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

Issuer Owes No Contractual Duty to Noteholders to File Timely Reports with SEC — Fifth Circuit Agrees with Eighth

From Affiliated Computer Servs., Inc. v. Wilmington Trust Co., 2009 U.S. App. LEXIS 8011 (5th Cir. April 16, 2009): Section 314(a) of the TIA [Turst Indenture Act] requires an issuer of bonds to file with the trustee copies of the annual reports which it is "required to file" with the SEC. See 15 U.S.C. § 77nnn(a). The Indentur ...
From Affiliated Computer Servs., Inc. v. Wilmington Trust Co., 2009 U.S. App. LEXIS 8011 (5th Cir. April 16, 2009): Section 314(a) of the TIA [Turst Indenture Act] requires an issuer of bonds to file with the trustee copies of the…
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RICO — Competitor Not Proximately Injured by Defendant Hospitals’ Fraudulently Inflated Medicare Billing of the Government

From Longmont United Hosp. v. St. Barnabas Corp., 2009 U.S. App. LEXIS 63 (3d Cir. Jan. 5, 2009): This case arises out of a purported scheme to defraud the federal government through the practice of "turbocharging." At its simplest level, the Saint Barnabas Corporation ("SBC"), through a consortium of hospitals that it owned and operated ...
From Longmont United Hosp. v. St. Barnabas Corp., 2009 U.S. App. LEXIS 63 (3d Cir. Jan. 5, 2009): This case arises out of a purported scheme to defraud the federal government through the practice of “turbocharging.” At its simplest level,…
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Ultimate Sanctions, Appellate Review and Evidence; Relationship of Inherent Power and Rule-Specific Sanctions

From Sentis Group, Inc. v. Shell Oil Co., 559 F.3d 888 (8th Cir. 2009): [Appellate Review of Ultimate Sanction] "[A]lthough we review the district court's discovery decisions for an abuse of discretion, we more closely scrutinize dismissal imposed as a discovery sanction because 'the opportunity to be heard is a litigant' ...
From Sentis Group, Inc. v. Shell Oil Co., 559 F.3d 888 (8th Cir. 2009): [Appellate Review of Ultimate Sanction] “[A]lthough we review the district court’s discovery decisions for an abuse of discretion, we more closely scrutinize dismissal imposed as a…
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Email Evidence — Authentication by Production in a Prior Action

From Phillip M. Adams & Assocs., LLC v. Dell, Inc., 2009 U.S. Dist. LEXIS 26964 (D. Utah Mar. 27, 2009)): As to the emails, ASUS says "Plaintiff has not submitted a sworn testimony that the emails attached as Exhibits A through D to its memorandum are authentic under Fed. R. Evid. 901, which requires a witness with "knowledge . . . that ...
From Phillip M. Adams & Assocs., LLC v. Dell, Inc., 2009 U.S. Dist. LEXIS 26964 (D. Utah Mar. 27, 2009)): As to the emails, ASUS says “Plaintiff has not submitted a sworn testimony that the emails attached as Exhibits A…
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Waiver of Work Product Protection by Production Pursuant to Grand Jury Subpoena and Understanding with Government

From United States v. Thompson, 2009 U.S. App. LEXIS 8087 (D.C. Cir. April 17, 2009): This is a third-party appeal of a discovery order in a criminal case compelling the government to produce "all materials disclosed" by the third party pursuant to its cooperation with federal investigators during a criminal investigation of the third par ...
From United States v. Thompson, 2009 U.S. App. LEXIS 8087 (D.C. Cir. April 17, 2009): This is a third-party appeal of a discovery order in a criminal case compelling the government to produce “all materials disclosed” by the third party…
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Public Records on Dismissal Motions — Eighth Circuit Standard

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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28 U.S.C. § 1404(a) and Electronically Aided Discovery

From Casana Furniture Co. v. Coaster Co. of Am., 2009 U.S. Dist. LEXIS 23141 (M.D.N.C. Mar. 24, 2009): [T]he location of relevant permanent records or other evidence has not yet been determined. But regardless of their location, any files, records, and documents that Coaster apparently keeps in California can be easily copied and transp ...
From Casana Furniture Co. v. Coaster Co. of Am., 2009 U.S. Dist. LEXIS 23141 (M.D.N.C. Mar. 24, 2009): [T]he location of relevant permanent records or other evidence has not yet been determined. But regardless of their location, any files, records,…
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Arbitration and Appraisal — Court Enforces Mandatory Appraisal Clause Even Though No Appraisers Exist Who Possess the Contractual Qualifications

From Singleton v. Grade A Market, Inc., 2009 U.S. Dist. LEXIS 31026 (D. Conn. April 13, 2009): The precise question presented in this case -- whether a clause in a lease agreement, which clause requires the parties to the lease to settle a rent dispute through appraisal, is rendered void by the unavailability of appraisers with the exact q ...
From Singleton v. Grade A Market, Inc., 2009 U.S. Dist. LEXIS 31026 (D. Conn. April 13, 2009): The precise question presented in this case — whether a clause in a lease agreement, which clause requires the parties to the lease…
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Spoliation of One Defendant’s Evidence by Consultant Retained by Joint Counsel Exposes All Jointly-Represented Co-Defendants to Sanctions

In United States v. Maxxam, Inc., 2009 U.S. Dist. LEXIS 30743 (N.D. Cal. Mar. 29, 2009), the plaintiff claimed that certain evidence in the possession of one defendant was spoliated by a consultant and that the spoliation was attributable to that defendant’s counsel. The same counsel also jointly represented two other defendants (the corporate parent and g ...
In United States v. Maxxam, Inc., 2009 U.S. Dist. LEXIS 30743 (N.D. Cal. Mar. 29, 2009), the plaintiff claimed that certain evidence in the possession of one defendant was spoliated by a consultant and that the spoliation was attributable to…
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E.D.N.Y. Denies Bear Stearns Prosecutors an Injunction Blocking a FINRA Arbitration that Will Disclose Relevant Evidence

From United States v. Fin. Indus. Reg. Auth., 2009 U.S. Dist. LEXIS 30485 (E.D.N.Y. April 9, 2009): A district court unquestionably has the authority under the All Writs Act, 28 U.S.C. § 1651(a), to enjoin proceedings that threaten to interfere with its jurisdiction over a pending criminal case. *** Determining whether to enjoin a ...
From United States v. Fin. Indus. Reg. Auth., 2009 U.S. Dist. LEXIS 30485 (E.D.N.Y. April 9, 2009): A district court unquestionably has the authority under the All Writs Act, 28 U.S.C. § 1651(a), to enjoin proceedings that threaten to interfere…
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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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