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

Sanctions — Failing to Advise Client of Meritlessness of Claim Warrants § 1927 Sanctions — Sixth Circuit § 1927 Standards

There is a split in the Circuits on the issue whether subjective bad faith is a prerequisite to imposition of sanctions under 28 U.S.C. § 1927. See Joseph, Sanctions: The Federal Law of Litigation Abuse § 23(B)(1) (4th ed. 2008). From Royal Oak Entm’t, LLC v. City of Royal Oak, 2009 U.S. App. LEXIS 5439 (6th Cir. Mar. 17, 2009):
There is a split in the Circuits on the issue whether subjective bad faith is a prerequisite to imposition of sanctions under 28 U.S.C. § 1927. See Joseph, Sanctions: The Federal Law of Litigation Abuse § 23(B)(1) (4th ed. 2008).…
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Common Interest/Joint Defense Privilege — Legal vs. Commercial Interests — Commercial Interest Insufficient to Afford Common Interest Protection Suffices to Avoid Work Product Waiver

From Ayers Oil Co. v. Am. Bus. Brokers, Inc., 2009 U.S. Dist. LEXIS 111928 (E.D. Mo. Dec. 2, 2009): This action is before the court on the motion of plaintiff Ayers Oil Co. (Ayers) to compel defendant American Business Brokers, Inc. (ABB) to produce an email communication from ABB corporate president Terry Monroe to non-party Bill Fecht.. ...
From Ayers Oil Co. v. Am. Bus. Brokers, Inc., 2009 U.S. Dist. LEXIS 111928 (E.D. Mo. Dec. 2, 2009): This action is before the court on the motion of plaintiff Ayers Oil Co. (Ayers) to compel defendant American Business Brokers,…
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Evidence of Earlier Preliminary Injunction Ruling and Other Litigations Excluded from Jury Trial Under 403 — Prior Arbitration Award Excluded as Hearsay — Brief of Party in Other Litigation Excluded as Hearsay

From Park West Radiology v. CareCore Nat’l LLC, 2009 U.S. Dist. LEXIS 110282 (S.D.N.Y. Nov. 19, 2009): [Preliminary Injunction Ruling.] Plaintiffs move to exclude any references to the Court's Preliminary Injunction Ruling as irrelevant and prejudicial pursuant to FRE 402 and 403. Defendants seek to introduce evidence ...
From Park West Radiology v. CareCore Nat’l LLC, 2009 U.S. Dist. LEXIS 110282 (S.D.N.Y. Nov. 19, 2009): [Preliminary Injunction Ruling.] Plaintiffs move to exclude any references to the Court’s Preliminary Injunction Ruling as irrelevant and prejudicial pursuant to FRE 402…
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For RICO Statute of Limitations Accrual Purposes, Date of Injury = Date of Investment

From Daly v. Pearl Spirits, Inc., 2009 U.S. Dist. LEXIS 108188 (N.D. Cal. Nov. 19, 2009): In Volk v. Davidson, 816 F.2d 1406 (9th Cir. 1987), the Ninth Circuit held that receiving written disclosure of the possibility of injury was sufficient to put a RICO plaintiff on constructive notice of his injury.... There, the plaintiffs had ...
From Daly v. Pearl Spirits, Inc., 2009 U.S. Dist. LEXIS 108188 (N.D. Cal. Nov. 19, 2009): In Volk v. Davidson, 816 F.2d 1406 (9th Cir. 1987), the Ninth Circuit held that receiving written disclosure of the possibility of injury was…
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Fiduciary Exception to Attorney-Client Privilege — ERISA

From Comrie v. IPSCO, Inc., 2009 U.S. Dist. LEXIS 111965 (N.D. Ill. Nov. 30, 2009): Plaintiff ... contends that the document-even if privileged and not waived-falls within the "fiduciary exception" and, therefore, is discoverable. This exception applies where the beneficiary requests from "a fiduciary of an ERISA plan . . . 'any communic ...
From Comrie v. IPSCO, Inc., 2009 U.S. Dist. LEXIS 111965 (N.D. Ill. Nov. 30, 2009): Plaintiff … contends that the document-even if privileged and not waived-falls within the “fiduciary exception” and, therefore, is discoverable. This exception applies where the beneficiary…
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The “Facially Conclusive” Exception to Younger Abstention

