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

Termination of Employment of Non-Party for Dishonesty Admitted under Rule 608

From EEOC v. Whirlpool Corp., 2009 U.S. Dist. LEXIS 50844 (M.D. Tenn. June 15, 2009): This is a Title VII action alleging sexual and racial hostile work place harassment. Plaintiff Equal Employment Opportunity Commission ("EEOC") and Intervenor Plaintiff Carlota Freemen ("Freemen") (collectively, "Plaintiffs") allege that Willie Baker (" ...
From EEOC v. Whirlpool Corp., 2009 U.S. Dist. LEXIS 50844 (M.D. Tenn. June 15, 2009): This is a Title VII action alleging sexual and racial hostile work place harassment. Plaintiff Equal Employment Opportunity Commission (“EEOC”) and Intervenor Plaintiff Carlota Freemen…
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The Odds Against a Civil RICO Plaintiff: Statistics

From Gross v. Waywell, 628 F. Supp. 2d 475 (S.D.N.Y.  2009): Not surprisingly, RICO's enchantment, like the siren's song, has again drawn another crew of spellbound plaintiffs foundering against the rocks. This outcome should come as no surprise to any counsel versed in the formidable intricacies and pitfalls inherent in RICO ...
From Gross v. Waywell, 628 F. Supp. 2d 475 (S.D.N.Y.  2009): Not surprisingly, RICO's enchantment, like the siren's song, has again drawn another crew of spellbound plaintiffs foundering against the rocks. This outcome should come as no surprise to any…
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When Loss of Earnings May, and May Not, Be Recovered under RICO

From Kalomiris v. Monroe County Syndicate, 2009 U.S. Dist. LEXIS 1264 (M.D. Pa. Jan. 8, 2009): RICO requires that the plaintiff sustain injury to "business or property." 18 U.S.C. § 1964(c). Personal injuries, loss of earnings, and other indirect injuries do not confer standing under RICO. See Anderson v. Ayling, 396 F.3d 265, ...
From Kalomiris v. Monroe County Syndicate, 2009 U.S. Dist. LEXIS 1264 (M.D. Pa. Jan. 8, 2009): RICO requires that the plaintiff sustain injury to “business or property.” 18 U.S.C. § 1964(c). Personal injuries, loss of earnings, and other indirect injuries…
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Sanctions Denied Where Rule 11 Motion Served More Than a Year Before It Was Filed —Despite Absence of Time Limit in Rule, Perhaps Too Long a Delay in Filing

From Rural Water Dist. No. 4 v. City of Eudora, 2009 U.S. Dist. LEXIS 50293 (D. Kan. June 16, 2009): Plaintiff moves for Rule 11 sanctions against defendant City of Eudora, Kansas, arguing that defendant filed its counterclaim with no legitimate factual basis upon which to rely. Plaintiff claims that the defendant acted in bad faith in m ...
From Rural Water Dist. No. 4 v. City of Eudora, 2009 U.S. Dist. LEXIS 50293 (D. Kan. June 16, 2009): Plaintiff moves for Rule 11 sanctions against defendant City of Eudora, Kansas, arguing that defendant filed its counterclaim with no…
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Experts — When an Evidentiary Daubert Hearing Is Unnecessary

From Capellupo v. Nassau Health Care Corp., 2009 U.S. Dist. LEXIS 50523 (E.D.N.Y. June 16, 2009): Although a Rule 104(a) pretrial evidentiary hearing is often necessary to address Daubert issues, such hearings are unnecessary if the objections to the testimony being raised do not turn on factual issues and, thus, can be decided bas ...
From Capellupo v. Nassau Health Care Corp., 2009 U.S. Dist. LEXIS 50523 (E.D.N.Y. June 16, 2009): Although a Rule 104(a) pretrial evidentiary hearing is often necessary to address Daubert issues, such hearings are unnecessary if the objections to the testimony…
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Excusable Neglect (Untimeliness) — Factors — Departure from Local Rules

The defense filed two motions for summary judgment in Nesselrotte v. Allegheny Energy, Inc., 2009 U.S. Dist. LEXIS 8232 (W.D. Pa. Jan. 30, 2009), and plaintiffs’ counsel failed to respond in a timely fashion to one of the two statements of undisputed material facts (“SUMF”), filed pursuant to local rule in connection with the motions. Plaintiffs’ cou ...
The defense filed two motions for summary judgment in Nesselrotte v. Allegheny Energy, Inc., 2009 U.S. Dist. LEXIS 8232 (W.D. Pa. Jan. 30, 2009), and plaintiffs’ counsel failed to respond in a timely fashion to one of the two statements…
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Judicial Review of Presidential Proclamations under the Administrative Procedure Act

From Western Watersheds Project v. Bureau of Land Management, 2009 U.S. Dist. LEXIS 50382 (D. Ariz. June 12, 2009): [Footnote 2] The Court emphasizes that this is a unique case; it is one of first impression. The Court has discovered no case in which the plaintiff's claims for relief were asserted solely under a presiden ...
From Western Watersheds Project v. Bureau of Land Management, 2009 U.S. Dist. LEXIS 50382 (D. Ariz. June 12, 2009): [Footnote 2] The Court emphasizes that this is a unique case; it is one of first impression. The Court has discovered…
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Family Members in Family-Owned Business Owe Fiduciary Duties to Each Other

