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

Non-Self-Executing Treaty Does Not Support a Claim Under the Alien Tort Claims Act

From Veiga v. World Meteorological Org., 2010 U.S. App. LEXIS 4440 (2d Cir. Mar. 3, 2010): Maria Do Rosario Veiga appeals from the judgment of the United States District Court for the Southern District of New York (Marrero, J.) dismissing her claims for lack of subject-matter jurisdiction. Rosario Veiga brought suit against the World Mete ...
From Veiga v. World Meteorological Org., 2010 U.S. App. LEXIS 4440 (2d Cir. Mar. 3, 2010): Maria Do Rosario Veiga appeals from the judgment of the United States District Court for the Southern District of New York (Marrero, J.) dismissing…
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Recurring Misapplications of RICO

From Meier v. Musburger, 588 F. Supp. 2d 883 (N.D. Ill. 2008): Congress passed RICO in an effort to combat organized, long-term criminal activity. H.J. Inc. v. Northwestern Bell Telephone Co. , 492 U.S. 229, 242, 109 S. Ct. 2893, 106 L. Ed. 2d 195 (1989); Midwest Grinding Co., Inc. v. Spitz, 976 F.2d 1016, 1019 (7th Cir. 1 ...
From Meier v. Musburger, 588 F. Supp. 2d 883 (N.D. Ill. 2008): Congress passed RICO in an effort to combat organized, long-term criminal activity. H.J. Inc. v. Northwestern Bell Telephone Co. , 492 U.S. 229, 242, 109 S. Ct. 2893,…
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Spoliation — Deeming Facts Admitted in Addition to Adverse Inference and Fees

Chevron USA, Inc. v. M & M Petroleum Servs., Inc., 2009 U.S. Dist. LEXIS 68829 (C.D. Cal. Aug. 6, 2009): (a) The Court deems established —- and draws an inference adverse to M&M and concludes that the documents spoliated by M&M support Chevron's allegations of the following facts: (i) the Secret Books (Ex 90; 111-113 and 133) are ...
Chevron USA, Inc. v. M & M Petroleum Servs., Inc., 2009 U.S. Dist. LEXIS 68829 (C.D. Cal. Aug. 6, 2009): (a) The Court deems established —- and draws an inference adverse to M&M and concludes that the documents spoliated by…
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Sanctions — The Relationship Between 35 U.S.C. § 285 and the Inherent Power of the Court

From Kellogg v. Nike, Inc., 2010 U.S. Dist. LEXIS 8576 (D. Neb. Jan. 20, 2010): The purpose of 35 U.S.C. § 285 is to compensate the prevailing party for its monetary outlays in the prosecution or defense of the suit and those fees include the "sums that the prevailing party incurs in the preparation for and performance of legal services ...
From Kellogg v. Nike, Inc., 2010 U.S. Dist. LEXIS 8576 (D. Neb. Jan. 20, 2010): The purpose of 35 U.S.C. § 285 is to compensate the prevailing party for its monetary outlays in the prosecution or defense of the suit…
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RICO Statute of Limitations — Notice of Injury vs. Fraudulent Concealment — Disregard of Prior Order as Tolling Statute

From Pecot v. S.F. Deputy Sheriff’s Ass’n, 2009 U.S. Dist. LEXIS 21710 (N.D. Cal. Mar. 6, 2009): Civil RICO claims are subject to a four-year statute of limitations. Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 156 (1987). "The limitations period for civil RICO actions begins to run when a plaintiff know ...
From Pecot v. S.F. Deputy Sheriff’s Ass’n, 2009 U.S. Dist. LEXIS 21710 (N.D. Cal. Mar. 6, 2009): Civil RICO claims are subject to a four-year statute of limitations. Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 156…
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Court of Appeals Declines, and May Be Unable, to Rule on a Rule 59 Motion for a New Trial Based on the Weight of the Evidence When the Trial Court Hasn’t — “Clear” Abuse of Discretion

From Kode v. Carlson, 2010 U.S. App. LEXIS 3936 (9th Cir. Feb. 25, 2010): Whether we may rule on the merits of a Rule 59 motion for a new trial based on the weight of the evidence where the district court has not yet done so because it found the motion waived appears to present an issue of first impression in this court. Assuming, withou ...
From Kode v. Carlson, 2010 U.S. App. LEXIS 3936 (9th Cir. Feb. 25, 2010): Whether we may rule on the merits of a Rule 59 motion for a new trial based on the weight of the evidence where the district…
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Party Accepting a Rule 68 Offer of Judgment Is a Prevailing Party for Purposes of Recovering Statutory Attorneys’ Fees

From Walsh v. Boston Univ., 661 F. Supp. 2d 91 (D. Mass. 2009): The motion raises an issue of first impression in this circuit regarding whether plaintiff, who obtained a Rule 68, Fed. R. Civ. P. ("Rule 68"), judgment in the amount of $15,000 in his favor, is a "prevailing party" within the meaning of the American Disabilities Act, 42 U.S. ...
From Walsh v. Boston Univ., 661 F. Supp. 2d 91 (D. Mass. 2009): The motion raises an issue of first impression in this circuit regarding whether plaintiff, who obtained a Rule 68, Fed. R. Civ. P. (“Rule 68”), judgment in…
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No Tort Cause of Action for First-Part Spoliation in Vermont — Erie Prognosis

From Naylor v. Rotech Healthcare, Inc., 2009 U.S. Dist. LEXIS 120142 (D. Vt. Dec. 23, 2009): The main issue is whether or not spoliation of evidence constitutes an independent cause of action. Federal courts look to state law to define the substantive claims in diversity cases such as this one. *** States are split on whether spoliation ...
From Naylor v. Rotech Healthcare, Inc., 2009 U.S. Dist. LEXIS 120142 (D. Vt. Dec. 23, 2009): The main issue is whether or not spoliation of evidence constitutes an independent cause of action. Federal courts look to state law to define…
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Extraterritorial Application of U.S. Securities Laws — Conduct Test in Second Circuit — Rule 12(b)(1) Standards

From Terra Secs. v. Citigroup, Inc., 2010 U.S. Dist. LEXIS 14378 (S.D.N.Y. Feb. 16, 2010): The inquiry on a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) concerns whether the district court has the statutory or constitutional power to adjudicate the case. See Makarova, 201 F.3d at 113. "[J]urisdict ...
From Terra Secs. v. Citigroup, Inc., 2010 U.S. Dist. LEXIS 14378 (S.D.N.Y. Feb. 16, 2010): The inquiry on a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) concerns whether the district court has the statutory or…
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Clergy-Communicant Privilege Not Waived by Presence of Third Parties

From WebXchange Inc. v. Dell Inc., 2010 U.S. Dist. LEXIS 12954 (D. Del. Feb. 16, 2010): The clergy-communicant privilege "protect[s] communications made (1) to a clergyperson (2) in his or her spiritual capacity (3) with a reasonable expectation of confidentiality." In re Grand Jury Investigation, 918 F.2d 374, 384 (1990). "The p ...
From WebXchange Inc. v. Dell Inc., 2010 U.S. Dist. LEXIS 12954 (D. Del. Feb. 16, 2010): The clergy-communicant privilege “protect[s] communications made (1) to a clergyperson (2) in his or her spiritual capacity (3) with a reasonable expectation of confidentiality.”…
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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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