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

“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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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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Recent Posts

(1) RICO Pattern: Open-Ended Continuity — The Vendetta Exception — Jury Could Reasonably Infer That Scheme Directed at One Person, With Goal of Destroying His Current and Future Business Prospects, Presented A Threat of Continued Racketeering Activity Extending Indefinitely into the Future — Lawsuit’s “Fortuitous Interruption” of Scheme ≠ Lack of Threat of Continuing Racketeering Activity — Acts of Concealment Used to Perpetuate Violations — Multiple Schemes Not Required — Jury Could Judge Defendant’s Credibility in Assessing Threat of Continuing Criminal Activity — (2) RICO Conspiracy — Two Methods of Proof: Agreement to Overall Objective Or to Commit Predicate Acts — Agreement Can Be Inferred from Conduct — Conspirator Needn’t Know All Details, Have Contact with Other Conspirators Or Participate in Every Stage

Experts: “Normally, Courts Are Loath to Outright Dismiss An Expert” (Good Quote) — Experts Are Unhelpful If They Misstate the Law [Note Premise That Testimony on Law Not Precluded Outright] — Rule 37 Sanctions Unwarranted for Unjustifiable Failure to Produce Relevant Document Already in Requester’s Possession

FRAP 38 Sanctions: (1) Pressing Objectively Frivolous Arguments, Multiple Misstatements at Oral Argument and Failure to Address What District Judge Said Warrant Award against Appellants’ Counsel (Only) — (2) “General Award” of $5,000 Warranted Where Appellee Failed to Sufficiently Document Its Fees and Expenses [Goodyear v. Haegar Issue]]

RICO: Capital Call Investment Process Increasing Equity of Those Responding to Call at Expense of Those Not Responding ≠ Collection of An Unlawful Debt

RICO [And Constitutional] Standing: Concrete Injury Requirement Not Satisfied by Alleged Intangible Injuries of Intrusion Upon Seclusion, Confusion And Emotional Distress, Public Disclosure of Private Facts, Deterred Speech On Nondefamatory Matters, Violation Of First Amendment Rights, And Compulsion

Rule 37(b) Sanctions: Striking of Answer, Default Judgment, Civil Contempt and Piercing Corporate Veil for Deliberate Disregard of Multiple Orders to Produce — Finding of Deliberate Disregard of Court Order Is Factual, Triggering Clear Error Review — Discretion Narrows When Default Sanction Involved — Fourth Circuit Factors for Rule 37 Default Sanction Are Different Than Those for Inherent Power Dismissal Sanction — Continued Defiance of Court Orders And Millions in Unpaid Judgments And Tax Liens Render Lesser Sanctions Futile

RICO: No Causation for Company Harmed by Governmental Customers Shunning It After Employee Publishes Book Admitting He Bribed Governmental Officials — Harm Too Indirect, Not from Bribery (Predicate Act) But from Customers’ Decisions to Shun and Publication of Book (Both Lawful) — Customers Injured by Bribery of Their Officials Are More Direct Plaintiffs

FRAP 38 Sanctions for Frivolous Opposition to Arbitration

Extrinsic Fraud Exception to Rooker-Feldman — Where Defendants’ Perjury, False Evidence, Flawed Legal Arguments Prevented Plaintiffs from Presenting Their Claim in State Court

Federal Jurisdiction: Party Can Waive Subject Matter Jurisdiction — While Federal Courts Must Ensure They Do Not Lack Subject Matter Jurisdiction, There Is No Duty to Find and Exercise It

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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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