From Braddock v. Braddock, 60 A.D.3d 84871 N.Y.S.2d 68 (1st Dept. 2009): [S]ince David and John are cousins, John's reliance on David's good faith may be found to be reasonable even where it might not be reasonable in the context of an arm's length transaction with a stranger. Family members stand in a fiduciary relationship toward on ...
From Braddock v. Braddock, 60 A.D.3d 84871 N.Y.S.2d 68 (1st Dept. 2009): [S]ince David and John are cousins, John’s reliance on David’s good faith may be found to be reasonable even where it might not be reasonable in the context…
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Grable-Based Federal Jurisdiction Not Conferred by Potentially Unconstitutional Punitive Damages Claim Authorized by State Statute

From Sullivan v. Novartis Pharm. Corp., 602 F. Supp. 2d 527 (D.N.J. 2009): Just one year after Grable [& Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 125 S. Ct. 2363, 162 L. Ed. 2d 257 (2005)] was decided, the Supreme Court had occasion to explore the considerations underlying that decision. See Empire He ...
From Sullivan v. Novartis Pharm. Corp., 602 F. Supp. 2d 527 (D.N.J. 2009): Just one year after Grable [& Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 125 S. Ct. 2363, 162 L. Ed. 2d 257…
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Notice of Appeal of Final Judgment Preserves for Review All Interlocutory Orders, Incluiding Order Excluding Expert Testimony under Rules 26(a)(2)(B) and 37(c)(1)

From Martinez-Serrano v. Quality Health Servs. of P.R., 2009 U.S. App. LEXIS 12302 (1st Cir. June 8, 2009): On appeal, the plaintiffs maintain that the district court ... abused its discretion in precluding Dr. Colon's expert.... A. Expert Testimony. Before considering the plaintiffs' preclusion claim, we must de ...
From Martinez-Serrano v. Quality Health Servs. of P.R., 2009 U.S. App. LEXIS 12302 (1st Cir. June 8, 2009): On appeal, the plaintiffs maintain that the district court … abused its discretion in precluding Dr. Colon’s expert…. A. Expert Testimony. Before…
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Recent Posts

New York Law Firm That Advised Florida Resident for Years Subject to Personal Jurisdiction in Florida, Thus Subject to 28 U.S.C. § 1782 in Florida — Court Cannot Amend Protective Order Following Dismissal of Case Unless the Order Retains Jurisdiction Post-Dismissal — Parties Can Enforce Stipulated Protective Order Post-Dismissal Through Breach of Contract Action

Rule 37(e)/Spoliation — “Intent to Deprive” Determined under the Preponderance of the Evidence Standard — Court May Make Determination Or Allow Jury to Do So — Lesser “Culpable Conduct” Standard of Residential Funding Continues to Apply in Second Circuit Outside ESI Context — Once Judge Has Definitively Ruled on the Record Denying A Requested Instruction, Counsel Is Not Required to Object to the Charge Again at Trial to Preserve Issue for Appeal

Rule 11 (9011) and Inherent Power Sanctions for “Unapologetic [Refusal to Apologize] Defiance” of Court’s Rules and Orders — Advising Client to Take Steps That Same Judge Had Told Lawyer Were Improper in Prior Case — Obstinate Recidivism — Silence upon Withdrawal of Motion As Rule 11 (9011) Violation (Noted But Not Addressed on Appeal)

Rule 37 Sanctions Properly Denied for Failure to Produce Documents That Were Already in the Requester’s Possession And Were Not Relevant to The Principal Issue in the Lawsuit — Experts/Daubert: Exclusion Appropriate Where Opinion Was Predicated on Erroneous Assumptions of Law

Supreme Court: Obtaining a Preliminary Injunction Does Not Render the Plaintiff a “Prevailing Party” Entitled to Attorney’s Fees — Must Win “Enduring Relief” On The Merits From A Judicial Order — Extraneous Events, Like Legislation, That Preserve The Outcome And Moot The Lawsuit Do Not Turn The Plaintiff into A Prevailing Party (Note, However, That A Defendant Need Not Obtain A Favorable Judgment On The Merits In Order To Be A “Prevailing Party”)

Supreme Court: When A Plaintiff Amends The Complaint To Delete The Federal-Law Claims That Enabled Removal To Federal Court, Leaving Only State-Law Claims, The Federal Court Loses Supplemental Jurisdiction, And The Case Must Be Remanded To State Court

Supreme Court: A Rule 41(a) Voluntary Dismissal Without Prejudice = A Final Proceeding Within Rule 60(b) — Advisory Committee Notes Are “A Reliable Source Of Insight Into The Meaning Of A Rule” — Prior to Dismissal or Entry of Judgment, A District Court May Always Rehear and Reconsider Prior Rulings

Rule 37(c)(1) Sanctions — Exclusion of Untimely Expert Report — Burden Is On Noncompliant Party to Prove Harmlessness — Court Need Not Hold Hearing If Noncompliant Party Fails to Argue Harmlessness, Even When Exclusion Is Tantamount to Dismissal

RICO: (1) Continuity: 4th Circuit Factors — (2) 4th Circuit Reserves RICO Liability for Unlawful Activities That Pose A Special Threat to Social Well-Being — (3) For Purposes of Determining Closed-Ended Continuity, Even Time-Barred Conduct Considered — (4) No Open-Ended Continuity If Racketeering Activity Has Built-In Ending Point — (5) Unlike General Federal Conspiracy, RICO Conspiracy Doesn’t Require Each Defendant to Perform an Overt Act in Furtherance of the Conspiracy

Whether Party Waived Arbitration by Litigating Is a Question for the Court, Not the Arbitrator

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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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