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

Securities — § 17(a)(2)’s “By Means Of ” Is Broader Than 10b-5’s “Making” — Defendant Need Not Be Speaker

From SEC v. Tambone, 2008 U.S. App. LEXIS 24457 (1st Cir. Dec. 3, 2008) (2-1 decision): [Pleading Standards for SEC in Enforcement Action.] Here ... we are evaluating a securities complaint filed by the SEC, not a private actor. Therefore, on its face, the requirements of the PSLRA do not apply. Additionally, the rationales we ...
From SEC v. Tambone, 2008 U.S. App. LEXIS 24457 (1st Cir. Dec. 3, 2008) (2-1 decision): [Pleading Standards for SEC in Enforcement Action.] Here … we are evaluating a securities complaint filed by the SEC, not a private actor. Therefore,…
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Statements in Superseded Pleadings: Evidentiary vs. Judicial Admissions

From In re Initial Public Offering Secs. Litig., 544 F.Supp.2d 277 (S.D.N.Y. 2008): Defendants argue that plaintiffs should be bound by their earlier pleadings. However, statements in superseded pleadings are not conclusive admissions (though they are still admissions for evidentiary purposes). See United States v. McKeon, 738 F. ...
From In re Initial Public Offering Secs. Litig., 544 F.Supp.2d 277 (S.D.N.Y. 2008): Defendants argue that plaintiffs should be bound by their earlier pleadings. However, statements in superseded pleadings are not conclusive admissions (though they are still admissions for evidentiary…
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Arbitration — Judgment May Be Entered Confirming Award under FAA Even Though Neither Arbitration Clause Nor Governing Rules Explicitly So Provide

Section 9 of the Federal Arbitration Act authorizes a judgment to be entered on an arbitration award "[i]f the parties . . . have agreed that a judgment" may be so entered. The arbitration clause in Qorvis Commc’ns v. Wilson, 2008 U.S. App. LEXIS 24376 (4th Cir. Dec. 3, 2008), did not so provide. Nor did it adopt the rules of a governing orga ...
Section 9 of the Federal Arbitration Act authorizes a judgment to be entered on an arbitration award "[i]f the parties . . . have agreed that a judgment" may be so entered. The arbitration clause in Qorvis Commc’ns v. Wilson,…
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Electronic Discovery — Everything You Could Possibly Need to Know About Metadata

From Aguilar v. Immigration & Customs Enforcement Div., 2008 U.S. Dist. LEXIS 97018 (S.D.N.Y. Nov. 20, 2008) (Maas, M.J.): A. Metadata and Discovery "As a general rule of thumb, the more interactive the application, the more important the metadata is to understanding the application's output." Williams v. Spri ...
From Aguilar v. Immigration & Customs Enforcement Div., 2008 U.S. Dist. LEXIS 97018 (S.D.N.Y. Nov. 20, 2008) (Maas, M.J.): A. Metadata and Discovery “As a general rule of thumb, the more interactive the application, the more important the metadata is…
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A Gap in Federal Rule of Evidence 502 (Waiver of Privilege and Work Product)

There is a gap in the scope of Federal Rule of Evidence 502 (Attorney -Client Privilege and Work Product; Limitations on Waiver), the excellent new rule that was enacted into law on September 19, 2008. The Rule addresses disclosures “made in a federal proceeding or to a federal office” (Rule 502(a), (b)) and disclosures “made in a state proceeding” ...
There is a gap in the scope of Federal Rule of Evidence 502 (Attorney -Client Privilege and Work Product; Limitations on Waiver), the excellent new rule that was enacted into law on September 19, 2008. The Rule addresses disclosures “made…
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Does Service of Complaint by Mail Extend 30-Day Removal Period by 3 Days? Caselaw Split

From Knight v. J.I.T. Packaging, Inc., 2008 U.S. Dist. LEXIS 96927 (N.D. Ohio Nov. 24, 2008): [T]he crux of the issue ... turns upon whether Federal Rule of Civil Procedure 6(d) applies to the removal procedure. Although the courts that have considered the issue are divided, the majority have determined that Rule 6(d) does not extend the ...
From Knight v. J.I.T. Packaging, Inc., 2008 U.S. Dist. LEXIS 96927 (N.D. Ohio Nov. 24, 2008): [T]he crux of the issue … turns upon whether Federal Rule of Civil Procedure 6(d) applies to the removal procedure. Although the courts that…
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Inquiry Notice — Statute of Limitations — Documents That May Be Considered on a 12(b)(6) Motion

Although the Second Circuit did not find the statute of limitations defense viable in Staehr v. Hartford Fin. Servs., 2008 U.S. App. LEXIS 23551 (2d Cir. Nov. 16, 2008), it identified a series of documents that could properly be considered on a 12(b)(6) motion without converting the motion to one for summary judgment. The permissible documents include compla ...
Although the Second Circuit did not find the statute of limitations defense viable in Staehr v. Hartford Fin. Servs., 2008 U.S. App. LEXIS 23551 (2d Cir. Nov. 16, 2008), it identified a series of documents that could properly be considered…
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Honest Services Mail Fraud Does Not Require Proof that Conduct Violated an Applicable State Law — Circuit Split

From United States v. Weyhrauch, 2008 U.S. App. LEXIS 24248 (9th Cir. Nov. 26, 2008): This … interlocutory appeal … presents a matter of first impression in this circuit — whether a federal honest services mail fraud prosecution under 18 U.S.C. §§ 1341 and 1346 requires proof that the conduct at issue also violated an applicable s ...
From United States v. Weyhrauch, 2008 U.S. App. LEXIS 24248 (9th Cir. Nov. 26, 2008): This … interlocutory appeal … presents a matter of first impression in this circuit — whether a federal honest services mail fraud prosecution under 18…
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European-Style Digital Options Are Likely Securities, Precluding Civil RICO Claim

From Affco Invs., LLC v. KPMG, LLP, 2008 U.S. Dist. LEXIS 94396 (S.D. Tex. Nov. 20, 2008), a civil RICO claim (among others) against a law firm (among others) in connection with a tax shelter gone awry: This case involves a complicated scheme whereby taxpayers with substantial income or capital gains could claim a purportedly legal tax lo ...
From Affco Invs., LLC v. KPMG, LLP, 2008 U.S. Dist. LEXIS 94396 (S.D. Tex. Nov. 20, 2008), a civil RICO claim (among others) against a law firm (among others) in connection with a tax shelter gone awry: This case involves…
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Rule 11 Sanctions for Frivolous Denial of Factual Allegations in Answer

From Williams v. R.W. Cannon, Inc., 2008 U.S. Dist. LEXIS 82916 (S.D.Fla. Sept. 24, 2008): ...Rule 11 sanctions must be imposed against Defendants because they frivolously denied factual allegations in Plaintiff's Complaint, even though the allegations were true and Defendants either knew that they were true or would have known that they ...
From Williams v. R.W. Cannon, Inc., 2008 U.S. Dist. LEXIS 82916 (S.D.Fla. Sept. 24, 2008): …Rule 11 sanctions must be imposed against Defendants because they frivolously denied factual allegations in Plaintiff’s Complaint, even though the allegations were true and Defendants…
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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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