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

PSLRA Mandates Rule 11 Inquiry Even If Securities Litigation Dismissed on State Law Grounds — Circuit May Make Determination without Remand

From Citibank Global Markets, Inc. v. Santana, 2009 U.S. App. LEXIS 15788 (1st Cir. July 17, 2009): The final question we must resolve is one of first impression in this circuit: whether the district court is required to make findings regarding compliance with Rule 11(b) of the Federal Rules of Civil Procedure, in a case in which a claim ...
From Citibank Global Markets, Inc. v. Santana, 2009 U.S. App. LEXIS 15788 (1st Cir. July 17, 2009): The final question we must resolve is one of first impression in this circuit: whether the district court is required to make findings…
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Willful Disobedience of Court Order Warrants Case-Ending Sanction Where Obedience Is within the Party’s Control

From Pray v. Michaels, 2008 U.S. App. LEXIS 27190 (9th Cir. Dec. 17, 2008): [T]he district court did not abuse its discretion in using its inherent powers to impose terminating sanctions on [Defendant] Soderberg. Willful disobedience of a court order may justify terminating sanctions. See Stars' Desert Inn Hotel & Country Club, Inc. ...
From Pray v. Michaels, 2008 U.S. App. LEXIS 27190 (9th Cir. Dec. 17, 2008): [T]he district court did not abuse its discretion in using its inherent powers to impose terminating sanctions on [Defendant] Soderberg. Willful disobedience of a court order…
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Expert Testimony into State of Mind or Motivation of an Individual as Inadmissible

“Inferences about the intent or motive of parties or others lie outside the bounds of expert testimony.” Highland Capital Mgmt., L.P. v. Schneider, 551 F. Supp.2d 173, 182 (S.D.N.Y. 2008) (excluding an expert’s testimony regarding various individuals’ beliefs as to, inter alia, the value of the securities at issue in that case, and holding that “ ...
“Inferences about the intent or motive of parties or others lie outside the bounds of expert testimony.” Highland Capital Mgmt., L.P. v. Schneider, 551 F. Supp.2d 173, 182 (S.D.N.Y. 2008) (excluding an expert’s testimony regarding various individuals’ beliefs as to,…
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Inherent Power Sanctions — Appeal Dismissed for Appellant’s Failure to Pay Sanction Imposed in Prior Action

From Smith v. United States, 2009 U.S. App. LEXIS 14736 (10th Cir. July 6, 2009): We dismiss the matter for Mr. Smith's failure to pay the sanctions we imposed in Smith v. C.I.R., 160 Fed. Appx. 666, 670 (10th Cir. 2005). *** This court ... previously imposed sanctions for Mr. Smith's "blatant waste of judicial time a ...
From Smith v. United States, 2009 U.S. App. LEXIS 14736 (10th Cir. July 6, 2009): We dismiss the matter for Mr. Smith’s failure to pay the sanctions we imposed in Smith v. C.I.R., 160 Fed. Appx. 666, 670 (10th Cir.…
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Government Website as Self-Authenticating

From Schaghticoke Tribal Nation v. Kempthorne, 2008 WL 4000179, at *3 (D. Conn. Aug. 26, 2008) :Petitioner's Exhibit 31, the press release issued by Representative Christopher Shays on March 12, 2004, may also be considered self-authenticating. Press releases by government authorities may be self-authenticating under Rule 902(5) as offic ...
From Schaghticoke Tribal Nation v. Kempthorne, 2008 WL 4000179, at *3 (D. Conn. Aug. 26, 2008) :Petitioner’s Exhibit 31, the press release issued by Representative Christopher Shays on March 12, 2004, may also be considered self-authenticating. Press releases by government…
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Spoliation — Trigger Date for Preservation Duty — Timeliness of Motion

From Goodman v. Praxair Servs., Inc., 2009 U.S. Dist. LEXIS 58263 (D. Md. July 7, 2009): [Trigger Date.] The mere existence of a dispute does not necessarily mean that parties should reasonably anticipate litigation or that the duty to preserve arises. See Treppel v. Biovail Corp., 233 F.R.D. 363, 371 (S.D.N. ...
From Goodman v. Praxair Servs., Inc., 2009 U.S. Dist. LEXIS 58263 (D. Md. July 7, 2009): [Trigger Date.] The mere existence of a dispute does not necessarily mean that parties should reasonably anticipate litigation or that the duty to preserve…
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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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Recent Posts

Inherent Power — Circumstantial Evidence — Fact That Bad Faith May Be Shown by Establishing That Conduct Was So Egregious It Was Necessarily Committed in Bad Faith Does Not Mean That Bad Faith Must Be The Sole Explanation for The Bad Conduct

RICO Causation: Testing Labs’ Misstatements As to Alcohol Tests’ Efficacy Not Communicated to Plaintiffs’ Employers Did Not Cause Plaintiffs’ Professional Harm

Supreme Court: Standing — When The Government Prohibits Or Impedes Company A from Using Company B’s Product, Both Are Objects of the Government’s Action And Have Standing to Contest It — “To Demonstrate Standing, Plaintiffs Must Answer A Basic Question—‘What’s It To You?’” (Good Quote) — Expert Evidence Not Required to Establish Standing — “Judges Are Not Required To Exhibit A Naiveté From Which Ordinary Citizens Are Free’” (Good Quote)

Rule 37(d) Sanctions — For Failure to Serve Answers, Objections, Or Written Response to Discovery Requests — Are Not Limited to Intentional Misconduct; Even Innocent Mistakes May Be Covered

Sanctions: (1) Rule 11 Does Not Apply to Litigation Papers Initially Filed in State Court — Only Reaffirmance in Federal Court Post-Removal Is Subject to Sanction — (2) “The Fact That A Legal Theory Is A Long-Shot Does Not Necessarily Mean It Is Sanctionable” (Good Quote)

Supreme Court: Relief under Rule 60(b)(6) Requires Extraordinary Circumstances Even If It Is Invoked to Allow Amendment of The Complaint–Rule 15’s Liberal Approach to Amendment Does Not Change That (Reversing Second Circuit)

FRAP 38 Sanctions — Eleventh Circuit Generally Does Not Impose FRAP 38 Sanctions on Pro Se Litigants, But May Do So If They Have Persisted Despite Judicial Warnings of Frivolousness

Inherent Power Sanctions: No Dismissal with Prejudice If Lesser Sanctions Will Suffice — The Liberal Pleading Standard of Swierkiewicz “Is Still Good Law”

Supreme Court: (1) Fraudulent Inducement Theory of Mail Fraud: Statute Violated If Victim Is Tricked into Parting with Money Or Property, Even If Victim Suffers No Pecuniary Loss — (2) “A Fraud Is Complete When The Defendant Has Induced The Deprivation Of Money Or Property Under Materially False Pretenses” — (3) The Old Soil Principle of Statutory Construction Applies Only to the Extent That a Common-Law Term Has Accumulated a Settled Meaning — (4) Rescission for Fraud Does Not Require Economic Loss; Sufficient If Property of A Different Character Or Condition Provided — i.e, If Victim Tricked into A Bargain Materially Different from The One Promised — (5) “At The Right Level Of Specificity, Anything Can Be Described As ‘Unique’ Or ‘Different From’ Something Else” (Good Quote) — (6) “Materiality Look[s] To The Effect On The Likely Or Actual Behavior Of The Recipient Of The Alleged Misrepresentation” (Good Quote)

Statements in Briefs As Judicial Admissions

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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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