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

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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Rule 11 — Improper Purpose — Filing Contract Claim to Collect Balance Due Not Improper Even If Plaintiff Lacks License That Is a Prerequisite to Suit

From Persis Nova Constr., Inc. v. Edwards, 2009 N.C. App. LEXIS 61 (N.C. App. Jan. 20, 2009): "An improper purpose is 'any purpose other than one to vindicate rights . . . or to put claims of right to a proper test.'" Mack v. Moore, 107 N.C. App. 87, 93, 418 S.E.2d 685, 689 (1992) (quoting Gregory P. Joseph, Sanctions: The Fe ...
From Persis Nova Constr., Inc. v. Edwards, 2009 N.C. App. LEXIS 61 (N.C. App. Jan. 20, 2009): “An improper purpose is ‘any purpose other than one to vindicate rights . . . or to put claims of right to a…
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Spoliation — Bad Faith Not Required in First Circuit

From Velez v. Marriott PR Mgmt., Inc., 2008 U.S. Dist. LEXIS 103484 (D.P.R. Dec. 22, 2008): Applicable caselaw in the First Circuit has clearly established that "bad faith or comparable bad motive" is not required for the court to exclude evidence in situations involving spoliation. Trull v. Volkswagen of America, Inc., 187 F. ...
From Velez v. Marriott PR Mgmt., Inc., 2008 U.S. Dist. LEXIS 103484 (D.P.R. Dec. 22, 2008): Applicable caselaw in the First Circuit has clearly established that “bad faith or comparable bad motive” is not required for the court to exclude…
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Corporate Attorney-Client Privilege — Sale of Business (Asset Sale) — No Waiver By Leaving Privileged Date on Company Computer at Time of Sale

Orbit One Commc’ns, Inc. v. Ronsen, 2008 U.S. Dist. LEXIS 90981 (S.D.N.Y. Oct. 31, 2008): Numerex argues that Old Orbit One waived its right to assert privilege with respect to any documents remaining on its computers after August 1, 2008 because title transferred to Numerex at that time. To support its position, Numerex relies primari ...
Orbit One Commc’ns, Inc. v. Ronsen, 2008 U.S. Dist. LEXIS 90981 (S.D.N.Y. Oct. 31, 2008): Numerex argues that Old Orbit One waived its right to assert privilege with respect to any documents remaining on its computers after August 1, 2008…
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Recent Posts

United States Trinity Energy Servs., L.L.C. v. Se. Directional Drilling, L.L.C., 2025 U.S. App. LEXIS 10178 (5th Cir. Apr. 28, 2025): FRAP 38 Separate Motion Requirement FRAP 38 Sanctions Properly Denied for Want of Separate Motion — Request in Brief Insufficient — “Manifest Disregard” Is Not A Freestanding Ground for Vacatur of Arbitration Award in Fifth Circuit (Or First, Eighth Or Eleventh)

§ 1927 Sanctions Apt for Failing to Withdraw Claim Until Summary Judgment Hearing, Requiring Opponent and Court to Prepare for An Abandoned Argument — Bad Faith Established by False and Misleading Statements to Court — Raising New Argument for First Time in Reply Brief Does Not Warrant § 1927 Sanctions

RICO: Mail and Wire Fraud: Act of Emailing Transcript of Court Proceedings Containing Allegedly False Statements Made in Court ≠ Wire Fraud — Mailing (Serving on Opposing Party) Declarations Allegedly Containing False Statements ≠ Mail Fraud

Supreme Court: (1) Rule 11 Sanctions Available Where Affirmative Defense “Obviously Applies” and Plaintiff/Plaintiff’s Counsel “Lack A Good Faith Basis to Believe Otherwise” — (2) If Affirmative Defense Pled, Court May Require Plaintiff to File a Reply to the Answer Pursuant to Fed. R. Civ. P. 7(a) Setting forth “Specific, Nonconclusory Factual Allegations” Showing That The Affirmative Defense Does Not Apply — (3) The Title of a Statute And The Heading of a Section May Properly Be Used to Interpret the Text

FRAP 38 Sanctions — Sixth Circuit Usually Declines to Impose FRAP 38 Sanctions Unless An Improper Purpose Was Behind the Appeal

FRAP 38: Permissible for Appeals Court to Affirm Sanctions But Deny FRAP 38 Sanctions for Appeal — A Defendant’s Voluntary Cessation of Complained of Behavior Does Not Moot a Case Unless It Is Clear That The Behavior Could Not Reasonably Be Expected to Recur

Rule 11: Violation of 21 Day Safe Harbor “Overlook[ed]” As Non-Prejudicial by First Circuit — “Rule 11 Monetary Sanctions Must Be Reasonable” (Good Quote) — Rule 11(c)(4) Requires Consideration of Offender’s Ability to Pay

Temporary Restraining Order = Preliminary Injunction: 3 Supreme Court Cases (TRO=PI x 3)

Rule 37(c)(1) Sanctions — Exclusion of Untimely Expert Report — Eighth Circuit’s 4-Factor Test

RICO: So Insubstantial A Claim As to Fail to Confer Subject Matter Jurisdiction

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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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