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

Standards for Setting Aside a Jury Verdict in New York State Court under CPLR 4404(a)

From Christ v Law Offices of Levine & Grossman, 2010 NY Slip Op 3056, 2010 N.Y. App. Div. LEXIS 3024 (2d Dept. April 13, 2010): To be awarded judgment as a matter of law pursuant to CPLR 4404(a), a defendant has the burden of establishing that there is no rational process by which the jury could find for the plaintiff against the moving d ...
From Christ v Law Offices of Levine & Grossman, 2010 NY Slip Op 3056, 2010 N.Y. App. Div. LEXIS 3024 (2d Dept. April 13, 2010): To be awarded judgment as a matter of law pursuant to CPLR 4404(a), a defendant…
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Tolling of Limitations Periods for State Law Claims under 28 U.S.C. § 1367(d) — Caselaw Split — Application to Absent Class Members

From In re Vertrue Mktg. & Sales Pracs. Litig., 2010 U.S. Dist. LEXIS 38582 (N.D. Ohio April 16, 2010): 2. Tolling under 28 U.S.C. § 1367(d) Unlike the judicial tolling doctrine espoused in American Pipe, 28 U.S.C. § 1367 provides for statutory tolling for certain claims. That provision is directed at a federal court's ...
From In re Vertrue Mktg. & Sales Pracs. Litig., 2010 U.S. Dist. LEXIS 38582 (N.D. Ohio April 16, 2010): 2. Tolling under 28 U.S.C. § 1367(d) Unlike the judicial tolling doctrine espoused in American Pipe, 28 U.S.C. § 1367 provides…
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American Pipe and Successive Class Actions — A Plaintiff who has Benefitted from American Pipe Tolling May Commence a Second Class Action when Class Issues Not Definitively Ruled on in First Action

From In re Vertrue Mktg. & Sales Pracs. Litig., 2010 U.S. Dist. LEXIS 38582 (N.D. Ohio April 16, 2010): Subsequent to American Pipe and Crown, Cork & Seal, the Sixth Circuit addressed whether an unnamed plaintiff who benefits from American Pipe tolling may assert claims on behalf of a class. See, Andrews v. Orr, < ...
From In re Vertrue Mktg. & Sales Pracs. Litig., 2010 U.S. Dist. LEXIS 38582 (N.D. Ohio April 16, 2010): Subsequent to American Pipe and Crown, Cork & Seal, the Sixth Circuit addressed whether an unnamed plaintiff who benefits from American…
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Standards for Circuit-Level Review of Magistrate Judge’s Report & Recommendation Not Objected to in District Court — Interests of Justice, Substantial Merit, Plain Error

From Kaboggozamusoke v. Rye Town Hilton Hotel, 2010 U.S. App. LEXIS 8094 (2d Cir. April 6, 2010): The magistrate's report and recommendation explicitly states that the parties were afforded ten days to file written objections to the recommended disposition and that the failure to file timely objections would constitute a waiver of those ...
From Kaboggozamusoke v. Rye Town Hilton Hotel, 2010 U.S. App. LEXIS 8094 (2d Cir. April 6, 2010): The magistrate’s report and recommendation explicitly states that the parties were afforded ten days to file written objections to the recommended disposition and…
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Mandamus Jurisdiction to Review Denial of Privilege Assertion Post-Mohawk

On December 11, 2009, three days after the Supreme Court’s decision in Mohawk Indus. v. Carpenter, 558 U.S. ___ (Dec. 8, 2009), the Ninth Circuit granted mandamus review of an order denying assertion of a First Amendment privilege against discovery, in Perry v. Schwarzenegger, 591 F.3d 1147, 1159 (9th Cir. 2009). On remand, applying the standards articulat ...
On December 11, 2009, three days after the Supreme Court’s decision in Mohawk Indus. v. Carpenter, 558 U.S. ___ (Dec. 8, 2009), the Ninth Circuit granted mandamus review of an order denying assertion of a First Amendment privilege against discovery,…
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Factors Determining whether the SEC Is Entitled to Injunctive Relief against Future Violations in a Civil Enforcement Action

