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

Electronic Fund Transfers at Intermediary Bank Are Not Subject to Attachment to Secure Payment of International Arbitration Award, Even After ETFs Converted to Cash Deposits — Independent Jurisdiction over Arbitral Defendant Required

From Opal Finance Ltd. v. Agrenco Madeira Comercio Internacional LDA, 2010 U.S. Dist. LEXIS 9826 (S.D.N.Y. Feb. 3, 2010): On October 16, 2009, the Court of Appeals for the Second Circuit held that EFTs being processed by an intermediary bank are not subject to attachment under Rule B of the Supplemental Rules for Certain Admiralty and ...
From Opal Finance Ltd. v. Agrenco Madeira Comercio Internacional LDA, 2010 U.S. Dist. LEXIS 9826 (S.D.N.Y. Feb. 3, 2010): On October 16, 2009, the Court of Appeals for the Second Circuit held that EFTs being processed by an intermediary bank…
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Removal — Fourth Circuit Adopts Last-Served Defendant Rule, Distinguishing Prior Adoption of First-Served Defendant Rule as Dicta

From Barbour v Int’l Union, United Auto., Aerospace & Agricultural Implement Workers of Am., 2010 U.S. App. LEXIS 2389 (4th Cir. Feb. 4, 2010): The [Plaintiff] Retirees served the International Union with the complaint on March 20, 2008. Local 1183 was served with process on March 29, 2008. On April 28, 2009, more than thirty days af ...
From Barbour v Int’l Union, United Auto., Aerospace & Agricultural Implement Workers of Am., 2010 U.S. App. LEXIS 2389 (4th Cir. Feb. 4, 2010): The [Plaintiff] Retirees served the International Union with the complaint on March 20, 2008. Local 1183…
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How Not to Authenticate Website Evidence

From Cook v. J&J Snack Foods Corp., 2010 U.S. Dist. LEXIS 6905 (E.D. Cal. Jan. 27, 2010): The website print outs at issue are attached to Nani Kim's declaration. *** In the first paragraph of her declaration, Kim states that she has personal knowledge of the contents of her declaration. *** However, Kim's declaration does not provide t ...
From Cook v. J&J Snack Foods Corp., 2010 U.S. Dist. LEXIS 6905 (E.D. Cal. Jan. 27, 2010): The website print outs at issue are attached to Nani Kim’s declaration. *** In the first paragraph of her declaration, Kim states that…
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Traditional vs. Advisory Mandamus — Appropriateness of Allocating Portion of Settlements in MDL to Lead Counsel

From In re Zyprexa Prods. Liab. Litig., 2010 U.S. App. LEXIS 2260 (2d Cir. Feb. 3, 2010) (Kaplan, D.J., concurring) (extensive citations omitted throughout): A. The Traditional Mandamus Standard Mandamus and other prerogative writs "are reserved for really extraordinary causes." Mandamus is "not to be used as a substit ...
From In re Zyprexa Prods. Liab. Litig., 2010 U.S. App. LEXIS 2260 (2d Cir. Feb. 3, 2010) (Kaplan, D.J., concurring) (extensive citations omitted throughout): A. The Traditional Mandamus Standard Mandamus and other prerogative writs “are reserved for really extraordinary causes.”…
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CAFA — If Class Isn’t Definitionally Limited to State Citizens, Plaintiffs Must Offer Evidence to Establish Home State Exception — Or Define Class in Such a Way as to Insure It

From In re Sprint Nextel Corp., 2010 U.S. App. LEXIS 1928 (7th Cir. Jan. 28, 2010): The complaint alleged violations of the Kansas Unfair Trade and Consumer Protection Act. The district court declined to exercise jurisdiction on the ground that the suit fell within the home-state exception to the Class Action Fairness Act (CAFA). See 28 U ...
From In re Sprint Nextel Corp., 2010 U.S. App. LEXIS 1928 (7th Cir. Jan. 28, 2010): The complaint alleged violations of the Kansas Unfair Trade and Consumer Protection Act. The district court declined to exercise jurisdiction on the ground that…
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Bankruptcy Court Power to Impose Inherent Power and § 1927 Sanctions

