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

Summary Judgment Premature Before Daubert Issues Resolved

From Buzzerd v Flagship Carwash of Port St. Lucie, Inc., 2009 U.S. Dist. LEXIS 4398 (M.D. Pa. Jan. 16, 2009): With respect to this argument, the court finds that the defendants' motion for summary judgment is premature and should be dismissed without prejudice. While a court is not required to hold a hearing on expert admissibility, a m ...
From Buzzerd v Flagship Carwash of Port St. Lucie, Inc., 2009 U.S. Dist. LEXIS 4398 (M.D. Pa. Jan. 16, 2009): With respect to this argument, the court finds that the defendants’ motion for summary judgment is premature and should be…
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Outside Accountant’s Communications with Corporate Counsel Privileged Where He Acted As “Functional Equivalent” of Employee

From Roda Drilling Co. v. Siegal, 2009 U.S. Dist. LEXIS 4559 (N.D. Okla. Jan. 22, 2009): The documents submitted consist of a variety of e-mail communications and attachments in which accountant Philip Holthouse is the author or a recipient and most of which also include attorneys. Plaintiffs claim either attorney-client privilege or wor ...
From Roda Drilling Co. v. Siegal, 2009 U.S. Dist. LEXIS 4559 (N.D. Okla. Jan. 22, 2009): The documents submitted consist of a variety of e-mail communications and attachments in which accountant Philip Holthouse is the author or a recipient and…
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RICO — Mere Off-Label Promotion of Drug Not Actionable; False Statements in Ads Are

The plaintiffs in In re: Epogen & Aranesp Off-Label Mktg. & Sales Practices Litig., 2008 U.S. Dist. LEXIS 105233 (C.D. Cal. Dec. 17, 2008) alleged that the defendants promoted a drug for off-label use through mail and wire fraud and thus in violation of RICO: Defendants argue that each of Plaintiffs' causes of action constitutes an imperm ...
The plaintiffs in In re: Epogen & Aranesp Off-Label Mktg. & Sales Practices Litig., 2008 U.S. Dist. LEXIS 105233 (C.D. Cal. Dec. 17, 2008) alleged that the defendants promoted a drug for off-label use through mail and wire fraud and…
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Standards for Certifying Interlocutory Appeal under § 1292(b) — Implications of Need to Study Record or Assess Sufficiency of Pleadings

From Santiago v. Pinello, 2009 U.S. Dist. LEXIS 3179 (E.D.N.Y. Jan. 16, 2009): A district court may certify an interlocutory appeal under three conditions: (1) where the order appealed from "involves a controlling question of law" (2) "as to which there is substantial ground for difference of opinion" and (3) where "an immediate appeal fr ...
From Santiago v. Pinello, 2009 U.S. Dist. LEXIS 3179 (E.D.N.Y. Jan. 16, 2009): A district court may certify an interlocutory appeal under three conditions: (1) where the order appealed from “involves a controlling question of law” (2) “as to which…
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Rule 11 — Improper Purpose — Filing Contract Claim to Collect Balance Due Not Improper Even If Plaintiff Lacks License That Is a Prerequisite to Suit

From Persis Nova Constr., Inc. v. Edwards, 2009 N.C. App. LEXIS 61 (N.C. App. Jan. 20, 2009): "An improper purpose is 'any purpose other than one to vindicate rights . . . or to put claims of right to a proper test.'" Mack v. Moore, 107 N.C. App. 87, 93, 418 S.E.2d 685, 689 (1992) (quoting Gregory P. Joseph, Sanctions: The Fe ...
From Persis Nova Constr., Inc. v. Edwards, 2009 N.C. App. LEXIS 61 (N.C. App. Jan. 20, 2009): “An improper purpose is ‘any purpose other than one to vindicate rights . . . or to put claims of right to a…
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Spoliation — Bad Faith Not Required in First Circuit

From Velez v. Marriott PR Mgmt., Inc., 2008 U.S. Dist. LEXIS 103484 (D.P.R. Dec. 22, 2008): Applicable caselaw in the First Circuit has clearly established that "bad faith or comparable bad motive" is not required for the court to exclude evidence in situations involving spoliation. Trull v. Volkswagen of America, Inc., 187 F. ...
From Velez v. Marriott PR Mgmt., Inc., 2008 U.S. Dist. LEXIS 103484 (D.P.R. Dec. 22, 2008): Applicable caselaw in the First Circuit has clearly established that “bad faith or comparable bad motive” is not required for the court to exclude…
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Corporate Attorney-Client Privilege — Sale of Business (Asset Sale) — No Waiver By Leaving Privileged Date on Company Computer at Time of Sale

Orbit One Commc’ns, Inc. v. Ronsen, 2008 U.S. Dist. LEXIS 90981 (S.D.N.Y. Oct. 31, 2008): Numerex argues that Old Orbit One waived its right to assert privilege with respect to any documents remaining on its computers after August 1, 2008 because title transferred to Numerex at that time. To support its position, Numerex relies primari ...
Orbit One Commc’ns, Inc. v. Ronsen, 2008 U.S. Dist. LEXIS 90981 (S.D.N.Y. Oct. 31, 2008): Numerex argues that Old Orbit One waived its right to assert privilege with respect to any documents remaining on its computers after August 1, 2008…
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After 30 Day Removal Period Has Expired, Notice of Removal May Not be Amended to Assert New Ground for Federal Jurisdiction

From Geismann v. Aestheticare, LLC, 2008 U.S. Dist. LEXIS 106545 (D. Kan. April 9, 2008): ***28 U.S.C. § 1446(a) requires defendant to effect removal by filing a notice of removal in the federal court. Subsection (b) of that statute mandates that defendant file the notice of removal within 30 days after receiving notice of the removable ...
From Geismann v. Aestheticare, LLC, 2008 U.S. Dist. LEXIS 106545 (D. Kan. April 9, 2008): ***28 U.S.C. § 1446(a) requires defendant to effect removal by filing a notice of removal in the federal court. Subsection (b) of that statute mandates…
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Inherent Power Sanctions for Filing Bankruptcy Petition to Delay Civil Litigation

From Ng v. Office of U.S. Trustee, 2009 U.S. App. LEXIS 798 (9th Cir. Jan. 14, 2009): The bankruptcy court's determination that Ng acted in bad faith by filing the underlying bankruptcy petition for the sole purpose of obstructing a related civil case was not clear error, and the bankruptcy court therefore did not abuse its discretion in ...
From Ng v. Office of U.S. Trustee, 2009 U.S. App. LEXIS 798 (9th Cir. Jan. 14, 2009): The bankruptcy court’s determination that Ng acted in bad faith by filing the underlying bankruptcy petition for the sole purpose of obstructing a…
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Email Authenticated by Distinctive Characteristics, Including “@”

From Wireless Networks, Inc., 2008 U.S. Dist. LEXIS 95696 (N.D. Cal. Nov. 17, 2008): Plaintiff objects to the admissibility of e-mails contained in the Declaration of Jessica La Londe at exhibit E as lacking authenticity. First, Plaintiff does not dispute the authenticity of any e-mails there were sent by Plaintiff. Second, the remain ...
From Wireless Networks, Inc., 2008 U.S. Dist. LEXIS 95696 (N.D. Cal. Nov. 17, 2008): Plaintiff objects to the admissibility of e-mails contained in the Declaration of Jessica La Londe at exhibit E as lacking authenticity. First, Plaintiff does not dispute…
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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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