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

Standard of Review of Magistrate Judge Decisions — What Type of Sanction Is Dispositive?

From Colida v. Nokia, Inc., 2008 U.S. Dist. LEXIS 75450 (S.D.N.Y. Sept. 26, 2008): Generally, a district court reviews the recommendations of a magistrate judge for clear error on the face of the record. If specific objections are made to a recommendation on a dispositive motion, however, a district court reviews that recom ...
From Colida v. Nokia, Inc., 2008 U.S. Dist. LEXIS 75450 (S.D.N.Y. Sept. 26, 2008): Generally, a district court reviews the recommendations of a magistrate judge for clear error on the face of the record. If specific objections are made to…
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Sanctions — Post-Trial Rule 11 Motion Must Satisfy 21-Day Safe Harbor

The defendant in Saldibar v. Delray One, Inc., 2008 U.S. Dist. LEXIS 61470 (S.D. Fla. Aug. 12, 2008), moved for sanctions after trial on the theory that the plaintiff’s case was doomed to lose at trial. The motion, however, was too late for the plaintiff to correct or withdraw its offending positions because the defendant did not file the motion until afte ...
The defendant in Saldibar v. Delray One, Inc., 2008 U.S. Dist. LEXIS 61470 (S.D. Fla. Aug. 12, 2008), moved for sanctions after trial on the theory that the plaintiff’s case was doomed to lose at trial. The motion, however, was…
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Adequate Photographs of Spoliated Evidence Preclude Ultimate Sanctions

From Koehler v. Midtown Athletic Club, LLP, 2008 N.Y. App. Div. LEXIS 7574 (4th Dept. Oct. 10, 2008): Plaintiff commenced this action seeking damages for injuries he allegedly sustained when his foot became entangled in a net while playing tennis at a facility owned and operated by defendants. Plaintiff's attorney notified defendants th ...
From Koehler v. Midtown Athletic Club, LLP, 2008 N.Y. App. Div. LEXIS 7574 (4th Dept. Oct. 10, 2008): Plaintiff commenced this action seeking damages for injuries he allegedly sustained when his foot became entangled in a net while playing tennis…
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Are Witness Statements Subject to Rule 26(a)(1) Disclosure or Protected as Work Product? Affidavits Filed in Bad Faith — Rule 56(g) Sanctions

In responding to the plaintiff’s motion for summary judgment and in support of their own motion, the defendant filed false affidavits that had not previously been produced to the plaintiff, in Trustees of Plumbers & Steamfitters Local Union No. 43 v. Crawford, 2008 U.S. Dist. LEXIS 73914 (E.D. Tenn. Aug. 11, 2008). The Court held that both Rule 26(a)(1) an ...
In responding to the plaintiff’s motion for summary judgment and in support of their own motion, the defendant filed false affidavits that had not previously been produced to the plaintiff, in Trustees of Plumbers & Steamfitters Local Union No. 43…
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RICO — Causation Post-Bridge

From Ritter v. Klisivitch, 2008 U.S. Dist. LEXIS 58818 (E.D.N.Y. July 30, 2008): Plaintiff alleges that Defendants engaged in "a RICO enterprise scheme ... whose activities included tax evasion, money laundering, financial institution fraud, insurance fraud, bankruptcy fraud, and obstruction of justice, all with the intended goal of pr ...
From Ritter v. Klisivitch, 2008 U.S. Dist. LEXIS 58818 (E.D.N.Y. July 30, 2008): Plaintiff alleges that Defendants engaged in “a RICO enterprise scheme … whose activities included tax evasion, money laundering, financial institution fraud, insurance fraud, bankruptcy fraud, and obstruction…
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Federal Court May Dismiss Derivative Action for Failure of Demand Without Reaching Question of Subject Matter Jurisdiction

Ordinarily, federal courts must address subject matter jurisdiction as a threshold question. But not always. The Ninth Circuit ruled in Potter v. Hughes, 2008 U.S. App. LEXIS 21306 (9th Cir. Oct. 10, 2008), that a federal court may dismiss for failure to satisfy the demand requirement of Federal Rule of Civil Procedure 23.1 before reaching the question of s ...
Ordinarily, federal courts must address subject matter jurisdiction as a threshold question. But not always. The Ninth Circuit ruled in Potter v. Hughes, 2008 U.S. App. LEXIS 21306 (9th Cir. Oct. 10, 2008), that a federal court may dismiss for…
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Third Circuit: No Diversity Jurisdiction over Partnership with U.S. Citizen Partner Domiciled Abroad; Dual Citizenship

The plaintiff in Swiger v. Allegheny Energy, Inc., 2008 U.S. App. LEXIS 18139 (3d Cir. Aug. 25, 2008), sued three corporations and a large law firm, one of whose partners was a dual U.S. and U.K. citizen domiciled in the U.K. [No Diversity Jurisdiction.] Whether a federal district court has diversity jurisdiction over a lawsuit ...
The plaintiff in Swiger v. Allegheny Energy, Inc., 2008 U.S. App. LEXIS 18139 (3d Cir. Aug. 25, 2008), sued three corporations and a large law firm, one of whose partners was a dual U.S. and U.K. citizen domiciled in the…
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Server Log Data and Other Transient Data Comprise Discoverable Electronically-Stored Information

In Columbia Pictures Indus. v. Fung, 2007 U.S. Dist. LEXIS 97576 (C.D. Cal. June 8, 2007), a file sharing case, the issue was the discoverability of Server Log Data (defined in the opinion as “the IP addresses of users who are downloading content items and who themselves seek the IP addresses of other users who have a desired content item”), which are tra ...
In Columbia Pictures Indus. v. Fung, 2007 U.S. Dist. LEXIS 97576 (C.D. Cal. June 8, 2007), a file sharing case, the issue was the discoverability of Server Log Data (defined in the opinion as “the IP addresses of users who…
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Implied Holdings of Appellate Court on Remand

The Court of Appeals remanded the action in Terminix Int’l Co., LP v. Palmer Ranch Ltd. P’ship, 280 F. App’x 829 (11th Cir. 2008), with instructions to grant the plaintiff’s motion to compel arbitration. On remand, the trial court dismissed the action for lack of subject matter jurisdiction. Reversing, the Court of Appeals stressed that it had been ...
The Court of Appeals remanded the action in Terminix Int’l Co., LP v. Palmer Ranch Ltd. P’ship, 280 F. App’x 829 (11th Cir. 2008), with instructions to grant the plaintiff’s motion to compel arbitration. On remand, the trial court dismissed…
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Arbitration — Non-Signatory Parent Company Cannot Compel Arbitration Pursuant to Employee’s Agreement with Subsidiary to Work for Both Parent and Subsidiary.

From Kimberlin v. Renasant Bank, 2008 U.S. App. LEXIS 20754 (6th Cir. Sept. 25, 2008), in which the plaintiff employee sued the parent bank for which he worked pursuant to an employment agreement (the “Dual Employment Contract”) with an insurance company subsidiary. Held, because the parent was not a signatory to the arbitration agreement, it could not a ...
From Kimberlin v. Renasant Bank, 2008 U.S. App. LEXIS 20754 (6th Cir. Sept. 25, 2008), in which the plaintiff employee sued the parent bank for which he worked pursuant to an employment agreement (the “Dual Employment Contract”) with an insurance…
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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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