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

Electronic Discovery — Presumptive Right to Electronically-Stored Information in Native Format

From Superior Prod. P’ship v. Gordon Auto Body Parts, 2008 U.S. Dist. LEXIS 97535 (S.D. Ohio Dec. 2, 2008): The first issue raised by the motion to compel is whether Gordon should be required to produce documents in their native electronic format. The parties agree that Gordon keeps information in electronic format, but it has produce ...
From Superior Prod. P’ship v. Gordon Auto Body Parts, 2008 U.S. Dist. LEXIS 97535 (S.D. Ohio Dec. 2, 2008): The first issue raised by the motion to compel is whether Gordon should be required to produce documents in their native…
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Letters Threatening Rule 11 Sanctions Do Not Violate Order Staying All Proceedings

The lawsuit in Nilssen v. General Electric Co., 2008 U.S. Dist. LEXIS 94448 (N.D. Ill. Nov. 12, 2008), was stayed at the plaintiff’s request pending the appeal of another action deciding that the plaintiff’s patents were unenforceable. Plaintiffs also take issue with four letters that GE sent to Plaintiffs' counsel, either threatenin ...
The lawsuit in Nilssen v. General Electric Co., 2008 U.S. Dist. LEXIS 94448 (N.D. Ill. Nov. 12, 2008), was stayed at the plaintiff’s request pending the appeal of another action deciding that the plaintiff’s patents were unenforceable. Plaintiffs also take…
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Cause of Action for Negligent Spoliation of Evidence Recognized in Connecticut

From Basso v. Boston Scientific Corp., 2008 Conn. Super. LEXIS 3020 (Conn. Super. Ct. Nov. 21, 2008): The hospital ... moves to strike counts seven and eight on the grounds that Connecticut does not recognize the tort of negligent spoliation of evidence. Although at least two Superior Court judges have ruled that a plaintiff cannot proc ...
From Basso v. Boston Scientific Corp., 2008 Conn. Super. LEXIS 3020 (Conn. Super. Ct. Nov. 21, 2008): The hospital … moves to strike counts seven and eight on the grounds that Connecticut does not recognize the tort of negligent spoliation…
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Removal — Can the One-Year Time Limit in § 1446(b) be Equitably Extended? Circuit Split

From Zendejas v. Shell Oil Co., 2008 U.S. Dist. LEXIS 104462 (D. Ariz. Dec. 10, 2008): The Ninth Circuit has not yet addressed whether the one-year time limit in § 1446(b) may be equitably extended. Defendants ask the Court to follow the Fifth Circuit's approach and hold that the one-year deadline may be equitably extended in the even ...
From Zendejas v. Shell Oil Co., 2008 U.S. Dist. LEXIS 104462 (D. Ariz. Dec. 10, 2008): The Ninth Circuit has not yet addressed whether the one-year time limit in § 1446(b) may be equitably extended. Defendants ask the Court to…
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Securities — Every Member of § 13(d) Group Must Be a Beneficial Owner

Hemispherx Biopharma,Inc. v. Johannesburg Consol. Invs., 2008 U.S. App. LEXIS 26515 (11th Cir. Dec. 29, 2008): Whether individuals or entities without a beneficial ownership interest in a company's securities can nonetheless become members of a "group" within the meaning of section 13(d)(3) of the Exchange Act is an issue of first impress ...
Hemispherx Biopharma,Inc. v. Johannesburg Consol. Invs., 2008 U.S. App. LEXIS 26515 (11th Cir. Dec. 29, 2008): Whether individuals or entities without a beneficial ownership interest in a company’s securities can nonetheless become members of a “group” within the meaning of…
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RICO Enterprise — Corporation Distinct from Employees If Not Also a Defendant — Merely Defrauding ≠ Operation and Management

The plaintiff insurers in Allstate Ins. Co. v. Rozenberg, 2008 U.S. Dist. LEXIS 104735 (E.D.N.Y. Dec 29, 2008), sued several individuals who set up entities to submit fraudulent no-fault insurance claims for reimbursement of treatment never rendered. The alleged two different enterprises: the first comprised the entities through which the phony claims were ...
The plaintiff insurers in Allstate Ins. Co. v. Rozenberg, 2008 U.S. Dist. LEXIS 104735 (E.D.N.Y. Dec 29, 2008), sued several individuals who set up entities to submit fraudulent no-fault insurance claims for reimbursement of treatment never rendered. The alleged two…
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Sanctions — Misrepresentation to Court — Notable Quote

From United States v. Price, 2008 U.S. Dist. LEXIS 96313 (N.D. Tex. Nov. 25, 2008): An un-sanctioned bad faith misrepresentation carries with it the ability to destroy the Court's status as a hall of justice. ...
From United States v. Price, 2008 U.S. Dist. LEXIS 96313 (N.D. Tex. Nov. 25, 2008): An un-sanctioned bad faith misrepresentation carries with it the ability to destroy the Court’s status as a hall of justice.
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The Five Most Significant Developments in Federal Practice of 2008

1. The enactment of Federal Rule of Evidence 502. 2. Expanded judicial deference to arbitrators (Hall Street v. Mattel; Preston v. Ferrer). 3. RICO causation vs. common law causation (Bridge v. Phoenix Bond). 4. Exacerbated opacity as to preemption and punitive damages (suspects well known). 5. The financial melt ...
1. The enactment of Federal Rule of Evidence 502. 2. Expanded judicial deference to arbitrators (Hall Street v. Mattel; Preston v. Ferrer). 3. RICO causation vs. common law causation (Bridge v. Phoenix Bond). 4. Exacerbated opacity as to preemption and…
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Denial of Summary Judgment Unreviewable after Trial on Merits — Failure to Raise Sufficiency of the Evidence in 50(b) Motion Likely Precludes Appellate Review

From EEOC v. Southwestern Bell Tel., LP, 2008 U.S. App. LEXIS 26105 (8th Cir. Dec. 19, 2008): We will not review a district court's denial of a motion for summary judgment after a trial on the merits. See Eaddy v. Yancey, 317 F.3d 914, 916 (8th Cir. 2003) ("Even a cursory review of precedent in this Circuit reveals that we do not rev ...
From EEOC v. Southwestern Bell Tel., LP, 2008 U.S. App. LEXIS 26105 (8th Cir. Dec. 19, 2008): We will not review a district court’s denial of a motion for summary judgment after a trial on the merits. See Eaddy v.…
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Sanctions — Party’s Appeal of Magistrate Judge’s Order to District Court Insufficient to Sustain Circuit Jurisdiction to Entertain Defenses Personal to Party’s Counsel

After the personal injury claim against Mazda was successfully mediated, in Anthony v. Abbot, 2008 U.S. App. LEXIS 25704 (3d Cir. December 9, 2008), the defense lawyer drafted a release that extended to Mazda’s insurers and suppliers. One would have thought this unobjectionable, since the carriers would not pay without a release from Mazda and Mazda did no ...
After the personal injury claim against Mazda was successfully mediated, in Anthony v. Abbot, 2008 U.S. App. LEXIS 25704 (3d Cir. December 9, 2008), the defense lawyer drafted a release that extended to Mazda’s insurers and suppliers. One would have…
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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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