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 — “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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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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Recent Posts

Patently Frivolous RICO Complaint Fails to Confer Federal Question Jurisdiction — Subject to Rule 12(b)(1) for Lack of Subject Matter Jurisdiction

Inherent Power Sanctions — Dismissal — Abuse of Discretion Review Is “More Exacting” When Judge is “Accuser, Fact Finder and Sentencing Judge All in One” — Client Responsible for Her Lawyer’s Discovery Defalcations — No Need for Evidentiary Hearing When Sanctions Based Entirely on an Established Record — Lesser Sanctions Reasonably Determined to be Ineffective Given Record of Repeated Discovery Abuses

Inherent Power Sanction of Dismissal for Fraud on the Court — Fabrication of Evidence and Lying about It to the Court — 2-Part Test for Dismissal Sanction (Eleventh Circuit) — Whether Fraud on Court Was Committed for the Court, Not a Jury

New York Law Firm That Advised Florida Resident for Years Subject to Personal Jurisdiction in Florida, Thus Subject to 28 U.S.C. § 1782 in Florida — Court Cannot Amend Protective Order Following Dismissal of Case Unless the Order Retains Jurisdiction Post-Dismissal — Parties Can Enforce Stipulated Protective Order Post-Dismissal Through Breach of Contract Action

Rule 37(e)/Spoliation — “Intent to Deprive” Determined under the Preponderance of the Evidence Standard — Court May Make Determination Or Allow Jury to Do So — Lesser “Culpable Conduct” Standard of Residential Funding Continues to Apply in Second Circuit Outside ESI Context — Once Judge Has Definitively Ruled on the Record Denying A Requested Instruction, Counsel Is Not Required to Object to the Charge Again at Trial to Preserve Issue for Appeal

Rule 11 (9011) and Inherent Power Sanctions for “Unapologetic [Refusal to Apologize] Defiance” of Court’s Rules and Orders — Advising Client to Take Steps That Same Judge Had Told Lawyer Were Improper in Prior Case — Obstinate Recidivism — Silence upon Withdrawal of Motion As Rule 11 (9011) Violation (Noted But Not Addressed on Appeal)

Rule 37 Sanctions Properly Denied for Failure to Produce Documents That Were Already in the Requester’s Possession And Were Not Relevant to The Principal Issue in the Lawsuit — Experts/Daubert: Exclusion Appropriate Where Opinion Was Predicated on Erroneous Assumptions of Law

Supreme Court: Obtaining a Preliminary Injunction Does Not Render the Plaintiff a “Prevailing Party” Entitled to Attorney’s Fees — Must Win “Enduring Relief” On The Merits From A Judicial Order — Extraneous Events, Like Legislation, That Preserve The Outcome And Moot The Lawsuit Do Not Turn The Plaintiff into A Prevailing Party (Note, However, That A Defendant Need Not Obtain A Favorable Judgment On The Merits In Order To Be A “Prevailing Party”)

Supreme Court: When A Plaintiff Amends The Complaint To Delete The Federal-Law Claims That Enabled Removal To Federal Court, Leaving Only State-Law Claims, The Federal Court Loses Supplemental Jurisdiction, And The Case Must Be Remanded To State Court

Supreme Court: A Rule 41(a) Voluntary Dismissal Without Prejudice = A Final Proceeding Within Rule 60(b) — Advisory Committee Notes Are “A Reliable Source Of Insight Into The Meaning Of A Rule” — Prior to Dismissal or Entry of Judgment, A District Court May Always Rehear and Reconsider Prior Rulings

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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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