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

Amicus Curiae — New Arguments and Issues of First Impression Raised by Amici Rather Than Parties Disregarded

From Solis v. Summit Contractors, Inc., 2009 U.S. App. LEXIS 3755 (8th Cir. Feb. 26, 2009): The amici on behalf of Summit contend that the Secretary could not lawfully apply the multi-employer worksite policy without first adopting it through the informal rulemaking process of the Administrative Procedure Act. See 5 U.S.C. § 553. ...
From Solis v. Summit Contractors, Inc., 2009 U.S. App. LEXIS 3755 (8th Cir. Feb. 26, 2009): The amici on behalf of Summit contend that the Secretary could not lawfully apply the multi-employer worksite policy without first adopting it through the…
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Sanctions — Offender’s Ability to Pay Irrelevant under 18 U.S.C. § 1927, Unlike Rule 11

From Shales v. General Chauffeurs, Sales Drivers & Helpers Local Union No. 330, 2009 U.S. App. LEXIS 4237 (7th Cir. Feb. 27, 2009): Banks's principal argument is that Rule 11 is not a pure fee-shifting statute, so ability to pay should be taken into account. This is true as far as it goes. "A sanction imposed under this rule must be lim ...
From Shales v. General Chauffeurs, Sales Drivers & Helpers Local Union No. 330, 2009 U.S. App. LEXIS 4237 (7th Cir. Feb. 27, 2009): Banks’s principal argument is that Rule 11 is not a pure fee-shifting statute, so ability to pay…
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Court Filing Fees and Contingent Future Losses ≠ RICO Injury

From Izenberg v. ETS Servs., 589 F. Supp. 2d 1193 (C.D. Cal. 2008): Plaintiffs must … plead a concrete financial loss. See Forsyth, 114 F.3d at 1481. Plaintiffs allege that they have "been damaged in having to hire attorneys before bringing this action and [in] bring[ing] this action . . . and will have to incur attorneys['] f ...
From Izenberg v. ETS Servs., 589 F. Supp. 2d 1193 (C.D. Cal. 2008): Plaintiffs must … plead a concrete financial loss. See Forsyth, 114 F.3d at 1481. Plaintiffs allege that they have “been damaged in having to hire attorneys before…
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Creation of a False Document, as Opposed to Destruction or Alteration of and Existing Document, Does Not State a Tort Claim of Spoliation in Ohio

From Williams v. Continental Express Co., 2008 Ohio 5312, 2008 Ohio App. LEXIS 4464 (Ohio App. Oct. 14, 2008): [T]he Williams argue that the trial court erred by determining that a spoliation claim requires an allegation of destruction or alteration of an already existing document. The Williams argue that the creation of a false document ...
From Williams v. Continental Express Co., 2008 Ohio 5312, 2008 Ohio App. LEXIS 4464 (Ohio App. Oct. 14, 2008): [T]he Williams argue that the trial court erred by determining that a spoliation claim requires an allegation of destruction or alteration…
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Sanctions — Premature Service of Discovery Requests Does Not Violate Rule 26(g) or 37(b)(2)

Federal Rule of Civil Procedure Rule 26(g) provides: (1) Signature Required; Effect of Signature. Every disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney's own name - or by the party personally, if unrepresented . . . . By signi ...
Federal Rule of Civil Procedure Rule 26(g) provides: (1) Signature Required; Effect of Signature. Every disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the…
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Rules 8(a) and 12(b)(6) — Court Not Obliged to Ferret Through Complaint in Search of Viable Claims, Even in Pro Se Action

From Sloan v. Smith, 2009 U.S. Dist. LEXIS 14346 (W.D. Va. Feb. 24, 2009): To the extent the complaint possibly could be combed to find a claim that is non-frivolous — and also not barred by res judicata, the applicable statues of limitations, or judicial or other immunity doctrines — a court is not obliged to ferret throug ...
From Sloan v. Smith, 2009 U.S. Dist. LEXIS 14346 (W.D. Va. Feb. 24, 2009): To the extent the complaint possibly could be combed to find a claim that is non-frivolous — and also not barred by res judicata, the applicable…
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Internet Evidence — Web Page from Internet Archive Properly Authenticated by Affidavit

From Masters v. UHS of Del., Inc., 2008 U.S. Dist. LEXIS 107383 (E.D. Mo. Oct.21, 2008): Plaintiff asks the Court to find that exhibit 110, a compilation of defendant's websites that had been archived by a third party, the Internet Archive, is admissible. In support of its motion, plaintiff has submitted the affidavit of Paul Hickman, an ...
From Masters v. UHS of Del., Inc., 2008 U.S. Dist. LEXIS 107383 (E.D. Mo. Oct.21, 2008): Plaintiff asks the Court to find that exhibit 110, a compilation of defendant’s websites that had been archived by a third party, the Internet…
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No Federal Jurisdiction under Grable to Hear Legal Malpractice Claim Despite Centrality of Title VII Issues

From Walker v. Dwoskin, 2009 U.S. Dist. LEXIS 10720 (W.D. Va. Feb. 12, 2009): Plaintiff filed a complaint against the Defendant on January 5, 2009 in the Circuit Court for Albemarle County, alleging that the Defendant breached his contract with the Plaintiff by failing to serve the defendant in the Title VII suits in a timely manner, and ...
From Walker v. Dwoskin, 2009 U.S. Dist. LEXIS 10720 (W.D. Va. Feb. 12, 2009): Plaintiff filed a complaint against the Defendant on January 5, 2009 in the Circuit Court for Albemarle County, alleging that the Defendant breached his contract with…
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A Nicely Balanced Spoliation Instruction

The plaintiff in Hoffman v. Baltimore Police Dept., 2009 U.S. Dist. LEXIS 6626 (D. Md. Jan. 21, 2009), claimed that he was fired due to his race (Caucasian). Notes of an interview between the plaintiff and one of his supervisors (Anderson) were not produced: It is undisputed that after Anderson met with Plaintiff on the morning of Novem ...
The plaintiff in Hoffman v. Baltimore Police Dept., 2009 U.S. Dist. LEXIS 6626 (D. Md. Jan. 21, 2009), claimed that he was fired due to his race (Caucasian). Notes of an interview between the plaintiff and one of his supervisors…
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Expert Testimony Nightmares Are Made Of

The plaintiff in Johnson v. SJP Mgmt. LLC, 2009 U.S. Dist. LEXIS 11272 (E.D. Pa. Feb. 12, 2009), sued for injury due to a defective elevator that allegedly closed on her arm. The defendant moved to strike the testimony of her expert, Schloss, on Daubert grounds. As recounted by the Court, “Schloss could not explain the undisputed fact that no repai ...
The plaintiff in Johnson v. SJP Mgmt. LLC, 2009 U.S. Dist. LEXIS 11272 (E.D. Pa. Feb. 12, 2009), sued for injury due to a defective elevator that allegedly closed on her arm. The defendant moved to strike the testimony of…
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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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