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

Attorney-Client Privilege — Negligent Misrepresentation Claim Does Not Place “at Issue” Advice of Plaintiff’s Counsel, Which Is Relevant on the Issue of Plaintiff’s Reasonable Reliance

From Morande Auto. Group, Inc. v. Metropolitan Group, Inc., 2009 U.S. Dist. LEXIS 19804 (D. Conn. Mar. 12, 2009): According to Morande's Fourth Amended Complaint, Morande contracted with the General American defendants for services relating to the implementation of an Employee Stock Ownership Plan ("ESOP"). Although the General American ...
From Morande Auto. Group, Inc. v. Metropolitan Group, Inc., 2009 U.S. Dist. LEXIS 19804 (D. Conn. Mar. 12, 2009): According to Morande’s Fourth Amended Complaint, Morande contracted with the General American defendants for services relating to the implementation of an…
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Civility with Teeth — Inherent Power Sanctions for Failing to Inform Law Firm Defendants of Claim Before Suit — Statutorily-Authorized Fees Withheld

The plaintiff in Sahyers v. Prugh, Holliday & Karatinos, P.L., 2009 U.S. App. LEXIS 5037 (11th Cir. Mar. 3, 2009), was a paralegal suing her former law firm and its partners for failure to pay overtime required by the Fair Labor Standards Act, under which a prevailing plaintiff is entitled to an award of some reasonable attorney's fees and costs. 29 U.S.C. ...
The plaintiff in Sahyers v. Prugh, Holliday & Karatinos, P.L., 2009 U.S. App. LEXIS 5037 (11th Cir. Mar. 3, 2009), was a paralegal suing her former law firm and its partners for failure to pay overtime required by the Fair…
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Removal — State Court Pre-Suit Discovery Proceeding Not Removable Based on Diversity

From In re Enable Commerce, Inc., 2009 U.S. Dist. LEXIS 18019 (N.D. Tex. Mar. 10, 2009), a proceeding for pre-suit discovery brought by Petitioner Enable pursuant to Texas Rule of Civil Procedure 202: [Prospective Defendant] United maintains that Enable's petition is removable based on diversity jurisdiction. The merit of United's positi ...
From In re Enable Commerce, Inc., 2009 U.S. Dist. LEXIS 18019 (N.D. Tex. Mar. 10, 2009), a proceeding for pre-suit discovery brought by Petitioner Enable pursuant to Texas Rule of Civil Procedure 202: [Prospective Defendant] United maintains that Enable’s petition…
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RICO — “Sole Proprietorship” Law Firm as RICO Enterprise, Lawyer as RICO Defendant

From Wade v. Gaither, 2009 U.S. Dist. LEXIS 17850 (D. Utah Mar. 2, 2009): *** To establish liability under § 1962(c), "one must allege and prove the existence of two distinct entities: (1) a 'person'; and (2) an 'enterprise' that is not simply the 'person' referred to by a different name." Cedric Kushner Promotions, Ltd. v. King,
From Wade v. Gaither, 2009 U.S. Dist. LEXIS 17850 (D. Utah Mar. 2, 2009): *** To establish liability under § 1962(c), “one must allege and prove the existence of two distinct entities: (1) a ‘person’; and (2) an ‘enterprise’ that…
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Class Actions — Standards for Interlocutory Review under Federal Rule of Civil Procedure 23(f) of Class Certification Orders

From Vallario v. Vandehey, 554 F.3d 1259 (10th Cir. 2009): Interlocutory review of a district court's class certification order is generally appropriate in three types of cases. The first such category is comprised of "death knell cases," which refers to situations in which a questionable class certification order is likely to force ...
From Vallario v. Vandehey, 554 F.3d 1259 (10th Cir. 2009): Interlocutory review of a district court’s class certification order is generally appropriate in three types of cases. The first such category is comprised of “death knell cases,” which refers to…
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Federal Arbitration Act — “Manifest Disregard” After Hall Street — Circuit Split — Fifth Circuit Summary

From Citigroup Global Mkts. Inc. v. Bacon, 2009 U.S. App. LEXIS 4543 (5th Cir. Mar. 9, 2009): The question before us now is whether, under the FAA, manifest disregard of the law remains valid, as an independent ground for vacatur, after Hall Street. The answer seems clear. Hall Street unequivocally held that the statutory ...
From Citigroup Global Mkts. Inc. v. Bacon, 2009 U.S. App. LEXIS 4543 (5th Cir. Mar. 9, 2009): The question before us now is whether, under the FAA, manifest disregard of the law remains valid, as an independent ground for vacatur,…
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Federal Arbitration Act — Court Must Look Through the Arbitration Clause to Ascertain Whether Underlying Dispute Confers Federal Jurisdiction — No Federal Jurisdiction Conferred by Counterclaim

From Vaden v. Discover Bank, No. 07-773, 2009 U.S. 1781 (U.S. Mar. 9, 2009): [No Federal Jurisdiction from Counterclaim.] A complaint purporting to rest on state law, we have recognized, can be recharacterized as one "arising under" federal law if the law governing the complaint is exclusively federal. See Beneficial Nat. Bank ...
From Vaden v. Discover Bank, No. 07-773, 2009 U.S. 1781 (U.S. Mar. 9, 2009): [No Federal Jurisdiction from Counterclaim.] A complaint purporting to rest on state law, we have recognized, can be recharacterized as one “arising under” federal law if…
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Both Adverse Inference and Tort Claim of Spoliation Available for Same Act in New Jersey — Duplicative Recovery Barred

From Tartaglia v. UBS PaineWebber Inc., 2009 N.J. LEXIS 1797 (Dec. 16, 2008): The matter now before us well illustrates the apparent confusion that has resulted from our discussion in Rosenblit [v. Zimmerman, 166 N.J. 391 (2001)] about the relationship between the time when an act of spoliation is discovered and the appropr ...
From Tartaglia v. UBS PaineWebber Inc., 2009 N.J. LEXIS 1797 (Dec. 16, 2008): The matter now before us well illustrates the apparent confusion that has resulted from our discussion in Rosenblit [v. Zimmerman, 166 N.J. 391 (2001)] about the relationship…
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Email Admissibility — Emails Produced in Discovery Are Sufficiently Authenticated by Fact of Production when Offered by Adverse Party But Not by Producing Party

Two cases: Case No. 1. Eastview Healthcare, LLC v. Synertx, Inc., 2009 Ga. App. LEXIS 225 (Ga. App. Mar. 3, 2009) (a litigation involving multiple related cases): The facilities [i.e., the defendants in this case] claim that the court erred in sustaining [plaintiff] Synertx's objections to evidence attached to their res ...
Two cases: Case No. 1. Eastview Healthcare, LLC v. Synertx, Inc., 2009 Ga. App. LEXIS 225 (Ga. App. Mar. 3, 2009) (a litigation involving multiple related cases): The facilities [i.e., the defendants in this case] claim that the court erred…
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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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