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

Transferee Court Has Power to Sanction Frivolous Filings Made in Transferor Court

From Anderson v. Wade, 2008 U.S. App. LEXIS 24772 (4th Cir. Dec. 5, 2008): In determining that it lacked authority to impose sanctions against Anderson for filings that were made in the Virginia district court, the district court relied on Edwards v. General Motors Corp., 153 F.3d 242 (5th Cir. 1998), In re Allnutt, 155 F.3 ...
From Anderson v. Wade, 2008 U.S. App. LEXIS 24772 (4th Cir. Dec. 5, 2008): In determining that it lacked authority to impose sanctions against Anderson for filings that were made in the Virginia district court, the district court relied on…
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Sole Proprietorship May Proceed Pro Se in Federal Court

From A. L. Enters. v. Sebron, 2008 U.S. Dist. LEXIS 100391 (D. Utah Dec. 10, 2008): Many cases have recognized that although an entity cannot appear pro se, an exception exists when an entity is a sole proprietorship, because "a sole proprietorship has no legal existence apart from its owner." [Footnote 3. United States v. F ...
From A. L. Enters. v. Sebron, 2008 U.S. Dist. LEXIS 100391 (D. Utah Dec. 10, 2008): Many cases have recognized that although an entity cannot appear pro se, an exception exists when an entity is a sole proprietorship, because “a…
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$16.8 Million Sanction Upheld Under 35 U.S.C. § 285 and Inherent Power of the Court

The overwhelming bulk of the $16.8 million in sanctions imposed in Takeda Chem. Indus. v. Mylan Labs., Inc., 2008 U.S. App. LEXIS 24743 (Fed. Cir. Dec. 8, 2008), was awarded under 35 U.S.C. § 285, which provides that, in a patent case, a trial court "in exceptional cases may award reasonable attorney fees to the prevailing party." However, expert witness fe ...
The overwhelming bulk of the $16.8 million in sanctions imposed in Takeda Chem. Indus. v. Mylan Labs., Inc., 2008 U.S. App. LEXIS 24743 (Fed. Cir. Dec. 8, 2008), was awarded under 35 U.S.C. § 285, which provides that, in a…
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No Adverse Possession of Intellectual Property Rights

From Picture Patents, LLC v. Terra Holdings LLC, 2008 U.S. Dist. LEXIS 98030 (S.D.N.Y. Dec. 3, 2008): ... I am aware that IBM has had actual knowledge of the claim by plaintiff's assignor that she owns the invention for approximately fifteen years and that IBM has taken no steps to assert ownership. However, unless and until adverse poss ...
From Picture Patents, LLC v. Terra Holdings LLC, 2008 U.S. Dist. LEXIS 98030 (S.D.N.Y. Dec. 3, 2008): … I am aware that IBM has had actual knowledge of the claim by plaintiff’s assignor that she owns the invention for approximately…
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Spoliation & Summary Judgment Plus a New Species of Sub-Spoliation

From Wood v. Pittsford Central School Dist., 2008 U.S. App. LEXIS 24733 (2d Cir. Dec. 8, 2008): Finally, for summary judgment purposes, we cannot foreclose the possibility of an adverse spoliation inference on this record. "In borderline cases, an inference of spoliation, in combination with 'some (not insubstantial) evidence' for the ...
From Wood v. Pittsford Central School Dist., 2008 U.S. App. LEXIS 24733 (2d Cir. Dec. 8, 2008): Finally, for summary judgment purposes, we cannot foreclose the possibility of an adverse spoliation inference on this record. “In borderline cases, an inference…
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Proposed F.R.Civ.P. 56(c) and Mandatory Statements of Undisputed Fact

Download associated files: PRACTITIONERS' COMMENT ON RULE 56(c).pdf, N D California Comment. December 11, 2008.pdf  History teaches that, once the Advisory Committee on the Federal Ru ...
Download associated files: PRACTITIONERS’ COMMENT ON RULE 56(c).pdf, N D California Comment. December 11, 2008.pdf  History teaches that, once the Advisory Committee on the Federal Rules of Civil Procedure puts a proposed amendment out for public comment, there…
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Duty to Mitigate Survives Entry of Default Judgment

From 16 Cobalt LLC v. Harrison Career Institute, 2008 U.S. Dist. LEXIS 98866 (Dec. 8, 2008): Both parties agree that Plaintiff has a duty to mitigate damages.... Plaintiff, however, contends that the duty to mitigate is an affirmative defense and that Defendant's failure to file an answer and the consequent default judgment entered agains ...
From 16 Cobalt LLC v. Harrison Career Institute, 2008 U.S. Dist. LEXIS 98866 (Dec. 8, 2008): Both parties agree that Plaintiff has a duty to mitigate damages…. Plaintiff, however, contends that the duty to mitigate is an affirmative defense and…
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Issuer Owes No Contractual Duty to Noteholders to File Timely Reports with SEC — Caselaw Split

In the midst of an options-backdating investigation, UnitedHealth Group (UHG) — the issuer of $850 million of notes — failed to timely file certain reports with the SEC. The Indenture Trustee contended that the failure to file the SEC reports breached a duty under the indenture to the noteholders, and hedge funds owning more than 25% of the notes issued a notic ...
In the midst of an options-backdating investigation, UnitedHealth Group (UHG) — the issuer of $850 million of notes — failed to timely file certain reports with the SEC. The Indenture Trustee contended that the failure to file the SEC reports…
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Statement of Employee Not Admission of Employer within Rule 801

The plaintiff in McAdams v. United States, 2008 U.S. App. LEXIS 24631 (3d Cir. Oct 28, 2008), slipped on the floor of a VA Medical Center (VMAC) and attempted unsuccessfully to introduce the testimony of an x-ray technician employed by the VMAC that the floor was as slippery as a skating rink: McAdams argues that the statement of the VAM ...
The plaintiff in McAdams v. United States, 2008 U.S. App. LEXIS 24631 (3d Cir. Oct 28, 2008), slipped on the floor of a VA Medical Center (VMAC) and attempted unsuccessfully to introduce the testimony of an x-ray technician employed by…
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Rules of Evidence Inapplicable to Discovery Motion

From Arista Records LLC v. Does 1-27, 2008 U.S. Dist. LEXIS 89681 (D. Me. Oct. 29, 2008): Both a motion for leave to take a deposition and a motion to quash would typically be treated as addressing a discovery dispute subject to Local Rule 7(b). Commonly, the parties' memoranda supply the factual background for the dispute and the Court ...
From Arista Records LLC v. Does 1-27, 2008 U.S. Dist. LEXIS 89681 (D. Me. Oct. 29, 2008): Both a motion for leave to take a deposition and a motion to quash would typically be treated as addressing a discovery 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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