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

January 2009 Meeting of the Standing Committee on Rules of Practice and Procedure

On Tuesday, January 13, 2009, I moderated a panel discussion at the meeting of the Standing Committee on Rules of Practice and Procedure of the U.S. Judicial Conference. The topic was Problems in Civil Litigation and Possible Reforms. The materials included my article Federal Litigation: Where Did It Go Off Track? (available on the Recent Articles page -- ...
On Tuesday, January 13, 2009, I moderated a panel discussion at the meeting of the Standing Committee on Rules of Practice and Procedure of the U.S. Judicial Conference. The topic was Problems in Civil Litigation and Possible Reforms. The materials…
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Corporate Dual Citizenship Prevents Minimal Diversity under CAFA

From From Johnson v. Advance America, 2008 U.S. App. LEXIS 25050 (4th Cir. Dec. 12, 2008): Advance America contends that the minimal diversity requirement is satisfied in this case. It argues first that because Advance America is incorporated under the laws of Delaware and is therefore a Delaware citizen, its citizenship is different fr ...
From From Johnson v. Advance America, 2008 U.S. App. LEXIS 25050 (4th Cir. Dec. 12, 2008): Advance America contends that the minimal diversity requirement is satisfied in this case. It argues first that because Advance America is incorporated under the…
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RICO — Concrete Injury — Intracorporate Conspiracy Doctrine

The RICO complaint was dismissed on multiple grounds in District 1199P Health & Welfare Plan v. Janssen, LP, 2008 U.S. Dist. LEXIS 10352 (D.N.J. Dec. 23, 2008). The basic claim was that the defendants deceptively marketed a more expensive drug (Risperdal) for off-label uses that could have been more cheaply, and equally effectively, accomplished by less expe ...
The RICO complaint was dismissed on multiple grounds in District 1199P Health & Welfare Plan v. Janssen, LP, 2008 U.S. Dist. LEXIS 10352 (D.N.J. Dec. 23, 2008). The basic claim was that the defendants deceptively marketed a more expensive drug…
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Recalculation of Damages after Plaintiffs Cannot Explain Charts at Their Depositions Insufficient to Warrant § 1927 or Inherent Power Sanctions

From Gortat v. Capala Bros., Inc., 2008 U.S. Dist. LEXIS 102500 (E.D.N.Y. Dec. 18, 2008): Although it is somewhat disconcerting that plaintiffs' damages were recalculated after plaintiffs were deposed, this in itself hardly constitutes misconduct warranting sanctions. In wage and hour violation cases, a plaintiff's calculation of the dam ...
From Gortat v. Capala Bros., Inc., 2008 U.S. Dist. LEXIS 102500 (E.D.N.Y. Dec. 18, 2008): Although it is somewhat disconcerting that plaintiffs’ damages were recalculated after plaintiffs were deposed, this in itself hardly constitutes misconduct warranting sanctions. In wage and…
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Experts: Failure to Act upon Receipt of Inadequate 26(a)(2) Disclosure = Unacceptable Gamesmanship

From Foreman v. Am. Road Lines, Inc., 2008 U.S. Dist. LEXIS 102278 (S.D. Ala. Dec. 16, 2008): Unquestionably, it was incumbent on defendants to comply fully and timely with the disclosure requirements of Rule 26(a)(2), including specifically providing plaintiffs with a list of other cases in which Dr. Davis has testified in the last four ...
From Foreman v. Am. Road Lines, Inc., 2008 U.S. Dist. LEXIS 102278 (S.D. Ala. Dec. 16, 2008): Unquestionably, it was incumbent on defendants to comply fully and timely with the disclosure requirements of Rule 26(a)(2), including specifically providing plaintiffs with…
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8(a), 9(b) and RICO

From Pineda v. Saxon Mortg. Servs., 2008 U.S. Dist. LEXIS 102439 (C.D. Cal. Dec. 10, 2008) (Selna, J.): First, Pineda does not state a claim under Rule 8(a), which is subject to the pleading requirements set forth in Twombly. "The elements of a civil RICO claim are as follows: (1) conduct (2) of an enterprise (3) through a patter ...
From Pineda v. Saxon Mortg. Servs., 2008 U.S. Dist. LEXIS 102439 (C.D. Cal. Dec. 10, 2008) (Selna, J.): First, Pineda does not state a claim under Rule 8(a), which is subject to the pleading requirements set forth in Twombly. “The…
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Third Party, But Not First Party, Spoliation States a Claim in Montana

From Peschel v. City of Missoula, 2008 U.S. Dist. LEXIS 98651 (D. Mont. Dec. 5, 2008): The Montana Supreme Court has recognized the torts of negligent and intentional spoliation as viable independent causes of action. Oliver v. Stimson Lumber Co., 1999 MT 328, P40, 297 Mont. 336, 993 P.2d 11. These torts, however, are cognizable ...
From Peschel v. City of Missoula, 2008 U.S. Dist. LEXIS 98651 (D. Mont. Dec. 5, 2008): The Montana Supreme Court has recognized the torts of negligent and intentional spoliation as viable independent causes of action. Oliver v. Stimson Lumber Co.,…
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RICO Enterprise — Ascertainable Structure Requirement — Supreme Court Argument on Wednesday, January 14

On Wednesday, January 14, 2008, the Supreme Court will hear argument in Boyle v. United States, No. 07-1309, to address the Circuit split as to whether the enterprise requirement of RICO requires the existence of an ascertainable structure (and, if so, what that structure must consist of). See our posts of March 10, 2008; July 6, 2007; and May 8, 2007. < ...
On Wednesday, January 14, 2008, the Supreme Court will hear argument in Boyle v. United States, No. 07-1309, to address the Circuit split as to whether the enterprise requirement of RICO requires the existence of an ascertainable structure (and, if…
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Sanctions Exclusion in Legal Malpractice Policy Does Not Bar Coverage of Sanctions Motion Joined in by Lawyer’s Own Client

The plaintiffs in Post v. St. Paul Travelers Ins. Co., 2009 U.S. Dist. LEXIS 641 (E.D. Pa. Jan. 7, 2009), were lawyers who had represented Mercy Hospital in a medical malpractice case. Mercy Hospital put the lawyers on notice that it intended to pursue a legal malpractice claim against them, contending that counsel’s discovery abuse forced it to settle the ...
The plaintiffs in Post v. St. Paul Travelers Ins. Co., 2009 U.S. Dist. LEXIS 641 (E.D. Pa. Jan. 7, 2009), were lawyers who had represented Mercy Hospital in a medical malpractice case. Mercy Hospital put the lawyers on notice that…
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Experts — Sanctions — Discretion Shrinks as Severity Grows

From Junk v. Terminix Intl. Co., 2008 U.S. Dist. LEXIS 102161 (S.D. Iowa Aug. 15, 2008): "When a party fails to provide information or identify a witness in compliance with Rule 26(a) or (e), the district court has wide discretion to fashion a remedy or sanction as appropriate for the particular circumstances of the case. Wegener v. J ...
From Junk v. Terminix Intl. Co., 2008 U.S. Dist. LEXIS 102161 (S.D. Iowa Aug. 15, 2008): “When a party fails to provide information or identify a witness in compliance with Rule 26(a) or (e), the district court has wide discretion…
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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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