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

Mere Request in Brief for Leave to Amend, without Motion, Justifies Denial — As Does Subsequent Failure to File Proposed Amendment in District Court

From In re Novastar Fin. Inc. Secs. Litg., 2009 U.S. App. LEXIS 19634 (8th Cir. Sept. 1, 2009): "Although leave to amend 'shall be freely given when justice so requires,' see Fed. R. Civ. P. 15(a), plaintiffs do not have an absolute or automatic right to amend." U.S. ex rel. Lee v. Fairview Health Sys., 413 F.3d 748, 749 ( ...
From In re Novastar Fin. Inc. Secs. Litg., 2009 U.S. App. LEXIS 19634 (8th Cir. Sept. 1, 2009): “Although leave to amend ‘shall be freely given when justice so requires,’ see Fed. R. Civ. P. 15(a), plaintiffs do not have…
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Securities — No First Amendment or N.Y. Times v. Sullivan Protections for Allegedly Fraudulent Statements

From SEC v. Pirate Investor LLC, 2009 U.S. App. LEXIS 20455 (4th Cir. Sept. 15, 2009): In challenging the district court's scienter determination, Appellants contend that the First Amendment protections recognized by the Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), apply to ...
From SEC v. Pirate Investor LLC, 2009 U.S. App. LEXIS 20455 (4th Cir. Sept. 15, 2009): In challenging the district court’s scienter determination, Appellants contend that the First Amendment protections recognized by the Supreme Court in New York Times Co.…
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Experts and Summary Judgment — Competing Threads of Decision

Does an expert opinion -- or do conflicting expert opinions -- create a fact issue precluding summary judgment? Fact Issue Created • Harris v. Provident Life & Accident Ins. Co., 310 F.3d 73, 79 (2d Cir. 2002): “Where, as here, there are conflicting expert reports presented, courts are wary of granting summary judg ...
Does an expert opinion — or do conflicting expert opinions — create a fact issue precluding summary judgment? Fact Issue Created • Harris v. Provident Life & Accident Ins. Co., 310 F.3d 73, 79 (2d Cir. 2002): “Where, as here,…
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“Corporate Disclosure of ‘Facts’” without Waiving Attorney-Client Privilege or Work Product Protection — Paper authored by Professor Bruce Green for ABA Task Force on Attorney-Client Privilege

Download associated file: Bruce Green Disclosure of Facts without Waiver.pdf  Bruce Green, the distinguished Louis Stein Professor of Law at Fordham Law School and the Director of the S ...
Download associated file: Bruce Green Disclosure of Facts without Waiver.pdf  Bruce Green, the distinguished Louis Stein Professor of Law at Fordham Law School and the Director of the Stein Center of Law and Ethics, has written an excellent,…
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Noerr-Pennington Doctrine Applies to Government’s Condemnation Litigation, Including Discovery Conduct — Protection Extends to Counsel — Sham Exception Applies Even If Plaintiff was Not Diligent in Seeking to Uncover Sham

The plaintiff Kearney v. Foley & Lardner, LLP, 2009 U.S. App. LEXIS 20950 (9th Cir. Sept. 18, 2009) alleged that, in a prior state court condemnation proceeding, the condemning governmental entity and its counsel falsely denied the existence of, and failed to produce in discovery, test results that bore directly on the value of the property. The governmental ...
The plaintiff Kearney v. Foley & Lardner, LLP, 2009 U.S. App. LEXIS 20950 (9th Cir. Sept. 18, 2009) alleged that, in a prior state court condemnation proceeding, the condemning governmental entity and its counsel falsely denied the existence of, and…
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Name Partners at P.C. Not Liable as Fiduciaries for Other Lawyer’s Pillaging of IOLA Account — Violation of Disciplinary Rules Isn’t Necessarily Evidence of Negligence — N.Y. Bus. Corp. L. § 1505 Imposes No Duties on Lawyers in PC Not Representin

From Gianoukas v. Campitiello, 2009 U.S. Dist. LEXIS 95354 (S.D.N.Y. Oct. 13, 2009): Levy and Boonshoft are lawyers and officers of L&B, a New York professional services corporation. (Amended Complaint.... At times relevant to this action, Campitiello, who is also a lawyer, was a partner in, and employed by, L&B.... The Amended Complaint ...
From Gianoukas v. Campitiello, 2009 U.S. Dist. LEXIS 95354 (S.D.N.Y. Oct. 13, 2009): Levy and Boonshoft are lawyers and officers of L&B, a New York professional services corporation. (Amended Complaint…. At times relevant to this action, Campitiello, who is also…
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Bank of America Privilege Waiver Order — Not Authorized by Federal Rule of Evidence 502

Download associated file: B of A Waiver Order.pdf  The Southern District Judge presiding over the SEC/Bank of America action entered the selective waiver order drafted by counsel for Bank of America and the Securities and Exchange Commission (attached). In my view, it d ...
Download associated file: B of A Waiver Order.pdf  The Southern District Judge presiding over the SEC/Bank of America action entered the selective waiver order drafted by counsel for Bank of America and the Securities and Exchange Commission (attached). In…
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Abuse of Discretion & Experts — That Court 1 Is Affirmed in Admitting Certain Expert Testimony as Helpful to the Jury Does Not Mean that Court 2 Erred in Excluding Essentially the Same Testimony as Unnecessary to Assist Another Jury

