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

Securities — Bespeaks Caution vs. Duty to Update — 2d Circuit

From Ill. State Board of Inv. v. Authentidate Holdings Corp., 2010 U.S. App. LEXIS 5226 (2d Cir. Mar. 12, 2010) (summary order): The district court found the statement in the September 8 press release nonactionable, in part, because Authentidate noted that there was "no guarantee" that an agreement would be reached. We agree that the sta ...
From Ill. State Board of Inv. v. Authentidate Holdings Corp., 2010 U.S. App. LEXIS 5226 (2d Cir. Mar. 12, 2010) (summary order): The district court found the statement in the September 8 press release nonactionable, in part, because Authentidate noted…
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Legal Malpractice — Continuing Representation Must Relate to the Specific Matter and Is Not Satisfied by Merely a “Continuing Relation”

From MIG, Inc. v. Paul Weiss Rifkin Wharton & Garrison, LLP, 2010 U.S. Dist. LEXIS 29548 (S.D.N.Y. Mar. 29, 2010): New York's statute of limitations for legal malpractice is three years. See N.Y. C.P.L.R. § 214(6). The claim accrues when the malpractice is committed. Shumsky v. Eisenstein, 96 N.Y.2d 164, 166 (2001). Ac ...
From MIG, Inc. v. Paul Weiss Rifkin Wharton & Garrison, LLP, 2010 U.S. Dist. LEXIS 29548 (S.D.N.Y. Mar. 29, 2010): New York’s statute of limitations for legal malpractice is three years. See N.Y. C.P.L.R. § 214(6). The claim accrues when…
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Rule 15(c) Does Not Permit Relation Back of Amendment Adding New Plaintiffs Whose Claims Are Untimely, Except in Cases of Misnomer, of Misdescription, of Change in Capacity in Which Suit Is Brought, to Add Real-Party-in-Interest or in a Class Action

From Asher v. Unarco Material Handling, Inc., 596 F.3d 313 (6th Cir. 2010): The parties agree that the question of whether Rule 15(c) permits relation back of an amendment adding otherwise untimely plaintiffs and their claims to a timely-filed complaint is an issue of first impression for our circuit. Nevertheless, in urging Rule 15(c)'s ...
From Asher v. Unarco Material Handling, Inc., 596 F.3d 313 (6th Cir. 2010): The parties agree that the question of whether Rule 15(c) permits relation back of an amendment adding otherwise untimely plaintiffs and their claims to a timely-filed complaint…
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Rule 50(b) Motion for JMOL and 59(a) Motion for a New Trial — Impact of General Verdict: Is a Single Error Enough to Compel Reversal under Sunkist?

From BP Amoco Chem. Co. v. Flint Hills Resources, LLC, 2010 U.S. Dist. LEXIS 28477 (N.D. Ill. Mar. 25, 2010): BP Amoco seeks relief under both Federal Rule of Civil Procedure 50(b) and Federal Rule of Civil Procedure 59(a). The standard under both rules is difficult to satisfy. A. Judgment As a Matter of Law Pursuant to Rule 5 ...
From BP Amoco Chem. Co. v. Flint Hills Resources, LLC, 2010 U.S. Dist. LEXIS 28477 (N.D. Ill. Mar. 25, 2010): BP Amoco seeks relief under both Federal Rule of Civil Procedure 50(b) and Federal Rule of Civil Procedure 59(a). The…
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Party (as Opposed to Non-Party) May Not Immediately Appeal Civil (as Opposed to Criminal) Contempt Order to Obtain Review of Adverse Attorney-Client Privilege Decision

From United States v. Myers, 593 F.3d 338 (4th Cir. 2010) (procedural posture: Myers withheld documents subject to subpoena; on this appeal she challenges the District Court order directing her (1) to produce any missing items she conceded were not protected by the Fifth Amendment and (2) to give all other missing items to the United States privilege team fo ...
From United States v. Myers, 593 F.3d 338 (4th Cir. 2010) (procedural posture: Myers withheld documents subject to subpoena; on this appeal she challenges the District Court order directing her (1) to produce any missing items she conceded were not…
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Federal Jurisdiction — The Current Status of Grable

