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

Inherent Power, But Not §1927, Sanctions Appropriate for Pre-Litigation Misconduct — §1927 Sanctions Imposable on Pro Se Lawyer Representing Self

From Carr v. Tillery, 2010 U.S. App. LEXIS 685 (7th Cir. Jan. 12, 2010): Turning now to the cross-appeal, we think the defendants' motion for sanctions should not have been denied. *** The motion complained that [plaintiff] Carr is harassing the defendants with repetitive litigation, including a suit — this suit — that borders ...
From Carr v. Tillery, 2010 U.S. App. LEXIS 685 (7th Cir. Jan. 12, 2010): Turning now to the cross-appeal, we think the defendants’ motion for sanctions should not have been denied. *** The motion complained that [plaintiff] Carr is harassing…
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RICO — Even Boyle’s Generous Definition of “Enterprise” Unsatisfied

From Rao v. BP Prods. N. Am., Inc., 589 F.3d 389 (7th Cir. 2009): After BP Products North America, Inc. ("BP") determined that Salik Rao had secretly paid a BP manager to influence the award of operating agreements in Rao's favor, BP told Rao it was terminating its franchise relationship with him at his two BP gas stations. *** The ...
From Rao v. BP Prods. N. Am., Inc., 589 F.3d 389 (7th Cir. 2009): After BP Products North America, Inc. (“BP”) determined that Salik Rao had secretly paid a BP manager to influence the award of operating agreements in Rao’s…
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“Zubulake Revisited: Six Years Later” — Excerpts from Judge Scheindlin’s Major New Electronic Spoliation Sanctions Decision

Titled “Zubulake Revisited: Six Years Later,” Judge Scheindlin’s new decision in Pension Comm. of Univ. of Montreal, 2010 U.S. Dist. LEXIS 4546 (S.D.N.Y. Jan. 15, 2010) (amended opinion) explores critical spoliation sanctions issues, including important procedural nuances. Key excerpts: I. INTRODUCTION In a ...
Titled “Zubulake Revisited: Six Years Later,” Judge Scheindlin’s new decision in Pension Comm. of Univ. of Montreal, 2010 U.S. Dist. LEXIS 4546 (S.D.N.Y. Jan. 15, 2010) (amended opinion) explores critical spoliation sanctions issues, including important procedural nuances. Key excerpts: I.…
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Neither Jury Demand Nor Non-Core Character of Action Necessitate Withdrawal of Reference to Bankruptcy Court, At Least Not Immediately

From Tate v. CitiMortgage, Inc., 2010 U.S. Dist. LEXIS 3675 (S.D. Ala. Jan 18, 2010): [E]ven if the Bankruptcy Court's decision to strike CitiMortgage's jury demand was erroneous, the mere presence of a jury demand would not justify withdrawal of the reference at this time. Federal courts have universally held that "a Seventh Amendment j ...
From Tate v. CitiMortgage, Inc., 2010 U.S. Dist. LEXIS 3675 (S.D. Ala. Jan 18, 2010): [E]ven if the Bankruptcy Court’s decision to strike CitiMortgage’s jury demand was erroneous, the mere presence of a jury demand would not justify withdrawal of…
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Plaintiff May Not Amend Complaint Via Arguments in Brief Opposing Summary Judgment

From Lawshe v. Squeri, 2010 U.S. Dist. LEXIS 3590 (D.N.J. Jan. 19, 2010): Plaintiffs now state that they are bringing claims under the civil Racketeer and Corrupt Organizations Act (RICO). (Pl. Opp'n at 18.) Plaintiffs argue that, because the RICO Act has a statute of limitations period that is longer than one year, their claims are no ...
From Lawshe v. Squeri, 2010 U.S. Dist. LEXIS 3590 (D.N.J. Jan. 19, 2010): Plaintiffs now state that they are bringing claims under the civil Racketeer and Corrupt Organizations Act (RICO). (Pl. Opp’n at 18.) Plaintiffs argue that, because the RICO…
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The Real Peril in Overreaching in Argument

