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

Improper Ex Parte Correspondence with Court — Intended to Influence Proceedings — Is a Sanctionable “Other Paper” within Rule 11

From Pritchard v. Dow Agro Sciences, 2009 U.S. Dist. LEXIS 53905 (W.D. Pa. June 25, 2009): The instant dispute arose from Plaintiff Robert Ted Pritchard's ("Mr. Pritchard") numerous ex parte communications with the Court and his dissemination of a letter containing allegedly defamatory communications regarding his former counsel an ...
From Pritchard v. Dow Agro Sciences, 2009 U.S. Dist. LEXIS 53905 (W.D. Pa. June 25, 2009): The instant dispute arose from Plaintiff Robert Ted Pritchard’s (“Mr. Pritchard”) numerous ex parte communications with the Court and his dissemination of a letter…
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Retroactive Agency Action — Cases of First Impression — Competing Validity Tests

From Networkip, LLC v. FCC, 548 F.3d 116 (D.C. Cir. 2008): Though agencies are entitled to deference, they may not retroactively change the rules at will. Indeed, that "[e]lementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly" has been well ...
From Networkip, LLC v. FCC, 548 F.3d 116 (D.C. Cir. 2008): Though agencies are entitled to deference, they may not retroactively change the rules at will. Indeed, that “[e]lementary considerations of fairness dictate that individuals should have an opportunity to…
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Whether Spoliation Was Committed in Bad Faith Is Properly Left to Jury in Jurisdictions in Which Bad Faith Is Prerequisite to an Adverse Inference Instruction

From University Med. Ctr., Inc. v. Beglin, 2009 Ky. App. Unpub. LEXIS 361 (Ky. Ct. App. Jan. 16, 2009): The Hospital's first argument is that the trial court erred by giving the following missing evidence instruction to the jury: If you find from the evidence that an incident report was in fact prepared by Nurse Ba ...
From University Med. Ctr., Inc. v. Beglin, 2009 Ky. App. Unpub. LEXIS 361 (Ky. Ct. App. Jan. 16, 2009): The Hospital’s first argument is that the trial court erred by giving the following missing evidence instruction to the jury: If…
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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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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)

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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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