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

Absence of Any Methodology by Expert in “Metaphorical Associations” Warrants Exclusion under Daubert and Rule 702 — Expert Unnecessary Where Jury Is Capable of Comprehending Facts and Drawing Conclusions

From Flagstar Bank, FSB v. Freestar Bank, N.A., 2009 U.S. Dist. LEXIS 106106 (C.D. Ill. Nov. 13, 2009), a trademark infringement action: Dr. Edward Lee Lamoureux holds a Ph.D. from the University of Oregon in Rhetoric and Communication with an emphasis on conversation analysis, rhetoric, qualitative research methods, general speech, and i ...
From Flagstar Bank, FSB v. Freestar Bank, N.A., 2009 U.S. Dist. LEXIS 106106 (C.D. Ill. Nov. 13, 2009), a trademark infringement action: Dr. Edward Lee Lamoureux holds a Ph.D. from the University of Oregon in Rhetoric and Communication with an…
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No Fraud If Recipient of Falsehoods Was Not Deceived — Fraud Action May Not Be Based on Misrepresentations of Law

Calif. Pharm. Mgmt., LLC v. Redwood & Cas. Ins. Co., 2009 U.S. Dist. LEXIS 105770 (C.D. Cal. Oct. 26, 2009) (mail fraud-based RICO action; also upholding assignee’s standing to assert RICO claims without discussion): In dismissing the SAC, this Court identified two deficiencies with Plaintiff's RICO claim. First, the SAC's allegations could ...
Calif. Pharm. Mgmt., LLC v. Redwood & Cas. Ins. Co., 2009 U.S. Dist. LEXIS 105770 (C.D. Cal. Oct. 26, 2009) (mail fraud-based RICO action; also upholding assignee’s standing to assert RICO claims without discussion): In dismissing the SAC, this Court…
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RICO Claim Barred by Res Judicata Because It Was Not Asserted in Prior State Court Action Arising Out of the Same Nucleus of Operative Facts and State Court Did Not Split the Cause of Action

From Crooked Creek Properties, Inc. v. Ensley, 2009 U.S. Dist. LEXIS 100907 (M.D. Ala. Oct. 28, 2009): [A]lthough not all of the causes of action are the same in the present action and the Autauga County Suit, res judicata's same-cause-of-action element will be satisfied if the claims in the former and present actions arise out ...
From Crooked Creek Properties, Inc. v. Ensley, 2009 U.S. Dist. LEXIS 100907 (M.D. Ala. Oct. 28, 2009): [A]lthough not all of the causes of action are the same in the present action and the Autauga County Suit, res judicata’s same-cause-of-action…
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Constitutional Necessity (Ashwander) vs. Constitutional Avoidance

From United States v. Whitted, 541 F.3d 480 (3d Cir. 2008) (Chagares, J., concurring): "It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case." Burton v. United States, 196 U.S. 283, 295, 25 S. Ct. 243, 49 L. Ed. 482 (1905). Such restraint is well-est ...
From United States v. Whitted, 541 F.3d 480 (3d Cir. 2008) (Chagares, J., concurring): “It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.” Burton v.…
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The “Follow-the-Settlements” or “Follow-the-Fortunes” Doctrine in Reinsurance

From Global Reins. Corp. of Am. v. Argonaut Ins. Co., 634 F. Supp. 2d 342 (S.D.N.Y. 2009): The "follow-the-settlements" (or "follow-the-fortunes") doctrine "binds a reinsurer to accept the cedent's good faith decisions on all things concerning the underlying insurance terms and claims against the underlying insured: coverage, tactics, law ...
From Global Reins. Corp. of Am. v. Argonaut Ins. Co., 634 F. Supp. 2d 342 (S.D.N.Y. 2009): The “follow-the-settlements” (or “follow-the-fortunes”) doctrine “binds a reinsurer to accept the cedent’s good faith decisions on all things concerning the underlying insurance terms…
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Authentication of Internet Evidence as Dependent on Purpose of Proffer and Source — Typical Web vs. Internet Archive

From Saadi v. Maroun, 2009 U.S. Dist. LEXIS 102879 (M.D. Fla. Nov. 4, 2009): Federal Rule of Evidence 901 requires that before a court may admit evidence in trial, a party must present evidence sufficient to show "that the matter in question is what its proponent claims." Fed. R. Evid. 901(a). A party can authenticate evidence in several ...
From Saadi v. Maroun, 2009 U.S. Dist. LEXIS 102879 (M.D. Fla. Nov. 4, 2009): Federal Rule of Evidence 901 requires that before a court may admit evidence in trial, a party must present evidence sufficient to show “that the matter…
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Forum Selection Clause Providing that Parties “Submit” to Courts of One Jurisdiction, without More, Is Permissive, Not Mandatory — Failure to Attach a Copy of Served Process with Notice of Removal Does Not Warrant Remand Even If Not Timely Corrected

Plaintiffs do not contest that this court has original jurisdiction over the instant action on the bases of both complete diversity between the parties and the federal questions presented by the Lanham Act and ACCPA [Anticybersquatting Consumer Protection Act] claims. Nevertheless, plaintiffs argue that the instant case should be remanded because, first, the forum- ...
Plaintiffs do not contest that this court has original jurisdiction over the instant action on the bases of both complete diversity between the parties and the federal questions presented by the Lanham Act and ACCPA [Anticybersquatting Consumer Protection Act] claims.…
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Standards for Withdrawal of the Reference to the Bankruptcy Court — Permissive and Mandatory (11th Circuit)

From Smith v. Regions Bank, 2009 U.S. Dist. LEXIS 103586 (S.D. Ga. Nov. 6, 2009): Withdrawal of the reference to the bankruptcy court may be either permissive or mandatory. The statute provides: The district court may withdraw, in whole or in part, any case or proceeding referred under this section, on its own mo ...
From Smith v. Regions Bank, 2009 U.S. Dist. LEXIS 103586 (S.D. Ga. Nov. 6, 2009): Withdrawal of the reference to the bankruptcy court may be either permissive or mandatory. The statute provides: The district court may withdraw, in whole or…
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Authentication of MySpace Communications = Email Authentication; No Need for Testimony from Representative of MySpace

From Dockery v. Dockery, 2009 Tenn. App. LEXIS 717 (Tenn. App. Oct. 29, 2009) (note: Tennessee Rule of Evidence 901(a) = Federal Rule of Evidence 901(a)): Husband was found guilty of two counts of criminal contempt based on the content of communications he had with Ms. Lowe. Ms. Lowe was called as a witness at trial. Ms. Lowe testified ...
From Dockery v. Dockery, 2009 Tenn. App. LEXIS 717 (Tenn. App. Oct. 29, 2009) (note: Tennessee Rule of Evidence 901(a) = Federal Rule of Evidence 901(a)): Husband was found guilty of two counts of criminal contempt based on the content…
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Non-Collusive Naming of Citizen of Forum as Defendant Bars Removal Even If Defendant Is Not “Properly Joined and Served” Before Removal, Despite Text of 28 U.S.C. § 1441(b) — Caselaw Split

From NFC Acquisition, LLC v. Comerica Bank, 640 F. Supp. 2d 964 (N.D. Ohio 2009): Under 28 U.S.C. § 1441(b), federal courts have authority to exercise diversity jurisdiction if "none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." Referred to a ...
From NFC Acquisition, LLC v. Comerica Bank, 640 F. Supp. 2d 964 (N.D. Ohio 2009): Under 28 U.S.C. § 1441(b), federal courts have authority to exercise diversity jurisdiction if “none of the parties in interest properly joined and served as…
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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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