From SEC v. Curshen, 2010 U.S. App. LEXIS 7555 (10th Cir. April 13, 2010): An injunction based on the violation of securities laws is appropriate if the SEC demonstrates a reasonable and substantial likelihood that Mr. Curshen, if not enjoined, will violate securities laws in the future. *** Determination of the likelihood of future vio ...
From SEC v. Curshen, 2010 U.S. App. LEXIS 7555 (10th Cir. April 13, 2010): An injunction based on the violation of securities laws is appropriate if the SEC demonstrates a reasonable and substantial likelihood that Mr. Curshen, if not enjoined,…
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Right to Judicial Proceeding May Constitute “Property” for RICO Injury Purposes

From Avalos v. Baca, 596 F.3d 583 (9th Cir. 2010): [I]n order to state a RICO claim, a plaintiff must show harm to a specific business or property interest. Diaz, 420 F.3d at 900 (holding that "[w]ithout a harm to a specific business or property interest . . . there is no injury to business or property within the meaning of RICO") ...
From Avalos v. Baca, 596 F.3d 583 (9th Cir. 2010): [I]n order to state a RICO claim, a plaintiff must show harm to a specific business or property interest. Diaz, 420 F.3d at 900 (holding that “[w]ithout a harm to…
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Monetary Sanctions for Failure to Prepare 30(b)(6) Witness Properly

From Cherrington Asia Ltd. v. A&L Underground, Inc., 263 F.R.D. 653 (D. Kan. 2010): One of the seminal cases regarding discovery sanctions in this district is Starlight International, Inc. v. Herlihy, 186 F.R.D. 626 (D. Kan. 1999), and 190 F.R.D. 587 (D. Kan. 1999).*** ...Starlight stands for the proposition that producin ...
From Cherrington Asia Ltd. v. A&L Underground, Inc., 263 F.R.D. 653 (D. Kan. 2010): One of the seminal cases regarding discovery sanctions in this district is Starlight International, Inc. v. Herlihy, 186 F.R.D. 626 (D. Kan. 1999), and 190 F.R.D.…
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Duty to Allow Insurer to Inspect Equipment Giving Rise to Claim ≠ Contractual Duty to Preserve Equipment as a Condition of Making Claim — Repair Shop’s Disposal of Broken Part Before Anyone’s Awareness of Claim ≠ Spoliation

From Green Meadow Bean Co. v. Nationwide Agribusiness Ins. Co., 2010 U.S. Dist. LEXIS 34838 (D. Minn. April 8, 2010): *** Nationwide argues Green Meadow failed to comply with the policy conditions by failing to keep the broken contactor. The policy provides, in relevant part, that "[a]s often as we [Nationwide] reasonably require," the i ...
From Green Meadow Bean Co. v. Nationwide Agribusiness Ins. Co., 2010 U.S. Dist. LEXIS 34838 (D. Minn. April 8, 2010): *** Nationwide argues Green Meadow failed to comply with the policy conditions by failing to keep the broken contactor. The…
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Attorney-Client Privilege and Email

From Rorar v State & Fed. Commc’ns, Inc., 2010 U.S. Dist. LEXIS 36121 (N.D. Ohio April 13, 2010): Attorney-Client Privilege As Applied to the E-mail Communications E-mails add complexity to the already difficult analysis of the application of the attorney-client privilege. See Thompson v. Chertoff, No. 3:06-CV- ...
From Rorar v State & Fed. Commc’ns, Inc., 2010 U.S. Dist. LEXIS 36121 (N.D. Ohio April 13, 2010): Attorney-Client Privilege As Applied to the E-mail Communications E-mails add complexity to the already difficult analysis of the application of the attorney-client…
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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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