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

Federal Arbitration Act Precludes Parties from Contracting under State Law for Broader Judicial Review Once Motion to Vacate Is Removed, Provided FAA Applies

From McQueen-Starling v. UnitedHealth Group, Inc., 2009 U.S. Dist. LEXIS 23266 (S.D.N.Y. Mar. 20, 2009): In Hall Street Assocs., LLC v. Mattel, Inc., 128 S. Ct. 1396 (2008), the Supreme Court addressed the question of whether parties could supplement by contract the statutory grounds for vacating an arbitration award provided in th ...
From McQueen-Starling v. UnitedHealth Group, Inc., 2009 U.S. Dist. LEXIS 23266 (S.D.N.Y. Mar. 20, 2009): In Hall Street Assocs., LLC v. Mattel, Inc., 128 S. Ct. 1396 (2008), the Supreme Court addressed the question of whether parties could supplement by…
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CAFA — Third Circuit Defines Local Controversy Elements — Jurisdiction Assessed Based on Defendants Remaining in Action — Plaintiff Bears Burden of Proving Lack of Federal Jurisdiction

From Kaufman v. Allstate N.J. Ins. Co., 2009 U.S. App. LEXIS 6429 (3d Cir. Mar. 26, 2009): The Class Action Fairness Act of 2005 (CAFA) confers jurisdiction on federal courts over certain class actions in which any defendant and any class member are citizens of different states. 28 U.S.C. § 1332(d)(2). CAFA further enables any defendan ...
From Kaufman v. Allstate N.J. Ins. Co., 2009 U.S. App. LEXIS 6429 (3d Cir. Mar. 26, 2009): The Class Action Fairness Act of 2005 (CAFA) confers jurisdiction on federal courts over certain class actions in which any defendant and any…
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RICO — Materiality Not an Element of Mail Fraud —Standing Need Not be Pled with Specificity

From Myrus Hack, LLC v. McDonald’s Corp., 2009 U.S. Dist. LEXIS 25765 (D.N.J. Mar. 27, 2009): The Supreme Court teaches that "mail fraud requires two elements — (1) having devised or intending to devise a scheme to defraud (or to perform specified fraudulent acts), and (2) use of the mail for the purpose of executing, or attempting to e ...
From Myrus Hack, LLC v. McDonald’s Corp., 2009 U.S. Dist. LEXIS 25765 (D.N.J. Mar. 27, 2009): The Supreme Court teaches that “mail fraud requires two elements — (1) having devised or intending to devise a scheme to defraud (or to…
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Ethics — Advocate-Witness Rule Warrants Denial of Pro Hac Vice Application and Exclusion from Representation during Pretrial as Well as Trial Proceedings

From Grant v. Kamehameha Schools, 2009 U.S. Dist. LEXIS 26196 (D. Haw. Mar. 30, 2009): Hawaii Rule of Professional Conduct 3.7(a) provides: A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where: (1) the testimony relates to an unconteste ...
From Grant v. Kamehameha Schools, 2009 U.S. Dist. LEXIS 26196 (D. Haw. Mar. 30, 2009): Hawaii Rule of Professional Conduct 3.7(a) provides: A lawyer shall not act as advocate at a trial in which the lawyer is likely to be…
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Sanctions — Misconduct of Counsel Should Not Be Visited on Client Absent Evidence of Client Participation

From In re Central European Indus. Dev. Co., 2009 Bankr. LEXIS 639 (N.D. Cal. Bankr. Jan. 13, 2009): [I]n the context of [Bankruptcy] Rule 9011 sanctions, courts generally disfavor sanctioning a party for its counsel's misconduct unless the party itself is somehow implicated. Shepherd v. Am. Broad. Companies, Inc., 62 F.3d 1469, ...
From In re Central European Indus. Dev. Co., 2009 Bankr. LEXIS 639 (N.D. Cal. Bankr. Jan. 13, 2009): [I]n the context of [Bankruptcy] Rule 9011 sanctions, courts generally disfavor sanctioning a party for its counsel’s misconduct unless the party itself…
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Experts — Guilty Knowledge and Criminal Intent Are Matters of Fact, Not Law, and Proper Topics of Expert Testimony

From United States v. Johnston, , 2009 U.S. App. LEXIS 6981 (11th Cir. Mar. 30, 2009): We also reject Johnston's argument that the experts improperly testified to legal conclusions. Although experts may not testify to legal conclusions, "testimony in the form of an opinion or inference otherwise admissible is not objectionable because it ...
From United States v. Johnston, , 2009 U.S. App. LEXIS 6981 (11th Cir. Mar. 30, 2009): We also reject Johnston’s argument that the experts improperly testified to legal conclusions. Although experts may not testify to legal conclusions, “testimony in the…
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Email Evidence — Attachments to Authenticated Emails Are Themselves Authenticated

From Madison Holdings, LLC v. Punch Int’l, NV, 2009 U.S. Dist. LEXIS 27406 (S.D. Tex. Mar. 31, 2009): Plaintiffs also object to documents attached to Maes' executed declaration filed on June 30, 2008. Specifically, Plaintiffs object to an email from Vandekerckhove to Maes dated July 14, 2004, a certified translation of the email, and ...
From Madison Holdings, LLC v. Punch Int’l, NV, 2009 U.S. Dist. LEXIS 27406 (S.D. Tex. Mar. 31, 2009): Plaintiffs also object to documents attached to Maes’ executed declaration filed on June 30, 2008. Specifically, Plaintiffs object to an email from…
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No Private Right of Action for Violation of State or Federal Rule of Civil Procedure

From Shahin v. Darling, 2009 U.S. Dist. LEXIS 26956 (D.Del. Mar. 31, 2009): Although not addressed by Delaware courts, other state courts have determined that alleged violations of state rules of civil procedure do not create a basis for civil liability. See Douglas v. Anson Fin., Inc., Civ. No. 2-05-283-CV, 2006 WL 820402 (Tex. C ...
From Shahin v. Darling, 2009 U.S. Dist. LEXIS 26956 (D.Del. Mar. 31, 2009): Although not addressed by Delaware courts, other state courts have determined that alleged violations of state rules of civil procedure do not create a basis for civil…
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Failure to Defend Claims Attacked by Motion to Dismiss Constitutes Abandonment — General Request that Motion Be Denied Is Insufficient

From Wright v. Brae Burn Country Club, Inc., 2009 U.S. Dist. LEXIS 26492 (S.D.N.Y. Mar. 20, 2009): When one party fails to respond to an opposing party's arguments that its claim must be dismissed, the claim may be deemed abandoned. See Brodsky v. Trumbull Bd. of Educ., No. 06 Civ. 1947 (PCD), 2009 WL 230708, at *9 (D. Conn. Jan. ...
From Wright v. Brae Burn Country Club, Inc., 2009 U.S. Dist. LEXIS 26492 (S.D.N.Y. Mar. 20, 2009): When one party fails to respond to an opposing party’s arguments that its claim must be dismissed, the claim may be deemed abandoned.…
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Circuit Splits on Issues of Federal Procedure: New Article

A new article on the Recent Articles page (Circuit Splits) explores persisting splits among the Circuits on selected, significant issues of removal, deposition procedure, arbitration, and statutes of limitations. ...
A new article on the Recent Articles page (Circuit Splits) explores persisting splits among the Circuits on selected, significant issues of removal, deposition procedure, arbitration, and statutes of limitations.…
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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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