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

Summaries & Fed.R.Evid. 1006 — As Long as Underlying Documents Are Made Available to Opponent, Database Containing Them Need Not Be

From United States v. Lewis, 2010 U.S. App. LEXIS 2897 (10th Cir. Feb. 12, 2010): Using the bank records, the government created a computer database detailing the activity in some 170 accounts. The database of checks, wire transfers, deposits, and the like contained over 15,500 items. By making queries of the database, government agents ...
From United States v. Lewis, 2010 U.S. App. LEXIS 2897 (10th Cir. Feb. 12, 2010): Using the bank records, the government created a computer database detailing the activity in some 170 accounts. The database of checks, wire transfers, deposits, and…
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Witness’s Review of Privileged Notes of Conversations Before Deposition Waived Privilege — Production Ordered Under Fed.R.Evid. 612(2)

From Thomas v. Euro RSCG Life, 2010 U.S. Dist. LEXIS 14305 (S.D.N.Y. Feb. 18, 2010): At plaintiff's deposition on January 20, 2010, plaintiff testified that she had looked at notes in preparation for her deposition that recounted the dates and substance of conversations plaintiff had had with former in-house counsel for defendant Euro RSC ...
From Thomas v. Euro RSCG Life, 2010 U.S. Dist. LEXIS 14305 (S.D.N.Y. Feb. 18, 2010): At plaintiff’s deposition on January 20, 2010, plaintiff testified that she had looked at notes in preparation for her deposition that recounted the dates and…
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12(b)(6) Motions — Limitations Defense Properly Considered on Dismissal Motion — Documents the Court May Consider

From Alford v. Wachovia Bank/World Sav. Bank, 2010 U.S. Dist. LEXIS 14060 (E.D. Cal. Jan. 26, 2010): *** [A] limitations defense may be raised by a F.R.Civ.P. 12(b)(6) motion to dismiss. Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980); see Avco Corp. v. Precision Air Parts, Inc., 676 F.2d 494, 495 (11th Cir. ...
From Alford v. Wachovia Bank/World Sav. Bank, 2010 U.S. Dist. LEXIS 14060 (E.D. Cal. Jan. 26, 2010): *** [A] limitations defense may be raised by a F.R.Civ.P. 12(b)(6) motion to dismiss. Jablon v. Dean Witter & Co., 614 F.2d 677,…
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Denial of Sanctions Affirmed Where Party “Substantially Complied” with Discovery Orders

From Guimaraes v. NORS, 2010 U.S. App. LEXIS 2953 (11th Cir. Feb. 16, 2010): Under Rule 16(f), a court may impose sanctions if a party or its attorney violates a scheduling or other pretrial order, including a discovery order. Fed.R.Civ.P. 16(f)(1)(C). We have upheld the denial of sanctions where the non-moving party had not timely p ...
From Guimaraes v. NORS, 2010 U.S. App. LEXIS 2953 (11th Cir. Feb. 16, 2010): Under Rule 16(f), a court may impose sanctions if a party or its attorney violates a scheduling or other pretrial order, including a discovery order. Fed.R.Civ.P.…
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Measuring Veracity for Securities Fraud Purposes

From Operating Local 649 Annuity Trust fund v. Smith Barney Fund Mgmt., LLC, 2010 U.S. App. LEXIS 2954 (2d Cir. Feb. 16, 2010): The veracity of a statement or omission is measured not by its literal truth, but by its ability to accurately inform rather than mislead prospective buyers. Cf. Greenapple v. Detroit Edison Co., 6 ...
From Operating Local 649 Annuity Trust fund v. Smith Barney Fund Mgmt., LLC, 2010 U.S. App. LEXIS 2954 (2d Cir. Feb. 16, 2010): The veracity of a statement or omission is measured not by its literal truth, but by its…
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SEC vs. Private 10b-5 Actions — Differences in Elements — Does the PSLRA Inferentially Demonstrate That Recklessness Is Enough?

