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

When Is a Bond Not a “Security?”

From Glazer v. Abercrombie & Kent, Inc., 2009 U.S. Dist. LEXIS 86583 (N.D. Ill. Sept. 22, 2009): This case stems from each plaintiff's decision to join a luxury travel club -- Distinctive Retreats by Abercrombie & Kent ... (the "Club" or "Distinctive Retreats").... Each plaintiff received five primary documents from the Club including: (1 ...
From Glazer v. Abercrombie & Kent, Inc., 2009 U.S. Dist. LEXIS 86583 (N.D. Ill. Sept. 22, 2009): This case stems from each plaintiff’s decision to join a luxury travel club — Distinctive Retreats by Abercrombie & Kent … (the “Club”…
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Rule 41(a)(1)(A)(ii) Stipulation of Dismissal Is Effective without Court Order Only If Stipulation Is Executed by All Parties Who Have Appeared in Action — Not Just Parties Remaining at Time Stip Signed

From Anderson-Tully Co. v. Federal Ins. Co., 2009 U.S. App. LEXIS 21141 (6th Cir. Sept. 23, 2009): Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), a "plaintiff may dismiss an action without a court order by filing . . . a stipulation of dismissal signed by all parties who have appeared." And, on January 14, 2008, ATCO and ...
From Anderson-Tully Co. v. Federal Ins. Co., 2009 U.S. App. LEXIS 21141 (6th Cir. Sept. 23, 2009): Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), a “plaintiff may dismiss an action without a court order by filing . . .…
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Supreme Court to Decide Whether Discovery Order Holding Privilege Waived Is Immediately Appealable as a Collateral Order

On October 5, 2009, the Supreme Court will hear argument in Mohawk Industries, Inc. v. Carpenter (08-678) to resolve the Circuit split as to whether a district court discovery order finding that the attorney-client privilege has been waived is immediately appealable as a collateral order. The Cornell synopsis of the issue can be found at http://topics.law.cornell.e ...
On October 5, 2009, the Supreme Court will hear argument in Mohawk Industries, Inc. v. Carpenter (08-678) to resolve the Circuit split as to whether a district court discovery order finding that the attorney-client privilege has been waived is immediately…
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Experts — Suicide-by-Cop Theory Satisfies Daubert

From Boyd v. City and County of San Francisco, 576 F.3d 938 (9th Cir. 2009): In disputing the relevance of the challenged evidence, the Boyd Family target Dr. Keram's expert testimony in particular. They assert that the district court failed in its role as a gatekeeper of the evidence by allowing Dr. Keram's testimony regarding suicide by ...
From Boyd v. City and County of San Francisco, 576 F.3d 938 (9th Cir. 2009): In disputing the relevance of the challenged evidence, the Boyd Family target Dr. Keram’s expert testimony in particular. They assert that the district court failed…
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Effective 12/1/09, the District Court Is Empowered to Rule Provisionally on Motions Filed after Notice of Appeal Is Filed

Once the notice of appeal is filed, jurisdiction generally passes from the district court to the court of appeals. Other than on certain non-merits related matters such as sanctions, the district court lacks authority to rule on almost any motions subsequently filed. New Rule 61.1, entitled, Indicative Ruling After Notice of Appeal Filed, takes effect on December ...
Once the notice of appeal is filed, jurisdiction generally passes from the district court to the court of appeals. Other than on certain non-merits related matters such as sanctions, the district court lacks authority to rule on almost any motions…
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Effective 12/1/09, CAFA Typo re: Appeal Timing Fixed

28 U.S.C. § 1453 — the removal provision of the Class Action Fairness Act — confers a right of appeal of any remand order, providing that the defense must appeal “not less than 7 days after entry of the [remand] order.” Every Circuit to consider this language has ruled it is a typo — that not “less than” should read “not more than” because it wou ...
28 U.S.C. § 1453 — the removal provision of the Class Action Fairness Act — confers a right of appeal of any remand order, providing that the defense must appeal “not less than 7 days after entry of the [remand]…
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Spoliation — Adverse Inference Inadequate and Awkward in Bench Trial — Results of Testing Precluded at Trial and on Summary Judgment and Daubert Motions

From Innis Arden Golf Club v. Pitney Bowes, Inc., 2009 U.S. Dist. LEXIS 45828 (D. Conn. May 21, 2009) (after testing soil sediment, the samples were destroyed despite awareness of the prospect of litigation): Even if this course of conduct may not warrant outright dismissal, a severe sanction nevertheless is necessary, because overlooking ...
From Innis Arden Golf Club v. Pitney Bowes, Inc., 2009 U.S. Dist. LEXIS 45828 (D. Conn. May 21, 2009) (after testing soil sediment, the samples were destroyed despite awareness of the prospect of litigation): Even if this course of conduct…
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In Judging Futility of Amendment of Complaint, Court Considers All Possible Amendments, Not Just Proposed Amended Complaint — Standards for Denial of Leave to Amend and for Reconsideration Motion

From Panther Partners, Inc. v. Ikanos Commc’ns, Inc., 2009 U.S. App. LEXIS 20652 (2d Cir. Sept. 17, 2009): Leave to Amend We review denial of leave to amend under an "abuse of discretion" standard. *** First, it is well established that although leave to amend should be "freely given," Fed. R. Civ. P. 15(a), ther ...
From Panther Partners, Inc. v. Ikanos Commc’ns, Inc., 2009 U.S. App. LEXIS 20652 (2d Cir. Sept. 17, 2009): Leave to Amend We review denial of leave to amend under an “abuse of discretion” standard. *** First, it is well established…
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RICO — Direct vs. Derivative Injury — Shareholder in Close Corporation

From Siddle v. Crants, 2009 U.S. Dist. LEXIS 52997 (M.D. Tenn. June 18, 2009): From October 2001 thru October 2006, defendant Crants, Jr. was the Chairman, CEO and majority shareholder of Homeland Security Corporation (HSC). In 2003, his son, defendant Crants, III, acquired five percent ownership of HSC. During this time period, Crants, ...
From Siddle v. Crants, 2009 U.S. Dist. LEXIS 52997 (M.D. Tenn. June 18, 2009): From October 2001 thru October 2006, defendant Crants, Jr. was the Chairman, CEO and majority shareholder of Homeland Security Corporation (HSC). In 2003, his son, defendant…
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Internet, Cell Phones, Blogs, BlackBerrys — and Jurors

From Henri v. Curto, 908 N.E.2d 196, 202-03 (Ind. Sup. Ct. 2009): [P]ermitting jurors, other trial participants, and observers to retain or access mobile telephones or other electronic communication devices, while undoubtedly often helpful and convenient, is fraught with significant potential problems impacting the fair administration of ...
From Henri v. Curto, 908 N.E.2d 196, 202-03 (Ind. Sup. Ct. 2009): [P]ermitting jurors, other trial participants, and observers to retain or access mobile telephones or other electronic communication devices, while undoubtedly often helpful and convenient, is fraught with significant…
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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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