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

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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Public Records on Dismissal Motions — Eighth Circuit

From Vacanti v. Sunset Fin. Servs., Inc., 2009 U.S. Dist. LEXIS 23173 (D. Neb. Mar. 23, 2009): In deciding the issues raised by the Motion to Dismiss, the Court is "not precluded in [its] review of the complaint from taking notice of items in the public record." Papasan v. Allain, 478 U.S. 265, 269 n. 1, 106 S. Ct. 2932, 92 L. Ed ...
From Vacanti v. Sunset Fin. Servs., Inc., 2009 U.S. Dist. LEXIS 23173 (D. Neb. Mar. 23, 2009): In deciding the issues raised by the Motion to Dismiss, the Court is “not precluded in [its] review of the complaint from taking…
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Supreme Court Decisions Affecting Federal Civil Practice — 2009

A new article on the Recent Articles page (Supreme Court on Civil Practice 2009) analyzes the four most significant Supreme Court decisions this term affecting federal civil practice. ...
A new article on the Recent Articles page (Supreme Court on Civil Practice 2009) analyzes the four most significant Supreme Court decisions this term affecting federal civil practice.
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Reverse 404(b) Evidence — Character of Non-Party

From United States v. Duran-Moreno, 2009 U.S. Dist. LEXIS 47150 (D.N.M. April 20, 2009): The United States Court of Appeals for the Tenth Circuit has held that rule 404(b)'s prohibition applies to a defendant who wishes to introduce evidence of wrongdoing by another to establish his innocence. See United States v. Puckett, 692 F.2 ...
From United States v. Duran-Moreno, 2009 U.S. Dist. LEXIS 47150 (D.N.M. April 20, 2009): The United States Court of Appeals for the Tenth Circuit has held that rule 404(b)’s prohibition applies to a defendant who wishes to introduce evidence of…
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Experts — Reliance on the Reports of Others

From City of Gary v. Shafer, 2009 U.S. Dist. LEXIS 47113 (N.D. Ind. June 2, 2009): An expert's opinion should not be rejected as unreliable simply because the expert relied on the reports of others. Walker v. Soo Line R. Co., 208 F.3d 581, 588 (7th Cir. 2000). Rather, experts may rely on data and other information that is supplie ...
From City of Gary v. Shafer, 2009 U.S. Dist. LEXIS 47113 (N.D. Ind. June 2, 2009): An expert’s opinion should not be rejected as unreliable simply because the expert relied on the reports of others. Walker v. Soo Line R.…
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American Pipe — Unlike Equitable Tolling Doctrines — Does Toll Statutes of Repose

From Arivella v. Lucent Techs., Inc., 2009 U.S. Dist. LEXIS 48591 (D. Mass. June 8, 2009): Relying primarily on Lampf v. Gilbertson, 501 U.S. 350, 363 (1991), Lucent suggests in its motion that "a statute of repose [like ERISA § 413(1)] may not be judicially tolled" ... and that consequently the plaintiffs' claims are untimely. ...
From Arivella v. Lucent Techs., Inc., 2009 U.S. Dist. LEXIS 48591 (D. Mass. June 8, 2009): Relying primarily on Lampf v. Gilbertson, 501 U.S. 350, 363 (1991), Lucent suggests in its motion that “a statute of repose [like ERISA §…
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RICO — Nationwide Jurisdiction under 18 U.S.C. § 1965 — Circuit Split

The plaintiff in Allstate Ins. Co. v. Plambeck, 2009 U.S. Dist. LEXIS 10302 (N.D. Tex. Jan. 30, 2009), brought this civil RICO action against chiropractors who allegedly submitted fraudulent bills and attorneys allegedly involved in the fraudulent scheme. Only one defendant resided in the district: Most courts have interpreted [18 U.S.C. ...
The plaintiff in Allstate Ins. Co. v. Plambeck, 2009 U.S. Dist. LEXIS 10302 (N.D. Tex. Jan. 30, 2009), brought this civil RICO action against chiropractors who allegedly submitted fraudulent bills and attorneys allegedly involved in the fraudulent scheme. Only one…
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Inherent Power Sanctions for Failure to Comply with Scheduling Order Do Not Require Showing of Bad Faith

From Washburn v. Morgado, 2009 U.S. App. LEXIS 11282 (9th Cir. May 4, 2009): Here, both parties wrote letters to Judge White informing him that they had been unable to meet the court's pretrial scheduling deadlines. He issued a written order stating that their final pretrial conference was cancelled and, in its place, the court would con ...
From Washburn v. Morgado, 2009 U.S. App. LEXIS 11282 (9th Cir. May 4, 2009): Here, both parties wrote letters to Judge White informing him that they had been unable to meet the court’s pretrial scheduling deadlines. He issued a written…
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Recent Posts

RICO Complaint Fails to Confer Federal Question Jurisdiction Where Its Allegations Totally Implausible, Attenuated, Unsubstantial, Frivolous, Devoid Of Merit, Or No Longer Open To Discussion — Subject to Rule 12(b)(1) for Lack of Subject Matter Jurisdiction

Inherent Power Sanctions — Dismissal — Abuse of Discretion Review Is “More Exacting” When Judge is “Accuser, Fact Finder and Sentencing Judge All in One” — Client Responsible for Her Lawyer’s Discovery Defalcations — No Need for Evidentiary Hearing When Sanctions Based Entirely on an Established Record — Lesser Sanctions Reasonably Determined to be Ineffective Given Record of Repeated Discovery Abuses

Inherent Power Sanction of Dismissal for Fraud on the Court — Fabrication of Evidence and Lying about It to the Court — 2-Part Test for Dismissal Sanction (Eleventh Circuit) — Whether Fraud on Court Was Committed for the Court, Not a Jury

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

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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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