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

Inadequate Authentication of Government Website Evidence

From Phipps v. Stellar Recovery, Inc., 2010 U.S. Dist. LEXIS 33029 (S.D. Ohio April 5, 2010): Plaintiff [argues]: Since Defendant admits to threatening Plaintiff with a lawsuit, and garnishment but has not filed any legal action against Plaintiff, it is evident that Defendant never intended to take such action and mad ...
From Phipps v. Stellar Recovery, Inc., 2010 U.S. Dist. LEXIS 33029 (S.D. Ohio April 5, 2010): Plaintiff [argues]: Since Defendant admits to threatening Plaintiff with a lawsuit, and garnishment but has not filed any legal action against Plaintiff, it is…
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United Nations and U.N. Officials Absolutely Immune from Suit — What Is a Self-Executing Treaty?

From Brzak v. United Nations, 597 F.3d 107 (2d Cir. 2010): [T]he United States has ratified the CPIUN [the Convention on Privileges and Immunities of the United Nations, Feb. 13, 1946]*** The parties do not dispute that the CPIUN is binding on the United States as a matter of international law. However, they disagree about ...
From Brzak v. United Nations, 597 F.3d 107 (2d Cir. 2010): [T]he United States has ratified the CPIUN [the Convention on Privileges and Immunities of the United Nations, Feb. 13, 1946]*** The parties do not dispute that the CPIUN is…
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Standard and Method of Review of Class Certification Decisions

From Yokoyama v. Midland Nat’l Life Ins. Co., 594 F.3d 1087 (9th Cir. 2010): [W]hen a district court's class action certification is on appeal, we say that the overall standard of review is for abuse of discretion. *** In addition, when any particular underlying Rule 23 determination involving a discretionary determination is appealed, ...
From Yokoyama v. Midland Nat’l Life Ins. Co., 594 F.3d 1087 (9th Cir. 2010): [W]hen a district court’s class action certification is on appeal, we say that the overall standard of review is for abuse of discretion. *** In addition,…
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Enrolling and Enforcing a Foreign Judgment under Uniform Enforcement of Foreign Judgments Act = Transacting Business in the State and Subjects Filer to Personal Jurisdiction

From St. Paul Mercury Ins. Co. v. Cueto, 2010 U.S. Dist. LEXIS 20020 (D. Md. Mar. 5, 2010): The Maryland courts have not yet addressed the question of whether enrollment of foreign judgments constitutes purposeful availment of state law and satisfies the "[t]ransacts any business" requirement of the state's long-arm statute. Even outsi ...
From St. Paul Mercury Ins. Co. v. Cueto, 2010 U.S. Dist. LEXIS 20020 (D. Md. Mar. 5, 2010): The Maryland courts have not yet addressed the question of whether enrollment of foreign judgments constitutes purposeful availment of state law and…
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Magistrate Judge’s Denial of Motion to Stay Arbitration Is Non-Dispositive and Reviewed under Clearly Erroneous / Contrary to Law Standard — Issue of First Impression

From Powershare, Inc. v. Syntel, Inc., 597 F.3d 10 (1st Cir. 2010): The Federal Magistrates Act confers authority upon district judges to designate magistrate judges to hear pretrial motions. 28 U.S.C. § 636(b)(1). Magistrate judges serve as aides to, and under the supervision of, district judges; but magistrate judges are not themselve ...
From Powershare, Inc. v. Syntel, Inc., 597 F.3d 10 (1st Cir. 2010): The Federal Magistrates Act confers authority upon district judges to designate magistrate judges to hear pretrial motions. 28 U.S.C. § 636(b)(1). Magistrate judges serve as aides to, and…
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Res Judicata Effect of Federal Judgment Rendered in Diversity Case Determined by State Law — New York and Federal Law Substantially the Same

From Rafter v. Liddle, 2010 U.S. Dist. LEXIS 33952 (S.D.N.Y. Mar. 30, 2010): As an initial matter, the Court will examine whether New York or federal preclusion law (also referred to as res judicata) applies. In the Previous Action, the district court exercised diversity jurisdiction. *** Where a decision "claimed to have preclusive e ...
From Rafter v. Liddle, 2010 U.S. Dist. LEXIS 33952 (S.D.N.Y. Mar. 30, 2010): As an initial matter, the Court will examine whether New York or federal preclusion law (also referred to as res judicata) applies. In the Previous Action, the…
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Standing Challenge Decided under Rule 12(b)(1) as an Aspect of Subject Matter Jurisdiction — Personal Jurisdiction Decided under Rule 12(b)(2) — Determining Personal Jurisdiction in a Federal Question Case

From Cascade Fund LLLP v. Absolute Capital Mgmt. Holdings Ltd., 2010 U.S. Dist. LEXIS 32255 (D. Colo. Mar. 31, 2010): The issue of standing to bring a claim is considered a component of subject-matter jurisdiction and analyzed under Fed.R.Civ.P. 12(b)(1). The party asserting the existence of subject matter jurisdiction bears the burden o ...
From Cascade Fund LLLP v. Absolute Capital Mgmt. Holdings Ltd., 2010 U.S. Dist. LEXIS 32255 (D. Colo. Mar. 31, 2010): The issue of standing to bring a claim is considered a component of subject-matter jurisdiction and analyzed under Fed.R.Civ.P. 12(b)(1).…
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Pro Hac Vice Status Denied on Advocate-Witness and Conflict of Interest Grounds Where One Former Class Counsel Seeks to Sue Others for Malpractice in Earlier Class Action

From Decker v. Nagel Rice LLC, 2010 U.S. Dist. LEXIS 26530 (S.D.N.Y. Mar. 22, 2010): On November 2000, a ski train fire in Kaprun, Austria killed 155 individuals and left twelve survivors. In addition to a mediation that took place in Austria, American and foreign survivors and/or relatives of those who died in the fire brought multiple ...
From Decker v. Nagel Rice LLC, 2010 U.S. Dist. LEXIS 26530 (S.D.N.Y. Mar. 22, 2010): On November 2000, a ski train fire in Kaprun, Austria killed 155 individuals and left twelve survivors. In addition to a mediation that took place…
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Sanctions — Position Not Frivolous Where Supported by One, Out-of-Circuit, Lower Court, Minority-View Opinion and There Is No Binding Supreme Court Precedent

From Burns v. George Basilikas Trust, 2010 U.S. App. LEXIS 6290 (D.C. Cir. Mar. 26, 2010) (issue of statutory construction): In awarding sanctions, the bankruptcy court relied on the proposition that "§ 109(h)(3)(A), when read in the context of § 109(h) as a whole, cannot in any fashion be read to support" an interpretation that a pe ...
From Burns v. George Basilikas Trust, 2010 U.S. App. LEXIS 6290 (D.C. Cir. Mar. 26, 2010) (issue of statutory construction): In awarding sanctions, the bankruptcy court relied on the proposition that “§ 109(h)(3)(A), when read in the context of §…
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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-Up 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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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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