeze-Out was to Bar Minority from Follow-on Merger

From Bixler v. Foster, 596 F.3d 751 (10th Cir. 2010): According to the complaint, defendants Duncan, Sapper, and Malone were directors and majority shareholders of METCO, a New Mexico uranium mining company. ***[T]hey negotiated a trade of METCO's uranium mining claims to subsidiaries of defendant Uranium King, Ltd. (UKL), an Australian c ...
From Bixler v. Foster, 596 F.3d 751 (10th Cir. 2010): According to the complaint, defendants Duncan, Sapper, and Malone were directors and majority shareholders of METCO, a New Mexico uranium mining company. ***[T]hey negotiated a trade of METCO’s uranium mining…
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Rule 41(b) Does Not Preclude Inherent Power Sanctions for Failure to Prosecute

From Scott v. Knight, 2010 U.S. Dist. LEXIS 25610 (S.D. Ala. Feb. 22, 2010): Due to Plaintiff's failure to comply with the Court's Order and to prosecute this action, it appears that Plaintiff has abandoned his action thereby subjecting it to dismissal pursuant to the Court's inherent powers. Link v. Wabash R.R., 370 U.S. 626, 63 ...
From Scott v. Knight, 2010 U.S. Dist. LEXIS 25610 (S.D. Ala. Feb. 22, 2010): Due to Plaintiff’s failure to comply with the Court’s Order and to prosecute this action, it appears that Plaintiff has abandoned his action thereby subjecting it…
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When Future Injury Confers Standing — Ninth Circuit

From Mory v. City of Chula Vista, 2010 U.S. App. LEXIS 5261 (9th Cir. Mar. 1, 2010): Mory contends that part of her injury stems from her fear that she will be disciplined for future pageant participation, or that her alleged insubordination in participating in the 2006 pageant will be used against her in future promotions, transfers, sal ...
From Mory v. City of Chula Vista, 2010 U.S. App. LEXIS 5261 (9th Cir. Mar. 1, 2010): Mory contends that part of her injury stems from her fear that she will be disciplined for future pageant participation, or that her…
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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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