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

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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Substantive Causation Requirements Do Not Control the Admissibility of Expert Evidence Offered on the Issue of Causation

From Lofton v. McNeil Consumer & Specialty Pharm., 2010 U.S. Dist. LEXIS 6390 (N.D. Tex. Jan. 27, 2010): The court next considers Defendants' argument that [ Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997)] controls the court's determination of relevancy in the context of the admissibility of expert testim ...
From Lofton v. McNeil Consumer & Specialty Pharm., 2010 U.S. Dist. LEXIS 6390 (N.D. Tex. Jan. 27, 2010): The court next considers Defendants’ argument that [ Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997)] controls the court’s…
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Sovereign Immunity — Education Department Immune from FDCPA Suit Relating to Student Loan — Unequivocal Congressional Waiver Required

From Ha v. U.S. Dep’t of Educ., 2010 U.S. Dist. LEXIS 2870 (D.D.C. Jan. 14, 2010): Incredibly, the determination of whether the FDCPA contains a waiver of sovereign immunity is a matter of first impression within our Circuit. At least one U.S. Court of Appeals and several U.S. District Courts, however, have evaluated this issue and fou ...
From Ha v. U.S. Dep’t of Educ., 2010 U.S. Dist. LEXIS 2870 (D.D.C. Jan. 14, 2010): Incredibly, the determination of whether the FDCPA contains a waiver of sovereign immunity is a matter of first impression within our Circuit. At least…
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Recent Posts

Rule 37 Discovery Sanctions: Ninth Circuit’s Five-Factor Test for Gauging Appropriateness of Dismissal — The Limited Utility of Rule 12(f) Motions to Strike

RICO: Employer Suffered Harm to Business or Property When Kickbacks Paid to Employees in Real Estate Transactions Done for Employer — Expert Testimony Sufficient to Prove Harm — Proof That Employer Paid Above-Market Prices Not Essential — Non-Disclosure of Certain Damages in Initial Disclosures Cured by Expert Report, Which Also Rendered Initial Non-Disclosure Harmless

Spoliation: Dismissal Under Rule 37(e)(2) and Monetary Sanctions Under Rule 37(e)(1), Implicitly Reading The “Or” Between 37(e)(1) and 37(e)(2) As Conjunctive, Not Disjunctive — Clear Error Standard of Review for District Court’s Intent (= Bad Faith) Finding under 37(e)(2)(C) — Additional Monetary Sanctions Imposed on Claimants under 28 U.S.C. § 1927 and Rule 37(a)(5) — No Right to Jury Determination of Intent under Rule 37(e)(2) — “Substantially Justified” in Rule 37(a)(5) Has Same Meaning As In Equal Access to Justice Act and Thus Rule 11 — Meaning of “Unreasonable and Vexatious” in 7th Circuit

Inherent Power Sanction of Dismissal — Preponderance of the Evidence Burden of Proof, Not Clear and Convincing Evidence (7th Circuit)

§ 1927 Sanctions — Must A Lawyer Who Unreasonably and Vexatiously Multiplies Federal Court Proceedings Be Acting “As An Attorney” When Committing the Misconduct To Be Subject to Sanction under § 1927?

Rule 37 Sanctions — Unfamiliarity With Litigation Process Does Not Excuse Intentional Disregard of Court Order — Also Affirming Rule 26(g) Sanctions on Clients and Counsel for False Representations That All Responsive Documents Had Been Produced

Supreme Court: Notice of Appeal Filed After The Original Deadline But Before Reopening by The District Court Is Timely — It Relates Forward to The Date of The Order Making The Appeal Possible — Second Notice of Appeal After Reopening Unnecessary

Rule 37 Default Judgment: Second Circuit’s Four-Factor Test for Imposing Defaults and Three-Factor Test for Lifting Them

Rule 37 Default Judgment — Tenth Circuit Multifactor Test Is Not Exhaustive But a Non-Exclusive List of “Sometimes-Helpful Criteria Or Guide Posts”— Appeal from Preliminary Injunction Mooted by Entry of Permanent Injunction — Difficulty in Collecting Damages Award May Equal Irreparable Injury — A Monetary Award For Past Conduct Does Not Preclude A Permanent Injunction Against Similar Wrongful Conduct Likely To Occur In The Future

RICO: Cover-Up Within Limitations Period of Untimely RICO Violation “Was Merely A Continuation” Of The Original Injury And Could Not Be Used “As A ‘Bootstrap’ To Salvage [The] Time-Barred Claims–Declining to Apply Pinkerton Doctrine to Civil RICO Claims

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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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