From HSBC Bank USA, N.A. v. N.Y. City Comm’n on Human Rights, 2009 U.S. Dist. LEXIS 110112 (S.D.N.Y. Nov. 25, 2009): On October 21, 2009, Plaintiffs filed their complaint against the Commission ("Complaint") seeking a declaratory judgment that §§ 8-107(10) and (11) of the [New York City Administrative] Code 1 are preempted by 12 U.S. ...
From HSBC Bank USA, N.A. v. N.Y. City Comm’n on Human Rights, 2009 U.S. Dist. LEXIS 110112 (S.D.N.Y. Nov. 25, 2009): On October 21, 2009, Plaintiffs filed their complaint against the Commission (“Complaint”) seeking a declaratory judgment that §§ 8-107(10)…
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Printout from Internet Archive Sufficiently Authenticated by Affidavit from Manager Explaining How Internet Archive Saves Old Web Pages

From SP Techs., LLC v. Garmin Int’l, Inc., 2009 U.S. Dist. LEXIS 110536 (N.D. Ill. Sept. 30, 2009) (on summary judgment motion; IP case): Plaintiff has moved to strike Defendant's Exhibit D, which consists of a print-out of a website showing the twenty lines of code that are in dispute. The website is maintained by the Internet Archive, ...
From SP Techs., LLC v. Garmin Int’l, Inc., 2009 U.S. Dist. LEXIS 110536 (N.D. Ill. Sept. 30, 2009) (on summary judgment motion; IP case): Plaintiff has moved to strike Defendant’s Exhibit D, which consists of a print-out of a website…
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Sanctions — Pro Se Inmate’s Letter to Court Laced with Obscenities and Charges of Racism Directed at Judge and Court Reporter Sent with “Improper Purpose” of Harassment, within Rule 11(b)(1)

From Kelly v. Null, 2009 U.S. Dist. LEXIS 109356 (S.D. Ill. Nov. 23, 2009): [T]his is not a situation in which the Court is threatening to impose sanctions on Kelly for making a layperson's mistake of law; rather, as is aptly demonstrated by even a cursory glance at Kelly's October 19 letter, Kelly's abuse of the judicial process is gross ...
From Kelly v. Null, 2009 U.S. Dist. LEXIS 109356 (S.D. Ill. Nov. 23, 2009): [T]his is not a situation in which the Court is threatening to impose sanctions on Kelly for making a layperson’s mistake of law; rather, as is…
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December 1, 2009: Immediate Changes to Federal Practice

Download associated file: 1 Dec 2009 Amendments to Federal Rules of Civil Procedure.pdf  Federal practice changes substantially on December 1, 2009. Principal changes to the Federal Rules of Civil Procedure effective 12/1/09: 1. A complaint ...
Download associated file: 1 Dec 2009 Amendments to Federal Rules of Civil Procedure.pdf  Federal practice changes substantially on December 1, 2009. Principal changes to the Federal Rules of Civil Procedure effective 12/1/09: 1. A complaint can be amended as…
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Intervention — Piggyback Standing — Intervenor Cannot Establish Piggyback Standing Where the Court Has Retained Jurisdiction to Enforce Its Order but There Is No Pending Dispute between the Parties

From City of Colo. Springs v. Climax Molybdenum Co., 2009 U.S. App. LEXIS 25854 (10th Cir. Nov. 25, 2009): In this water law litigation, Climax Molybdenum Company ("Climax") appeals the district court's denial of its motion to intervene in a set of consolidated cases over which the district court retained jurisdiction after first deciding ...
From City of Colo. Springs v. Climax Molybdenum Co., 2009 U.S. App. LEXIS 25854 (10th Cir. Nov. 25, 2009): In this water law litigation, Climax Molybdenum Company (“Climax”) appeals the district court’s denial of its motion to intervene in a…
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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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