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

Arbitration — Fed.R.Civ.P. 60(b) May Be Invoked in District Court to Correct Certain Errors in Arbitration Awards

From AIG Baker Sterling Heights, LLC v. Am. Multi-Cinema, Inc., 2009 U.S. App. LEXIS 18639 (11th Cir. Aug. 18, 2009): Several years ago American Multi-Cinema, Inc. (American) arbitrated a tax dispute with AIG Baker Sterling Heights, LLC and A.B. Olathe II LP (collectively, Baker), from whom American leased space in shopping centers. The ...
From AIG Baker Sterling Heights, LLC v. Am. Multi-Cinema, Inc., 2009 U.S. App. LEXIS 18639 (11th Cir. Aug. 18, 2009): Several years ago American Multi-Cinema, Inc. (American) arbitrated a tax dispute with AIG Baker Sterling Heights, LLC and A.B. Olathe…
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Because of Reputational Impact, Sanction of Reprimand Is a Sufficient Deterrent without an Award of Attorneys’ Fees

From Gary v. Braddock Cemetery, 2009 U.S. App. LEXIS 12431 (3d Cir. June 8, 2009): Appellants ... argue that the District Court abused its discretion by declining to impose monetary sanctions because the mere public filing of the R&R [Report and Recommendations] is not sufficient to "deter baseless filings." Although we may well have bee ...
From Gary v. Braddock Cemetery, 2009 U.S. App. LEXIS 12431 (3d Cir. June 8, 2009): Appellants … argue that the District Court abused its discretion by declining to impose monetary sanctions because the mere public filing of the R&R [Report…
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Expert Testimony on “Zone of Insolvency” Rejected under Daubert as Unreliable — Phrase Has No Accepted Meaning and There Is No Accepted Methodology to Test It

From Kipperman v. Onex Corp., 2009 U.S. Dist. LEXIS 71666 (N.D. Ga. Aug. 13, 2009): Logue testified that ABCO/Magnatrax was in a "zone of insolvency" at the time of the ABCO and Republic acquisitions. *** Defendants contend that this testimony is inadmissible, in part, because there is no scientifically accepted definition of, or methodol ...
From Kipperman v. Onex Corp., 2009 U.S. Dist. LEXIS 71666 (N.D. Ga. Aug. 13, 2009): Logue testified that ABCO/Magnatrax was in a “zone of insolvency” at the time of the ABCO and Republic acquisitions. *** Defendants contend that this testimony…
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RICO/PSLRA Bar — Whether LLC Interests Constitute Securities = Fact Question — Measuring Time for 2-Year Continuity Requirement

From Automated Teller machine Advantage LLC v. Moore, 2009 U.S. Dist. LEXIS 68724 (S.D.N.Y. Aug. 6, 2009): [LLC Interests as Triggering PSLRA Bar] The PSLRA "bars private causes of action under RICO for predicate acts that describe conduct that would otherwise be actionable as securities fraud." Thomas H. Lee Equity F ...
From Automated Teller machine Advantage LLC v. Moore, 2009 U.S. Dist. LEXIS 68724 (S.D.N.Y. Aug. 6, 2009): [LLC Interests as Triggering PSLRA Bar] The PSLRA “bars private causes of action under RICO for predicate acts that describe conduct that would…
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Sarbanes-Oxley — Substantive Requirements Necessary to Establish a Whistleblower Claim

From Van Asdale v. Int’l Game Tech., 2009 U.S. App. LEXIS 18037 (9th Cir. Aug. 13, 2009): This case presents our first opportunity to examine the substantive requirements necessary to establish a claim under the whistleblower-protection provisions of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A. *** We observe at the outset that th ...
From Van Asdale v. Int’l Game Tech., 2009 U.S. App. LEXIS 18037 (9th Cir. Aug. 13, 2009): This case presents our first opportunity to examine the substantive requirements necessary to establish a claim under the whistleblower-protection provisions of the Sarbanes-Oxley…
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Specific Performance of Settlement Agreement

From Nordica S.p.A. v. ICON Health & Fitness, 2009 U.S. Dist. LEXIS 71385 (D.N.H. Aug. 11, 2009): Under both New Hampshire and Utah law, specific performance is an adequate remedy when one party is in breach of a settlement agreement. Poland v. Twomey, 937 A.2d 934, 937 (N.H. 2007) (specific performance is appropriate relief for ...
From Nordica S.p.A. v. ICON Health & Fitness, 2009 U.S. Dist. LEXIS 71385 (D.N.H. Aug. 11, 2009): Under both New Hampshire and Utah law, specific performance is an adequate remedy when one party is in breach of a settlement agreement.…
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Internet Printout of Immunization Schedule Unverified by Medical Professional Not Subject to Judicial Notice

From TR v. LVM, 209 P.3d 879 (Wyo. Sup. Ct. 2009): Appellant, T.R. (Mother), appeals a district court's decision and order finding her unfit and appointing Appellees, L.V.M. and A.R.M. (Grandparents), who are the children's paternal grandparents, guardians of her two minor children, A.R. and C.R. *** Mother first contends that th ...
From TR v. LVM, 209 P.3d 879 (Wyo. Sup. Ct. 2009): Appellant, T.R. (Mother), appeals a district court’s decision and order finding her unfit and appointing Appellees, L.V.M. and A.R.M. (Grandparents), who are the children’s paternal grandparents, guardians of her…
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Repeated Defragging May Constitute Spoliation — Defragging Destroys Evidence of Hard-Drive Wiping — Permissible vs. Impermissible Defragging

From Trustees of Chi. Plastering Institute v. Village of Elwood, 2009 U.S. Dist. LEXIS 42952 (N.D. Ill. May 20, 2009): Defendant hired an expert who admitted at her deposition that there were wiping programs installed on computers belonging to defendant Alberts and Donchez. She also admitted in her deposition that she could not ascertai ...
From Trustees of Chi. Plastering Institute v. Village of Elwood, 2009 U.S. Dist. LEXIS 42952 (N.D. Ill. May 20, 2009): Defendant hired an expert who admitted at her deposition that there were wiping programs installed on computers belonging to defendant…
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Scope of Review of Magistrate Judge Orders under 28 U.S.C. § 636(b)(1)(A) — Monetary Sanctions Issued Pursuant to Rule 30(g)

From Edmonds v. Seavey, 2009 U.S. Dist. LEXIS 66012 (S.D.N.Y. July 19, 2009): Under 28 U.S.C. § 636(b)(1)(A), "a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court," with the exception of certain enumerated dispositive motions. A magistrate's order relating to a non-dispositive pret ...
From Edmonds v. Seavey, 2009 U.S. Dist. LEXIS 66012 (S.D.N.Y. July 19, 2009): Under 28 U.S.C. § 636(b)(1)(A), “a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court,” with the exception of…
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Electronic Discovery — Litigation Hold Letters, Although Privileged or Work Product, Are Discoverable on a Prima Facie Showing of Spoliation

Electronic Discovery — Litigation Hold Letters, Although Privileged or Work Product, Are Discoverable on a Prima Facie Showing of Spoliation From Major Tours, Inc. v. Colorel, 2009 U.S. Dist. LEXIS 68128 (D.N.J. Aug. 4, 2009): As a general matter hold letters are not discoverable, particularly when a party has made an adequate showing ...
Electronic Discovery — Litigation Hold Letters, Although Privileged or Work Product, Are Discoverable on a Prima Facie Showing of Spoliation From Major Tours, Inc. v. Colorel, 2009 U.S. Dist. LEXIS 68128 (D.N.J. Aug. 4, 2009): As a general matter hold…
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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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