From North American Specialty Ins. Co. v. Britt Paulk Ins. Agency, Inc., 579 F.3d 1106 (10th Cir. 2009): Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), establishes a two-part test for admission of expert testimony under Federal Rule of Evidence 702. First, evidence must be r ...
From North American Specialty Ins. Co. v. Britt Paulk Ins. Agency, Inc., 579 F.3d 1106 (10th Cir. 2009): Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), establishes a two-part…
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Trust 1 Is Not Collaterally Estopped by Judgment Against Trust 2 — Even Though They Share the Same Testators, Counsel and a Majority of Trustees — Given the Supreme Court’s Limitations on the Doctrine of “Virtual Representation”

From Henry E. and Nancy Horton Bartels Trust for the Benefit of Cornell Univ. v. United States, 88 Fed. Cl. 105, 2009 U.S. Claims LEXIS 236, 2009-2 U.S. Tax Cas. (CCH) ¶50,475 (U.S. Claims Ct. July 1, 2009): Plaintiff, the Henry E. and Nancy Horton Bartels Trust for the Benefit of Cornell University ("Cornell Trust"), is a tax-exempt non ...
From Henry E. and Nancy Horton Bartels Trust for the Benefit of Cornell Univ. v. United States, 88 Fed. Cl. 105, 2009 U.S. Claims LEXIS 236, 2009-2 U.S. Tax Cas. (CCH) ¶50,475 (U.S. Claims Ct. July 1, 2009): Plaintiff, the…
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SLUSA Removal ≠ Complete Preemption — Removal Requires Only Consent of, Not Signatures from, All Defendants (Circuit Split) — After Dismissing SLUSA-Precluded Claim, Remand Appropriate — Quasi-Appraisal — Good Quote

From Proctor v. Vishay Intertechnology, Inc., 2009 U.S. App. LEXIS 22254 (9th Cir. 2009): [Quasi-Appraisal] "Quasi-appraisal" is a term of art under Delaware corporations law.... Where the statutory appraisal remedy will not make a plaintiff whole—for example, when a plaintiff has been "wrongfully deprived, e ...
From Proctor v. Vishay Intertechnology, Inc., 2009 U.S. App. LEXIS 22254 (9th Cir. 2009): [Quasi-Appraisal] “Quasi-appraisal” is a term of art under Delaware corporations law…. Where the statutory appraisal remedy will not make a plaintiff whole—for example, when a plaintiff…
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Recent Posts

RICO Pattern: No Closed-Ended Continuity If Racketeering Activity Lasted Less Than One Year (11th Circuit) — Conspiracy Allegations Governed by Rule 8(a), Not 9(b) — Two Paths to Establishing A RICO Conspiracy: Agreement to Objective Or to Commit 2 Predicate Acts — Plaintiff Need Not Show Reliance When The Predicate Acts Are Wire Fraud — In Dicta, 11th Circuit Intimates That Even If The Primary RICO Violation Allegations Fail, The RICO Conspiracy Allegations Might Survive, But Is Probably Talking About A Conspiracy to Commit The Predicate Acts

United States Trinity Energy Servs., L.L.C. v. Se. Directional Drilling, L.L.C., 2025 U.S. App. LEXIS 10178 (5th Cir. Apr. 28, 2025): FRAP 38 Separate Motion Requirement FRAP 38 Sanctions Properly Denied for Want of Separate Motion — Request in Brief Insufficient — “Manifest Disregard” Is Not A Freestanding Ground for Vacatur of Arbitration Award in Fifth Circuit (Or First, Eighth Or Eleventh)

§ 1927 Sanctions Apt for Failing to Withdraw Claim Until Summary Judgment Hearing, Requiring Opponent and Court to Prepare for An Abandoned Argument — Bad Faith Established by False and Misleading Statements to Court — Raising New Argument for First Time in Reply Brief Does Not Warrant § 1927 Sanctions

RICO: Mail and Wire Fraud: Act of Emailing Transcript of Court Proceedings Containing Allegedly False Statements Made in Court ≠ Wire Fraud — Mailing (Serving on Opposing Party) Declarations Allegedly Containing False Statements ≠ Mail Fraud

Supreme Court: (1) Rule 11 Sanctions Available Where Affirmative Defense “Obviously Applies” and Plaintiff/Plaintiff’s Counsel “Lack A Good Faith Basis to Believe Otherwise” — (2) If Affirmative Defense Pled, Court May Require Plaintiff to File a Reply to the Answer Pursuant to Fed. R. Civ. P. 7(a) Setting forth “Specific, Nonconclusory Factual Allegations” Showing That The Affirmative Defense Does Not Apply — (3) The Title of a Statute And The Heading of a Section May Properly Be Used to Interpret the Text

FRAP 38 Sanctions — Sixth Circuit Usually Declines to Impose FRAP 38 Sanctions Unless An Improper Purpose Was Behind the Appeal

FRAP 38: Permissible for Appeals Court to Affirm Sanctions But Deny FRAP 38 Sanctions for Appeal — A Defendant’s Voluntary Cessation of Complained of Behavior Does Not Moot a Case Unless It Is Clear That The Behavior Could Not Reasonably Be Expected to Recur

Rule 11: Violation of 21 Day Safe Harbor “Overlook[ed]” As Non-Prejudicial by First Circuit — “Rule 11 Monetary Sanctions Must Be Reasonable” (Good Quote) — Rule 11(c)(4) Requires Consideration of Offender’s Ability to Pay

Temporary Restraining Order = Preliminary Injunction: 3 Supreme Court Cases (TRO=PI x 3)

Rule 37(c)(1) Sanctions — Exclusion of Untimely Expert Report — Eighth Circuit’s 4-Factor Test

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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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