From In re Green, 2010 Bankr. LEXIS 195, 2010 WL 346090 (Bankr. S.D.N.Y. Feb. 2, 2010): The Court has the power to sanction Farinella for this conduct pursuant to (1) its inherent power, (2) 28 U.S.C. § 1927, and (3) Local Bankruptcy Rule 9020-1. “Bankruptcy courts, like Article III courts, enjoy inherent power to sanction parties f ...
From In re Green, 2010 Bankr. LEXIS 195, 2010 WL 346090 (Bankr. S.D.N.Y. Feb. 2, 2010): The Court has the power to sanction Farinella for this conduct pursuant to (1) its inherent power, (2) 28 U.S.C. § 1927, and (3)…
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PSLRA — Issuance of Press Releases by Putative Lead Plaintiff’s Counsel Does Not Necessarily Mean the Suit is Lawyer Driven or that the Plaintiff Is Inadequate — District Court Discretion over Selection of Lead Counsel

From Zhu v. UCBH Holdings, Inc., 2010 U.S. Dist. LEXIS 6463 (N.D. Cal. Jan. 27, 2010): ***DeKalb and Operating Engineers argue that Cho's lawsuit is lawyer-driven because his counsel issued two press releases. The first one, sent out the day before his counsel filed the first lawsuit, announced that the Rosen Law Firm was commencing an i ...
From Zhu v. UCBH Holdings, Inc., 2010 U.S. Dist. LEXIS 6463 (N.D. Cal. Jan. 27, 2010): ***DeKalb and Operating Engineers argue that Cho’s lawsuit is lawyer-driven because his counsel issued two press releases. The first one, sent out the day…
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Second Circuit Panel Unable to Agree as to whether Magistrate Judges May Impose Rule 11 Sanctions — Circuit Split

From Kiobel v. Millson, 2010 U.S. App. LEXIS 378 (2d Cir. Jan. 8, 2010): Opinion of Court In this appeal we consider a challenge to the imposition of sanctions under Rule 11 of the Federal Rules of Civil Procedure. Appellants are defense counsel in an action brought pursuant to the Alien Tort Statute ("ATS"), 28 U.S.C. § ...
From Kiobel v. Millson, 2010 U.S. App. LEXIS 378 (2d Cir. Jan. 8, 2010): Opinion of Court In this appeal we consider a challenge to the imposition of sanctions under Rule 11 of the Federal Rules of Civil Procedure. Appellants…
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Civil Contempt Standards — Order of Civil Contempt for Failure to Pay Sanctions Award Vacated — Unresolved Question as to Contemnor’s Ability to Pay

From Camerons Hardware Inc. v. Independence Blue Cross, 2010 U.S. App. LEXIS 2028 (3d Cir. Jan. 15, 2010): On July 28, 2008, the District Court, after a hearing, granted the motions for sanctions. The Court concluded that "[a]t the time Mr. Otter filed the Complaint on behalf of his clients, he had been informed four times previously his ...
From Camerons Hardware Inc. v. Independence Blue Cross, 2010 U.S. App. LEXIS 2028 (3d Cir. Jan. 15, 2010): On July 28, 2008, the District Court, after a hearing, granted the motions for sanctions. The Court concluded that “[a]t the time…
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Email Authentication Other than through the Author

From EEOC v. Olsten Staffing Servs. Corp., 2009 U.S. Dist. LEXIS 88903 (W.D. Wis. Sept. 28, 2009): This case raises questions about the scope of an employment agency's obligations under the Americans with Disabilities Act. Zachary Schaefer is a deaf person who sought employment unsuccessfully through defendant Olsten Staffing Services Co ...
From EEOC v. Olsten Staffing Servs. Corp., 2009 U.S. Dist. LEXIS 88903 (W.D. Wis. Sept. 28, 2009): This case raises questions about the scope of an employment agency’s obligations under the Americans with Disabilities Act. Zachary Schaefer is a deaf…
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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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