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

Interlocutory Appeal under 28 U.S.C. § 1292(b) — Merely Because Issue is One of First Impression Does Not Necessarily Mean that There Is a Substantial Ground for Difference of Opinion

From Stuart v. RadioShack Corp., 2009 U.S. Dist. LEXIS 57963 (N.D. Cal. June 25, 2009): [T]here are three factors that a trial court considers in determining whether certification of an interlocutory appeal is appropriate [under 28 U.S.C. § 1292(b)]: (1) whether the moving party seeks to appeal an order involving a controlling question ...
From Stuart v. RadioShack Corp., 2009 U.S. Dist. LEXIS 57963 (N.D. Cal. June 25, 2009): [T]here are three factors that a trial court considers in determining whether certification of an interlocutory appeal is appropriate [under 28 U.S.C. § 1292(b)]: (1)…
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RICO — Proximate and Intervening Cause as Matters of Law for the Court

From Ideal Steel Supply Corp. v. Anza, 2009 U.S. Dist. LEXIS 55233 (S.D.N.Y. June 30, 2009): When factors other than the defendant's alleged misconduct are an intervening direct cause of a plaintiff's injury, that injury cannot be said to have occurred by reason of the defendant's actions. See McLaughlin v. Am. Tobacco Co., 522 F. ...
From Ideal Steel Supply Corp. v. Anza, 2009 U.S. Dist. LEXIS 55233 (S.D.N.Y. June 30, 2009): When factors other than the defendant’s alleged misconduct are an intervening direct cause of a plaintiff’s injury, that injury cannot be said to have…
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Contractual Warranties under New York Law — Reliance on Warranty Despite Knowledge of Falsity of Warranted Information Permitted

From Wells Fargo Bank, N.A. v. LaSalle Bank N.A., 2009 U.S. Dist. LEXIS 57812 (S.D. Ohio July 7, 2009): Although both parties have moved for summary judgment, these are not true cross-motions. See Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d §2720 (1998), on the situation where parties make cross-motions for summary j ...
From Wells Fargo Bank, N.A. v. LaSalle Bank N.A., 2009 U.S. Dist. LEXIS 57812 (S.D. Ohio July 7, 2009): Although both parties have moved for summary judgment, these are not true cross-motions. See Wright, Miller & Kane, Federal Practice and…
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Absent Class Members’ Right of Access to Class Counsel’s Files Depends on Their Stake in the Outcome and Demonstrable Need for the Materials

Updating our post of December 28, 2007 (reporting the intermediate appellate court's decision): From Wyly v. Milberg Weiss Bershad & Schulman, LLP, 12 N.Y.3d 400 (N.Y. Ct. App. 2009): Petitioner Sam Wyly was an absent class member in a federal securities class action lawsuit; an absent class member is a member of a putative or certified ...
Updating our post of December 28, 2007 (reporting the intermediate appellate court’s decision): From Wyly v. Milberg Weiss Bershad & Schulman, LLP, 12 N.Y.3d 400 (N.Y. Ct. App. 2009): Petitioner Sam Wyly was an absent class member in a federal…
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“Settlement Payment” Doctrine — Exemption from Bankruptcy Avoidance — Extends to Privately-Traded Securities Acquired in Leveraged Buyout; Caselaw Split

From QSI Holdings, Inc. v. Alford, 2009 U.S. App. LEXIS 14744 (6th Cir. July 6, 2009): In this appeal, we must determine whether § 546(e) of the Bankruptcy Code applies to privately traded securities. If that is indeed the case, then the settlement payments made to defendant shareholders are exempt from avoidance. This is an issue of ...
From QSI Holdings, Inc. v. Alford, 2009 U.S. App. LEXIS 14744 (6th Cir. July 6, 2009): In this appeal, we must determine whether § 546(e) of the Bankruptcy Code applies to privately traded securities. If that is indeed the case,…
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Dismissal of State Law Claim for Lack of Subject Matter Jurisdiction — with State Court Remaining an Open Alternative — Is Not a Favorable Termination Permitting an Award of Costs under Fed.R.Civ.P. 54(d)

From Adams v. Monumental Gen. Cas. Co., 2009 U.S. Dist. LEXIS 55194 (M.D. Ga. June 30, 2009), a Class Action Fairness Act (“CAFA”) action in which class certification was denied and the Court declined to exercise supplemental jurisdiction: Presently pending before the Court is Plaintiff's Motion to Strike Defendant's Bill of Costs.... ...
From Adams v. Monumental Gen. Cas. Co., 2009 U.S. Dist. LEXIS 55194 (M.D. Ga. June 30, 2009), a Class Action Fairness Act (“CAFA”) action in which class certification was denied and the Court declined to exercise supplemental jurisdiction: Presently pending…
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Sanctions under the PSLRA — Error Not to Consider Viability of Each Plaintiff’s Claim against Each Defendant — Attorneys’ Fees for Entire Litigation Awarded

From Ledford v. Peeples, 568 F.3d 1258 (11th Cir. 2009): In this case, two parties, X and Y, each owned a fifty percent interest in a limited liability company that manufactured and sold carpets. X provided the financing; Y ran the company and marketed its product. The parties had a buy-sell agreement that enabled either party to buy ou ...
From Ledford v. Peeples, 568 F.3d 1258 (11th Cir. 2009): In this case, two parties, X and Y, each owned a fifty percent interest in a limited liability company that manufactured and sold carpets. X provided the financing; Y ran…
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Limits of the Sham Affidavit Doctrine

From Concordance Corp. v. Amazon.com, Inc., 2009 U.S. Dist. LEXIS 55359 (D.Del. June 30, 2009): "A sham affidavit is a contradictory affidavit that indicates only that the affiant cannot maintain a consistent story or is willing to offer a statement solely for the purpose of defeating summary judgment." [Jiminex v. All Am. Rathskell ...
From Concordance Corp. v. Amazon.com, Inc., 2009 U.S. Dist. LEXIS 55359 (D.Del. June 30, 2009): “A sham affidavit is a contradictory affidavit that indicates only that the affiant cannot maintain a consistent story or is willing to offer a statement…
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Evidence of Spoliation Admissible to Show Consciousness of Guilt under Fed.R.Evid. 404(b)

From United States v. Anderson, 2009 U.S. App. LEXIS 12532 (6th Cir. May 26, 2009): Next, Remble contends that the district court erred by *** admitting testimony that Remble had attempted to bribe a witness, Antwan Atkins, into not testifying at trial. *** The district court ... did not err in permitting Atkins to testify that ...
From United States v. Anderson, 2009 U.S. App. LEXIS 12532 (6th Cir. May 26, 2009): Next, Remble contends that the district court erred by *** admitting testimony that Remble had attempted to bribe a witness, Antwan Atkins, into not testifying…
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Sanctions — Blame-Shifting — Good Quote and an 1871 Cartoon

From Ameriquest Mortgage Co. v. U.S. Bankruptcy Court, 2009 U.S. Dist. LEXIS 44835 (D. Mass. May 26, 2009) (Young, J.) Oscar Wilde once said "It's not whether you win or lose, it's how you place the blame." This case presents the unedifying spectacle of a litigant and its lawyers engaging in egregious misrepresentations and, now that the ...
From Ameriquest Mortgage Co. v. U.S. Bankruptcy Court, 2009 U.S. Dist. LEXIS 44835 (D. Mass. May 26, 2009) (Young, J.) Oscar Wilde once said “It’s not whether you win or lose, it’s how you place the blame.” This case presents…
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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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