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

Broad Arbitration Clause Confers on Arbitrator the Power to Award Compensatory Sanctions, Even If Contract Provides that Each Party Bears Own Fees

From ReliaStar Life Ins. Co. of N.Y. v. EMC Nat’l Life Co., 564 F.3d 81 (2d Cir. 2009): Where an arbitration clause is broad, arbitrators have the discretion to order such remedies as they deem appropriate.*** This is because it is “not the role of the courts to undermine the comprehensive grant of authority to arbitrators by prohibi ...
From ReliaStar Life Ins. Co. of N.Y. v. EMC Nat’l Life Co., 564 F.3d 81 (2d Cir. 2009): Where an arbitration clause is broad, arbitrators have the discretion to order such remedies as they deem appropriate.*** This is because it…
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Stipulations Are Binding Contracts and, If Court Approved, Should Not Lightly be Set Aside

From Porter v. King, 2009 U.S. Dist. LEXIS 67552 (W.D. Pa. Aug. 3, 2009): Generally, pretrial stipulations as to facts entered into between parties are binding on the parties and the Court. See 73 AMERICAN JURISPRUDENCE 2D STIPULATIONS § 7 (2009); see also Gander v. Gander, 250 F.3d 606, 609 (8th Cir. 2001). It is also "a ...
From Porter v. King, 2009 U.S. Dist. LEXIS 67552 (W.D. Pa. Aug. 3, 2009): Generally, pretrial stipulations as to facts entered into between parties are binding on the parties and the Court. See 73 AMERICAN JURISPRUDENCE 2D STIPULATIONS § 7…
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Specific Personal Jurisdiction Is a Claim-Specific Inquiry — Jurisdiction Exists Only for Claims Tied to Venue, and for Tort Claims Arising out of Contract with Sufficient Ties to Venue

From Cantex Energy Corp. v. World Stock Exch., LLC, 2009 U.S. Dist. LEXIS 67736 (W.D. Tex Aug. 4, 2009): [T]he Fifth Circuit rather recently decided as an issue of first impression that specific personal jurisdiction is a claim-specific inquiry, holding that "[a] plaintiff bringing multiple claims that arise out of different forum conta ...
From Cantex Energy Corp. v. World Stock Exch., LLC, 2009 U.S. Dist. LEXIS 67736 (W.D. Tex Aug. 4, 2009): [T]he Fifth Circuit rather recently decided as an issue of first impression that specific personal jurisdiction is a claim-specific inquiry, holding…
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28 U.S.C. § 1782 Authorizes Discovery in Aid of Private International Arbitration in Light of Intel

The recently reported opinion In re Application of Operadora DB Mexico, S.A. de C.V., 2009 U.S. Dist. LEXIS 68078 (M.D. Fla. May 28, 2009), collects the caselaw considering whether a private international arbitration panel constitutes a "foreign or international tribunal" under 28 U.S.C. § 1782, in light of the Supreme Court’s opinion in Intel Corp. v. ...
The recently reported opinion In re Application of Operadora DB Mexico, S.A. de C.V., 2009 U.S. Dist. LEXIS 68078 (M.D. Fla. May 28, 2009), collects the caselaw considering whether a private international arbitration panel constitutes a “foreign or international tribunal”…
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RICO — Role of Operation-and-Management Test in Assessing Distinctiveness between Enterprise and Defendant — Mere Business Relationship between Entities ≠ Operation or Management

From Crichton v. Golden Rule Ins. Col, 2009 U.S. App. LEXIS 17376 (7th Cir. Aug. 5, 2009): Florida resident John Crichton began purchasing group health insurance from Golden Rule in 1995 under a master policy offered only to members of the Federation of American Consumers and Travelers ("the Federation"), a nonprofit organization that pro ...
From Crichton v. Golden Rule Ins. Col, 2009 U.S. App. LEXIS 17376 (7th Cir. Aug. 5, 2009): Florida resident John Crichton began purchasing group health insurance from Golden Rule in 1995 under a master policy offered only to members of…
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Motions in Limine Not Covered by Scheduling Order Calling for Pretrial Motions by Date Certain

