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

Post-Judgment Amendment of Complaint

From In re Assicurazioni Generali, S.P.A., 2010 U.S. App. LEXIS 953 (2d Cir. Feb. 9, 2010): The filing of an amended complaint is not permissible once a judgment is entered unless the judgment is set aside or vacated pursuant to Rule 59 of the Federal Rules of Civil Procedure. Nat'l Petrochemical Co. of Iran v. M/T Stolt Sheaf, 9 ...
From In re Assicurazioni Generali, S.P.A., 2010 U.S. App. LEXIS 953 (2d Cir. Feb. 9, 2010): The filing of an amended complaint is not permissible once a judgment is entered unless the judgment is set aside or vacated pursuant to…
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“Something More” Is Not Required for Parent + Subsidiary to Constitute a RICO Enterprise — Circuit Split

From Watts v. Allstate Indem. Co., 2009 U.S. Dist. LEXIS 56275 (E.D. Cal. July 1, 2009): Defendants also argue that a parent corporation is not distinct from its subsidiary for purposes of a section 1962(c) claim. Section 1962(c) requires a person "associated with" an enterprise. 18 U.S.C. § 1962(c). Courts have held that because an en ...
From Watts v. Allstate Indem. Co., 2009 U.S. Dist. LEXIS 56275 (E.D. Cal. July 1, 2009): Defendants also argue that a parent corporation is not distinct from its subsidiary for purposes of a section 1962(c) claim. Section 1962(c) requires a…
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Inherent Power — Professional Plaintiff Cannot Show Good Faith by Claiming Reliance on Advice of Counsel, Particularly when Reasserting Claims Repeatedly Rejected by Other Courts

From Stalley v. Mountain States Health Alliance, 2010 U.S. Dist. LEXIS 8643 (E.D. Tenn. Feb. 2, 2010): Plaintiff — along with his partner in litigation, Erin Brockovich — filed numerous lawsuits in federal courts across the country, claiming the Medicare Secondary Payer Act ("MSP"), 42 U.S.C. § 1395y(b), was a qui tam statute ...
From Stalley v. Mountain States Health Alliance, 2010 U.S. Dist. LEXIS 8643 (E.D. Tenn. Feb. 2, 2010): Plaintiff — along with his partner in litigation, Erin Brockovich — filed numerous lawsuits in federal courts across the country, claiming the Medicare…
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Applying Daubert and Rule 702 to Historians’ Testimony

From Saginaw Chippewa Indian Tribe of Mich. v. Granholm, 2010 U.S. Dist. LEXIS 9498 (E.D. Mich. Feb. 4, 2010): The Daubert factors are not particularly helpful in this case. See First Tenn. Bank Nat. Ass'n v. Barreto, 268 F.3d 319, 335 (6th Cir. 2001) (citing United States v. Jones, 107 F.3d 1147, 1158 (6th Cir. 199 ...
From Saginaw Chippewa Indian Tribe of Mich. v. Granholm, 2010 U.S. Dist. LEXIS 9498 (E.D. Mich. Feb. 4, 2010): The Daubert factors are not particularly helpful in this case. See First Tenn. Bank Nat. Ass’n v. Barreto, 268 F.3d 319,…
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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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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 Propoerty 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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