From Stern v. Baldwin, 2010 U.S. Dist. LEXIS 27709 (D.N.J. Mar. 24, 2010): This matter comes before the Court on Plaintiff Bernard Stern's motion for remand, pursuant to 28 U.S.C. § 1447(c). *** On June 9, 2009, Plaintiff Bernard Stern, a shareholder of Quest Diagnostics, Inc. ("Quest"), filed a derivative suit against the directo ...
From Stern v. Baldwin, 2010 U.S. Dist. LEXIS 27709 (D.N.J. Mar. 24, 2010): This matter comes before the Court on Plaintiff Bernard Stern’s motion for remand, pursuant to 28 U.S.C. § 1447(c). *** On June 9, 2009, Plaintiff Bernard Stern,…
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Text Message Adequately Authenticated by Sender’s Name as Stored on Cell Phone Atop Message, Sender’s Customary Signature, and Her Testimony That She “Could Have” Sent It

From State v. Thompson, 777 N.W.2d 617 (N.D. Sup. Ct. 2010) (construing North Dakota Rule of Evidence 901(a), which is identical to Federal Rule of Evidence 901(a)) (assault prosecution): At trial, the complainant testified on direct examination about several text messages sent to him on October 31, 2008. He testified he knew the text m ...
From State v. Thompson, 777 N.W.2d 617 (N.D. Sup. Ct. 2010) (construing North Dakota Rule of Evidence 901(a), which is identical to Federal Rule of Evidence 901(a)) (assault prosecution): At trial, the complainant testified on direct examination about several text…
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Electronic Spoliation — Failure to Initiate Litigation Hold in 2003-04 Merely Negligent — Trigger Date for Preservation Duty Different for Individuals Than for Entity Defendant

From Field Day, LLC v. County of Suffolk, 2010 U.S. Dist. LEXIS 28476 (E.D.N.Y. Mar. 25, 2010): Plaintiffs Field Day LLC f/k/a/ New York Music Festival and AEG Live LLC f/k/a/ AEG Concerts LLC *** commenced this action for money damages and injunctive relief against the County of Suffolk and the Suffolk County Department of Health Service ...
From Field Day, LLC v. County of Suffolk, 2010 U.S. Dist. LEXIS 28476 (E.D.N.Y. Mar. 25, 2010): Plaintiffs Field Day LLC f/k/a/ New York Music Festival and AEG Live LLC f/k/a/ AEG Concerts LLC *** commenced this action for money…
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Arbitrator’s Failure to Rule on Recusal Motion Does Not Require Vacatur of Award Where American Arbitration Association Has Considered Motion

From Regnery Publishing, Inc. v. Miniter, 2010 U.S. App. LEXIS 5746 (D.C. Cir. Mar. 17, 2010): Appellant has not shown that the arbitrator's failure to rule on appellant's motion for recusal required vacatur of an arbitration award as set forth in the Federal Arbitration Act, 9 U.S.C. § 10(a), in light of the American Arbitration Associa ...
From Regnery Publishing, Inc. v. Miniter, 2010 U.S. App. LEXIS 5746 (D.C. Cir. Mar. 17, 2010): Appellant has not shown that the arbitrator’s failure to rule on appellant’s motion for recusal required vacatur of an arbitration award as set forth…
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RICO — Limited Partners Lack Standing to Sue for Injuries to Limited Partnership

From Desoto v. Condon, 2010 U.S. App. LEXIS 6093 (9th Cir. Mar. 24, 2010): Tommy Desoto and others who are limited partners of Trago LP, shareholders of Trago International, or creditors of Trago LP (collectively, Desoto) appeal the district court's order dismissing with prejudice their Racketeer Influenced and Corrupt Organizations Act ...
From Desoto v. Condon, 2010 U.S. App. LEXIS 6093 (9th Cir. Mar. 24, 2010): Tommy Desoto and others who are limited partners of Trago LP, shareholders of Trago International, or creditors of Trago LP (collectively, Desoto) appeal the district court’s…
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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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