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

Arbitration — Right to Appeal from Confirmation Subsumes Right to Appeal from Refusal to Modify Award — “Manifest Disregard” Is Not a Ground to Modify

From Grain v. Trinity Health, 551 F.3d 374 (6th Cir. Dec. 24, 2008): [Right to Appeal Unmodified Award.] Grain and Barnes filed this action under the Federal Arbitration Act, seeking to confirm the arbitrators' decision in part (by upholding their liability ruling) and seeking to modify the arbitrators' decision in part (by incre ...
From Grain v. Trinity Health, 551 F.3d 374 (6th Cir. Dec. 24, 2008): [Right to Appeal Unmodified Award.] Grain and Barnes filed this action under the Federal Arbitration Act, seeking to confirm the arbitrators’ decision in part (by upholding their…
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Privilege — Waiver — School Board President Lacks Authority to Waive Privilege of Board

From Sampson v. School Dist. of Lancaster, 2008 U.S. Dist. LEXIS 91421 (E.D. Pa. Nov. 5, 2008): Defendants rely on the same statute [24 P.S. § 4-427 (2008)] and contend that [School Board President] Dixon's distribution of the [privileged] Weldon Memorandum to Plaintiff was an ultra vires act. Defendants contend that Dixon had no author ...
From Sampson v. School Dist. of Lancaster, 2008 U.S. Dist. LEXIS 91421 (E.D. Pa. Nov. 5, 2008): Defendants rely on the same statute [24 P.S. § 4-427 (2008)] and contend that [School Board President] Dixon’s distribution of the [privileged] Weldon…
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“Marginally Coherent” Pro Se Filings Not Sanctioned

From Marvel v. Cooley, 2009 U.S. Dist. LEXIS 6584 (S.D. Ind. Jan. 28, 2009): In an attachment to her complaint, Marvel lists six prior related complaints that she has filed. In addition to the six prior complaints that Marvel lists, the Court notes Marvel has filed two additional related actions in the Northern District of Indiana. For v ...
From Marvel v. Cooley, 2009 U.S. Dist. LEXIS 6584 (S.D. Ind. Jan. 28, 2009): In an attachment to her complaint, Marvel lists six prior related complaints that she has filed. In addition to the six prior complaints that Marvel lists,…
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Employee’s Running Standard Outlook Cleanup Program Before Exiting Company Does Not Give Rise to Spoliation Inference; Deletion of Images from Web Surfing Not Suspicious

In Thermodyn Corp. v. 3M Co., 2008 U.S. Dist. LEXIS 106804 (N.D. Ohio Dec. 17, 2008), the plaintiff employer sued a former employee (Kaufman) for allegedly stealing trade secrets and providing them to a competitor of his former employer (3M): [Plaintiff] Thermodyn argues the [adverse] inference is appropriate because Kaufman deleted some ...
In Thermodyn Corp. v. 3M Co., 2008 U.S. Dist. LEXIS 106804 (N.D. Ohio Dec. 17, 2008), the plaintiff employer sued a former employee (Kaufman) for allegedly stealing trade secrets and providing them to a competitor of his former employer (3M):…
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Arbitration — “Manifest Disregard” Survives Hall Street — Ninth Circuit Joins Second

From Comedy Club, Inc. v. Improv West Assocs., 2009 U.S. App. LEXIS 1634 (9th Cir. Jan. 29, 2009): *** We determine that Hall Street Associates does not undermine our prior precedent, Kyocera Corp. v. Prudential-Bache T. Servs., 341 F.3d 987 (9th Cir. 2003) (en banc). As a result, in this circuit, an arbitrator's manifest disrega ...
From Comedy Club, Inc. v. Improv West Assocs., 2009 U.S. App. LEXIS 1634 (9th Cir. Jan. 29, 2009): *** We determine that Hall Street Associates does not undermine our prior precedent, Kyocera Corp. v. Prudential-Bache T. Servs., 341 F.3d 987…
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Second Circuit Voids Class Action Waiver in Commercial Arbitration Contract Where Enforcing It Would Effectively Confer Antitrust Immunity — Declines to Decide General Enforceability of Such Clauses

From In re American Express Merchants’ Litig., 2009 U.S. App. LEXIS 1646 (2d Cir. Jan. 30, 2009): This Court frequently enforces mandatory arbitration clauses contained in commercial contracts. We do so on the principle that "it is difficult to overstate the strong federal policy in favor of arbitration, and it is a policy we have ofte ...
From In re American Express Merchants’ Litig., 2009 U.S. App. LEXIS 1646 (2d Cir. Jan. 30, 2009): This Court frequently enforces mandatory arbitration clauses contained in commercial contracts. We do so on the principle that “it is difficult to overstate…
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Experts —Daubert Factors — Third Circuit

From Zombeck v. Amada Am., Inc., 2009 U.S. Dist. LEXIS 6443 (W.D. Pa. Jan. 29,. 2009): In assessing the reliability of a proffered expert's testimony, a trial court must focus not on the substance of the expert's conclusions, but on whether those conclusions were generated by a reliable methodology. Daubert, 509 U.S. at 590. To a ...
From Zombeck v. Amada Am., Inc., 2009 U.S. Dist. LEXIS 6443 (W.D. Pa. Jan. 29,. 2009): In assessing the reliability of a proffered expert’s testimony, a trial court must focus not on the substance of the expert’s conclusions, but on…
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Sanctions — 21 Day Safe Harbor Inapplicable to § 1927 Sanctions

From In Re Hannaford Bros. Co. Customer Data Security Breach Litig., 2008 U.S. Dist. LEXIS 99891 (S.D.N.Y. Dec. 10, 2008): Section 1927 does not include an express requirement that the party seeking sanctions provide notice and an opportunity to correct the sanctionable action. [Footnote 29. Cf. Fed. R. Civ. P.11(c)(2) (requirin ...
From In Re Hannaford Bros. Co. Customer Data Security Breach Litig., 2008 U.S. Dist. LEXIS 99891 (S.D.N.Y. Dec. 10, 2008): Section 1927 does not include an express requirement that the party seeking sanctions provide notice and an opportunity to correct…
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Default (vs. Waiver) of the Right to Arbitrate — Effect of Litigating Factually Intertwined Claims

From Forrester v Penn Lyon Homes, Inc., 2009 U.S. App. LEXIS 994 (4th Cir. Jan. 21, 2009): We review a district court's decision as to default of arbitration de novo but defer to the district court's underlying factual findings…. The Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16 (2006), governs the rights and responsibilities ...
From Forrester v Penn Lyon Homes, Inc., 2009 U.S. App. LEXIS 994 (4th Cir. Jan. 21, 2009): We review a district court’s decision as to default of arbitration de novo but defer to the district court’s underlying factual findings…. The…
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Expert Testimony Should be Assessed in Light of Potentially Prejudicial Effect — 702 & 403

From Gell v. Town of Aulander, 2009 U.S. Dist. LEXIS 4553 (E.D.N.C. Jan. 22, 2009): The court must balance its broad discretion and flexibility when determining the admissibility of expert testimony with the concerns of Rule 403 to ensure that the probative value of the proffered testimony is not "substantially outweighed by the danger of ...
From Gell v. Town of Aulander, 2009 U.S. Dist. LEXIS 4553 (E.D.N.C. Jan. 22, 2009): The court must balance its broad discretion and flexibility when determining the admissibility of expert testimony with the concerns of Rule 403 to ensure that…
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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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