From Royale Green Condominium Assn. v. Aspen Specialty Ins. Co., 2009 U.S. Dist. LEXIS 66064 (S.D. Fla. July 24, 2009): Plaintiff is technically correct in asserting that the Scheduling Order ... calls for the filing of all pretrial motions not explicitly excluded by Local Rule 7.1.A.1 by or before February 16, 2009. However, motions ...
From Royale Green Condominium Assn. v. Aspen Specialty Ins. Co., 2009 U.S. Dist. LEXIS 66064 (S.D. Fla. July 24, 2009): Plaintiff is technically correct in asserting that the Scheduling Order … calls for the filing of all pretrial motions not…
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Federal Jurisdiction — State Tort Law Action Premised on Misconduct in Federal Litigation and Violation of Federal Rules of Civil Procedure Not Removable under Grable

From Waris v. Ormond, 2009 U.S. Dist. LEXIS 66687 (E.D. Pa. July 27, 2009): This case arises out of three earlier actions, Waris v. HCR Manor Care, U.S.D.C. E.D. Pa., No. 07-cv-3344; Waris v. Keystone Health Plan East. Court of Common Pleas of Delaware County, Pennsylvania, Civ. No. 05-12718; and Waris v. Frick, U.S.D.C. E.D. Pa., No. 06- ...
From Waris v. Ormond, 2009 U.S. Dist. LEXIS 66687 (E.D. Pa. July 27, 2009): This case arises out of three earlier actions, Waris v. HCR Manor Care, U.S.D.C. E.D. Pa., No. 07-cv-3344; Waris v. Keystone Health Plan East. Court of…
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Sanctions — Improper Coaching of Witnesses — Use of Ethical Rules as Standard of Conduct — Reputational Injury Confers Article III Standing to Appeal Even After Monetary Sanctions Paid —Intentional Failure to Prevent Client from Intentionally Dele

From Ibarra v. Baker, 2009 U.S. App. LEXIS 16753 (5th Cir. July 28, 2009): Mary Baker, Scott Durfee, and Frank Sanders represented Harris County, Texas, and several of its law enforcement officers in a 42 U.S.C. § 1983 action. The district court found that Baker and Sanders improperly coached defense witnesses, gave or abided false test ...
From Ibarra v. Baker, 2009 U.S. App. LEXIS 16753 (5th Cir. July 28, 2009): Mary Baker, Scott Durfee, and Frank Sanders represented Harris County, Texas, and several of its law enforcement officers in a 42 U.S.C. § 1983 action. The…
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Civil Contempt Standards — Order Directed at Non-Party Corporate Employer and Party Employees — Contempt for Failure to Apprise Supervisors of Order and Obtain Corporate Enforcement — Good Faith and Substantial Compliance No Defense to Contempt

From Roslies-Perez v. Superior Forestry Serv., Inc., 2009 U.S. Dist. LEXIS 65112 (M.D. Tenn. July 28, 2009): Plaintiffs, temporary foreign guestworkers with H-2B visas, filed this action as a collective action against the Defendants: Superior Forestry Services, Inc. and several of its owners and managers seeking injunctive relief and bac ...
From Roslies-Perez v. Superior Forestry Serv., Inc., 2009 U.S. Dist. LEXIS 65112 (M.D. Tenn. July 28, 2009): Plaintiffs, temporary foreign guestworkers with H-2B visas, filed this action as a collective action against the Defendants: Superior Forestry Services, Inc. and several…
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Attorney-Client Privilege and Common Interest (Joint Defense) Doctrine — New York vs. Federal Law — Contract as Basis of Common Legal Interest — Lawyer Communications with Non-Client Protected — Oral vs. Written Common Interest Agreement

From HSH Nordbank AG v. Swerdlow, 2009 U.S. Dist. LEXIS 63711 (S.D.N.Y. July 22, 2009): A. Overview of Attorney-Client Privilege Under New York law, the attorney-client privilege protects confidential communications between client and counsel where such communications are made for the purpose of providing or obtaining ...
From HSH Nordbank AG v. Swerdlow, 2009 U.S. Dist. LEXIS 63711 (S.D.N.Y. July 22, 2009): A. Overview of Attorney-Client Privilege Under New York law, the attorney-client privilege protects confidential communications between client and counsel where such communications are made for…
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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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