From Gebhart v. SEC, 2010 U.S. App. LEXIS 3043 (9th Cir. Feb. 17, 2010): [Footnote] 8 The elements of a section 10(b) or Rule 10b-5 claim vary depending on the identities of the parties and the nature of the relief sought. In a private securities fraud action, the plaintiff generally must prove five elements: (1) a ...
From Gebhart v. SEC, 2010 U.S. App. LEXIS 3043 (9th Cir. Feb. 17, 2010): [Footnote] 8 The elements of a section 10(b) or Rule 10b-5 claim vary depending on the identities of the parties and the nature of the relief…
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Tripartite Arbitration Panel’s Ex Parte Session with Expert Did Not Violate Federal Arbitration Act or Vitiate Award — Test Is Fundamental Fairness — Prejudice Required for Violation of § 10(a)(3) of FAA

From U.S. Life Ins. Co. v. Superior Nat’l Ins. Co., 591 F.3d 1167 (9th Cir. 2010): We are asked to determine whether an arbitration panel violated the Federal Arbitration Act (FAA), 9 U.S.C. §§ 2-16. The process employed by the arbitration panel, which included an ex parte meeting with panel-retained workers' compensation experts, wa ...
From U.S. Life Ins. Co. v. Superior Nat’l Ins. Co., 591 F.3d 1167 (9th Cir. 2010): We are asked to determine whether an arbitration panel violated the Federal Arbitration Act (FAA), 9 U.S.C. §§ 2-16. The process employed by the…
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RICO § 1962(a) and (b) Requirements

From Carmona v. Spanish Broad. Sys., 2009 U.S. Dist. LEXIS 26479 (S.D.N.Y. Mar. 30, 2009): To succeed under 1962(a), the alleged use or investment injury must be "distinct from the injuries resulting from predicate acts" themselves. Conclusory allegations that defendants used or invested income received from plaintiffs are insufficient ...
From Carmona v. Spanish Broad. Sys., 2009 U.S. Dist. LEXIS 26479 (S.D.N.Y. Mar. 30, 2009): To succeed under 1962(a), the alleged use or investment injury must be “distinct from the injuries resulting from predicate acts” themselves. Conclusory allegations that defendants…
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Motions for Reconsideration under Rule 59(e) — Standards — Third Circuit

From Peng v. Gabay, 2009 U.S. Dist. LEXIS 121004 (D.N.J. Dec. 29, 2009): Motion for Reconsideration A motion to reconsider, pursuant to FED. R. CIV. P. 59(e) and L. CIV. R. 7.1(i), is "an extremely limited procedural vehicle," and requests pursuant to these rules are to be granted "sparingly." P. Schoenfeld Asset Mgmt ...
From Peng v. Gabay, 2009 U.S. Dist. LEXIS 121004 (D.N.J. Dec. 29, 2009): Motion for Reconsideration A motion to reconsider, pursuant to FED. R. CIV. P. 59(e) and L. CIV. R. 7.1(i), is “an extremely limited procedural vehicle,” and requests…
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Sanctions — PSLRA Mandatory Rule 11 Review Triggered by Summary Judgment on Federal Securities Claims Even If Pendent State Law Claims Dismissed without Prejudice

From Libaire v. Kaplan, 2010 U.S. Dist. LEXIS 4640 (E.D.N.Y. Jan. 21, 2010): Under the PSLRA, "upon final adjudication of the action" a court is required to make specific findings regarding compliance with each requirement of Rule 11(b). See 15 U.S.C. § 78u-4(c)(1). Relying upon Unite Here v. Cintas Corp., 500 F. Supp. 2 ...
From Libaire v. Kaplan, 2010 U.S. Dist. LEXIS 4640 (E.D.N.Y. Jan. 21, 2010): Under the PSLRA, “upon final adjudication of the action” a court is required to make specific findings regarding compliance with each requirement of Rule 11(b). See 15…
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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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