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

Default Judgments — Factors on Motion to Set Aside

From Chaaban v. Criscito, 2009 U.S. Dist. LEXIS 8323 (D.N.J. Feb. 3, 2009): Defaults are disfavored, and where a party has moved to set aside a default, doubtful cases should be resolved in favor of the party moving to set aside a default entry "so that cases may be decided on their merits." See United States v. $ 55,518.05 in U.S. Cu ...
From Chaaban v. Criscito, 2009 U.S. Dist. LEXIS 8323 (D.N.J. Feb. 3, 2009): Defaults are disfavored, and where a party has moved to set aside a default, doubtful cases should be resolved in favor of the party moving to set…
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Sanctions — Appellate Review of Joint-and-Several Liability Determination — Sixth Circuit Ambiguity on § 1927 Standards

From Garner v Cuyahoga County Juvenile Court, 2009 U.S. App. LEXIS 1289 (6th Cir. Jan. 22, 2009): [De Novo Review of Joint and Several Liability Determination.] A district courtt's determination that plaintiffs are liable to pay attorney fees for bringing frivolous lawsuits, and the court's calculation of the total amoun ...
From Garner v Cuyahoga County Juvenile Court, 2009 U.S. App. LEXIS 1289 (6th Cir. Jan. 22, 2009): [De Novo Review of Joint and Several Liability Determination.] A district courtt’s determination that plaintiffs are liable to pay attorney fees for bringing…
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Searchable .TIF Files are “Reasonably Usable” Alternative to Native Format within Rule 34 — Parties’ Agreement to Produce Native Format Nonetheless Enforced

From In re ClassicStar Mare Lease Litig., 2009 U.S. Dist. LEXIS 9750 (E.D. Ky. Feb. 2, 2009): [T]his Court entered Orders requiring an extensive production of financial information from GeoStar and its many subsidiaries…. The Orders did not specify the format for electronic production of these documents. On September 11, 2008, GeoStar ...
From In re ClassicStar Mare Lease Litig., 2009 U.S. Dist. LEXIS 9750 (E.D. Ky. Feb. 2, 2009): [T]his Court entered Orders requiring an extensive production of financial information from GeoStar and its many subsidiaries…. The Orders did not specify the…
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International Arbitration — Abstention Based on Comity — Appellate Jurisdiction under the FAA

The parties in Answers in Genesis of Kentucky, Inc. v. Creation Ministries International, Ltd., 2009 U.S. App. LEXIS 2743 (6th Cir. Feb. 13, 2009), were, respectively, U.S. and an Australian entities advocating creationism. Formerly affiliated, they entered into two agreements, a Memorandum of Understanding that required “Christian arbitration” of any di ...
The parties in Answers in Genesis of Kentucky, Inc. v. Creation Ministries International, Ltd., 2009 U.S. App. LEXIS 2743 (6th Cir. Feb. 13, 2009), were, respectively, U.S. and an Australian entities advocating creationism. Formerly affiliated, they entered into two agreements,…
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RICO — A Group of Persons Conspiring to Commit a Fraud Does Not Necessarily Comprise an Enterprise

From Millette v. DEK Techs., Inc., 2008 U.S. Dist. LEXIS 95933 (S.D. Fla. Nov. 25, 2008): A RICO enterprise can not be a group simply conspiring to commit a fraud, that is not enough to trigger the Act. In re Managed Care Litigation, 298 F. Supp. 2d at 1274. The parties must be "organized in a fashion that would enable the ...
From Millette v. DEK Techs., Inc., 2008 U.S. Dist. LEXIS 95933 (S.D. Fla. Nov. 25, 2008): A RICO enterprise can not be a group simply conspiring to commit a fraud, that is not enough to trigger the Act. In re…
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Rooker-Feldman Does Not Bar Federal Subject Matter Jurisdiction Until the Last Nail Is in the Coffin of the Last State Court Proceeding

The chronology in Nicholson v. Career Assessment Atlanta, Inc., 2009 U.S. App. LEXIS 2941 (11th Cir. Feb. 18, 2009), was as follows: • October 5, 2007 — state court jury verdict on claim for accounting under state law for copyright profits • November 1, 2007 — federal declaratory judgment action for accounting for ...
The chronology in Nicholson v. Career Assessment Atlanta, Inc., 2009 U.S. App. LEXIS 2941 (11th Cir. Feb. 18, 2009), was as follows: • October 5, 2007 — state court jury verdict on claim for accounting under state law for copyright…
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The Virtual Practice of Law — California Plaintiff May Recover Fees for Work of Out-of-State Lawyer Engaged by California Counsel — Everyone Practices Everywhere vs. Birbrower

From Winterrrowd v. Am. Gen. Annuity Ins. Co., 2009 U.S. App. LEXIS 2899 (9th Cir. Feb. 17, 2009): Even at a time when the largest law firms in the United States were composed of not many more than one hundred lawyers, Judge Friendly observed that we live in an "age of increased specialization and high mobility of the bar." Sp ...
From Winterrrowd v. Am. Gen. Annuity Ins. Co., 2009 U.S. App. LEXIS 2899 (9th Cir. Feb. 17, 2009): Even at a time when the largest law firms in the United States were composed of not many more than one hundred…
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Conflicts — Screening — New ABA Rule of Professional Conduct 1.10(a)(2) Facilitates Lawyer Mobility by Protecting New Firm from Imputed Conflicts

Download associated file: ABA Rule Prof Conduct 1 10 a 2.pdf  The American Bar Association House of Delegates has approved a major amendment to Rule of Professional Conduct 1.10(a)(2) permitting screening of lateral partners (lawyers) to avoid imputed conflicts at the new ...
Download associated file: ABA Rule Prof Conduct 1 10 a 2.pdf  The American Bar Association House of Delegates has approved a major amendment to Rule of Professional Conduct 1.10(a)(2) permitting screening of lateral partners (lawyers) to avoid imputed conflicts…
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Third Party Beneficiary Bound by Conditions in Contract It Seeks to Enforce, Even if Conditions Stated as Promises

The automobile policy State Farm issued in State Farm Fire & Cas. Co. v. Nationwide Mut. Ins. Co., 2009 U.S. Dist. LEXIS 8263 (E.D. Va. Feb. 5, 2009) contained a commitment that the insured would maintain $250,000 in underlying coverage or be responsible for that sum before the State Farm policy attached. An additional insured argued that he was not a party ...
The automobile policy State Farm issued in State Farm Fire & Cas. Co. v. Nationwide Mut. Ins. Co., 2009 U.S. Dist. LEXIS 8263 (E.D. Va. Feb. 5, 2009) contained a commitment that the insured would maintain $250,000 in underlying coverage…
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Important eDiscovery Sanctions Program at Fordham — Tuesday, February 24th

Download associated file: Fordham eDiscovery Sanctions Program.pdf  Professor Daniel J. Capra, the Reed Professor of Law at Fordham and the Reporter to the Advisory Committee on the Federal Rules of Evidence, has organized a stellar program on Electronic Discovery Sanctio ...
Download associated file: Fordham eDiscovery Sanctions Program.pdf  Professor Daniel J. Capra, the Reed Professor of Law at Fordham and the Reporter to the Advisory Committee on the Federal Rules of Evidence, has organized a stellar program on Electronic Discovery…
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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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