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

Arbitrable vs. Non-Arbitrable Bankruptcy-Related Claims

From Judge Martin Glenn’s opinion in In re Bethlehem Steel Corp. v. Moran Towing Co., 390 B.R. 784 (Bankr. S.D.N.Y. 2008): [Fraudulent Transfer Claims Exempt from Arbitration.] In this Circuit, courts have exempted fraudulent transfer claims from arbitration because they are statutory claims belonging to the trustee and are ...
From Judge Martin Glenn’s opinion in In re Bethlehem Steel Corp. v. Moran Towing Co., 390 B.R. 784 (Bankr. S.D.N.Y. 2008): [Fraudulent Transfer Claims Exempt from Arbitration.] In this Circuit, courts have exempted fraudulent transfer claims from arbitration because they…
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Survival Period for Reps and Warranties in Acquisition Agreement Does Not Comprise Implicit Limitations Period — Circuit Split

From Western Filer Corp. v. Argan, Inc., 2008 U.S. App. LEXIS 18147 (9th Cir. Aug. 25, 2008): We are asked to decide an issue of first impression under California law, whether a provision within a Stock Purchase Agreement ("SPA") permitting the representations and warranties of the parties to survive closing, also serves as a contractual ...
From Western Filer Corp. v. Argan, Inc., 2008 U.S. App. LEXIS 18147 (9th Cir. Aug. 25, 2008): We are asked to decide an issue of first impression under California law, whether a provision within a Stock Purchase Agreement (“SPA”) permitting…
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Municipal Corporations Unable to Form Criminal Intent Essential to RICO Liability

From Pilitz v. Village of Rockville Centre, 2008 U.S. Dist. LEXIS 72231 (E.D.N.Y. Sept. 22, 2008): Courts in this circuit have considered whether a municipality is capable of forming the requisite intent to support a RICO violation. Each court that has faced this question has held that because a municipality cannot form the intent ne ...
From Pilitz v. Village of Rockville Centre, 2008 U.S. Dist. LEXIS 72231 (E.D.N.Y. Sept. 22, 2008): Courts in this circuit have considered whether a municipality is capable of forming the requisite intent to support a RICO violation. Each court that…
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CAFA’s Removal Provision Trumps Anti-Removal Provision of Securities Act of 1933: Caselaw Split

From N.J. Carpenters Vacation Fund v. Harborview Mort. Loan Trust 2006-4, 2008 U.S. Dist. LEXIS 72039 (S.D.N.Y. Sept. 24, 2008): This putative class action, which is rooted in the mortgage-backed securities crisis, addresses an issue of first impression in this Circuit--whether the removal provision of the Class Action Fairness Act of 2 ...
From N.J. Carpenters Vacation Fund v. Harborview Mort. Loan Trust 2006-4, 2008 U.S. Dist. LEXIS 72039 (S.D.N.Y. Sept. 24, 2008): This putative class action, which is rooted in the mortgage-backed securities crisis, addresses an issue of first impression in this…
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Third-Party Defendants and Removal — Realignment of Parties — Right of Third-Party Defendant to Remove

In Huntsman Corp. v. Int’l Risk Ins. Co., 2008 U.S. Dist. LEXIS 74397 (S.D. Tex. Sept. 26, 2008), Plaintiff Huntsman sued Defendant IRI for insurance coverage in state court. IRI in turn sued its reinsurers in a third-party complaint. The reinsurers/third-party defendants removed the case to federal court. Judge Lee H. Rosenthal’s analysis:
In Huntsman Corp. v. Int’l Risk Ins. Co., 2008 U.S. Dist. LEXIS 74397 (S.D. Tex. Sept. 26, 2008), Plaintiff Huntsman sued Defendant IRI for insurance coverage in state court. IRI in turn sued its reinsurers in a third-party complaint. The…
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Injured Party Who Releases All Claims Against Tortfeasor Does Not Release Spouse’s Consortium Claim

From Crabtree v. Woodman, 2008 U.S. Dist. LEXIS 69054 (D. Utah Sept. 11, 2008): [T]he court initially answers a question that is a matter of first impression in Utah. That is, does an injured person who releases all claims against a tortfeasor also release a loss of consortium claim by his or her spouse? While Utah courts have not yet ...
From Crabtree v. Woodman, 2008 U.S. Dist. LEXIS 69054 (D. Utah Sept. 11, 2008): [T]he court initially answers a question that is a matter of first impression in Utah. That is, does an injured person who releases all claims against…
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Unjust Enrichment Damages Not Recoverable under RICO

From In re Zyprexa Prods. Liab. Litig., 2008 U.S. Dist. LEXIS 71037 (E.D.N.Y. Sept. 5, 2008): Dr. Rosenthal also estimated unjust enrichment damages--with lower-and upper-bound estimates of $ 3.7 billion and $ 7.1 billion--over the class period. See Rosenthal Decl. 44-47. Her calculations are not discussed further here since the ...
From In re Zyprexa Prods. Liab. Litig., 2008 U.S. Dist. LEXIS 71037 (E.D.N.Y. Sept. 5, 2008): Dr. Rosenthal also estimated unjust enrichment damages–with lower-and upper-bound estimates of $ 3.7 billion and $ 7.1 billion–over the class period. See Rosenthal Decl.…
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Chevron Deference and the Arbitrary-and-Capricious Standard

From Wright v. Everson, 2008 U.S. App. LEXIS 20177 (11th Cir. Sept. 24, 2008): "When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions." Chevron, 467 U.S. at 842, 104 S. Ct. at 2781. First, always, is the question whether Congress has directly ...
From Wright v. Everson, 2008 U.S. App. LEXIS 20177 (11th Cir. Sept. 24, 2008): “When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions.” Chevron, 467 U.S. at 842, 104 S.…
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Standing to Assert RICO Claims Passes to Bankruptcy Estate on Filing Bankruptcy

Individual mortgagors sued financial institutions for deceiving them into taking out inflated mortgages which they could not afford, precipitating their bankruptcy, in Roberts v. First Bank of Delaware, 2008 U.S. Dist. LEXIS 71266 (M.D. Pa. Sept. 19, 2008): [D]efendants argue that plaintiffs lack standing because any RICO claims they pos ...
Individual mortgagors sued financial institutions for deceiving them into taking out inflated mortgages which they could not afford, precipitating their bankruptcy, in Roberts v. First Bank of Delaware, 2008 U.S. Dist. LEXIS 71266 (M.D. Pa. Sept. 19, 2008): [D]efendants argue…
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No Federal Jurisdiction under Grable If Adequate and Independent Bases for Liability Exist under State Law

The Defendants argued in their notice of removal in Martinez v. City of Faiurfield, 2008 U.S. Dist. LEXIS 73746 (E.D. Cal. Aug. 12, 2008), that federal question jurisdiction existed because the plaintiff alleged that the defendant police officer exceeded his authority under the U.S. Constitution and because the plaintiff’s Sixth and Seventh Causes of Action ...
The Defendants argued in their notice of removal in Martinez v. City of Faiurfield, 2008 U.S. Dist. LEXIS 73746 (E.D. Cal. Aug. 12, 2008), that federal question jurisdiction existed because the plaintiff alleged that the defendant police officer exceeded his…
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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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