From Targin Sign Sys. v. Preferred Chiropractic Ctr., Ltd., 2010 U.S. Dist. LEXIS 4581 (N.D. Ill. Jan. 21, 2010) (Shadur, J.): [B]efore this opinion turns to the reason for so stating, counsel's effort evokes a concern that is familiar to judges but too often escapes lawyers: the potential risk to counsel when they push obviously ground ...
From Targin Sign Sys. v. Preferred Chiropractic Ctr., Ltd., 2010 U.S. Dist. LEXIS 4581 (N.D. Ill. Jan. 21, 2010) (Shadur, J.): [B]efore this opinion turns to the reason for so stating, counsel’s effort evokes a concern that is familiar to…
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Diversity Jurisdiction — Where Administration of Trust Attacked, Fiduciary Breach Alleged and Removal of Trustee Sought, Amount in Controversy Properly Determined by Reference to Corpus of Trust — Circuit Split

From Glass v. Steinberg, 2010 U.S. Dist. LEXIS 3483 (W.D. Ky. Jan. 15, 2010): Plaintiff, Richard Glass, brought this action in Kentucky state court seeking the following remedies: (1) removal of Defendant, Larry Steinberg, as trustee over two trusts created by Plaintiff's aunt, Sylvia Goldstein; (2) an order compelling Defendant to accou ...
From Glass v. Steinberg, 2010 U.S. Dist. LEXIS 3483 (W.D. Ky. Jan. 15, 2010): Plaintiff, Richard Glass, brought this action in Kentucky state court seeking the following remedies: (1) removal of Defendant, Larry Steinberg, as trustee over two trusts created…
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Settlement Payments Doctrine Exempts from Avoidance Commercial Paper Redemptions Made Through DTC — Rule of the Last Antecedent

From Alfa, S.A.B. de C.V. v. Enron Creditors Recovery Corp., 2009 U.S. Dist. LEXIS 123259 (S.D.N.Y. Nov. 20, 2009): The instant appeal is limited to a single question — whether the § 546(e) "safe harbor," which bars avoidance of transfers that constitute "settlement payments" made in connection with transactions in securities, extends ...
From Alfa, S.A.B. de C.V. v. Enron Creditors Recovery Corp., 2009 U.S. Dist. LEXIS 123259 (S.D.N.Y. Nov. 20, 2009): The instant appeal is limited to a single question — whether the § 546(e) “safe harbor,” which bars avoidance of transfers…
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§ 12(a)(2) Claims Subject to Rule 9(b) Requirements — Caselaw Split

From Greer v. Advanced Equities, Inc., 2010 U.S. Dist. LEXIS 3142 (N.D. Ill. Jan. 15, 2010): While not directly raised by the parties, the court notes that whether § 12(a)(2) claims are governed by Rule 9(b)'s specificity requirements is not a settled issue. While some courts have concluded that Rule 9(b)'s particularity requirement app ...
From Greer v. Advanced Equities, Inc., 2010 U.S. Dist. LEXIS 3142 (N.D. Ill. Jan. 15, 2010): While not directly raised by the parties, the court notes that whether § 12(a)(2) claims are governed by Rule 9(b)’s specificity requirements is not…
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Res Judicata, as Affirmative Defense, Should be Raised by a 12(c) Motion for Judgment on the Pleadings, Not a 12(b)(6) Dismissal Motion — Claim-Splitting — Illinois’ Single-Refiling Rule

From Carr v. Tillery, 2010 U.S. App. LEXIS 685 (7th Cir. Jan. 12, 2010): Rex Carr, a successful class action lawyer in southern Illinois, is locked in mortal combat with his former law partners, the defendants in a RICO case (with a supplemental state-law claim, 28 U.S.C. § 1367) that he brought in federal district court. The dispute is ...
From Carr v. Tillery, 2010 U.S. App. LEXIS 685 (7th Cir. Jan. 12, 2010): Rex Carr, a successful class action lawyer in southern Illinois, is locked in mortal combat with his former law partners, the defendants in a RICO case…
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Recent Posts

Inherent Power Sanctions — Dismissal for Threatening Defendant and Magistrate Judge — No First Amendment Right to Threaten Violence

RICO: Domestic Injury — Delivery of Fraudulently Non-Conforming Goods FOB Los Angeles for Shipment to China Means Injury Arose Domestically When Purchaser Took Title —Other Relevant Factors Include That The Non-Conforming Goods Were Sourced and Made in the U.S. and The Racketeering Activity (Mail/Wire Fraud) Occurred in, and Was Directed from, the United States — Irrelevant to Domestic Injury Inquiry Whether Property Is Tangible or Intangible — 7th Circuit’s “Injury-Felt” Test of Domestic Injury Rejected by Supreme Court — RICO Standing Requires Concrete Financial Loss, Not Merely Injury to Valuable Intangible Property Interest (9th Circuit)

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

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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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