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

Prolix Pleading as “Novelette” — Good Quote

From Fezzani v. Bear, Stearns & Co., Inc., 2008 U.S. Dist. LEXIS 71943 (S.D.N.Y. Sept. 23, 2008): Plaintiffs filed their first Amended Complaint on April 7, 2005. It is not so much a pleading as it is a novelette, 113 pages long with 357 separately numbered paragraphs. It layers allegations of various kinds, involving different ...
From Fezzani v. Bear, Stearns & Co., Inc., 2008 U.S. Dist. LEXIS 71943 (S.D.N.Y. Sept. 23, 2008): Plaintiffs filed their first Amended Complaint on April 7, 2005. It is not so much a pleading as it is a novelette, 113…
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Is the Jury’s Attention Spam No Longer than One Commercial Break? Ten-Minute Limit on Opening Statements

From Faulman v. Security Mut. Fin. Life Ins. Co., 2008 U.S. Dist. LEXIS 71227 (D.N.J. Sept. 12, 2008), on plaintiffs’ motion for a new trial: Plaintiffs argue that the Court's decision, after jury selection, to impose a ten-minute limitation on the parties' opening statements, on the basis that "jurors cannot absorb a long speech" (Tri ...
From Faulman v. Security Mut. Fin. Life Ins. Co., 2008 U.S. Dist. LEXIS 71227 (D.N.J. Sept. 12, 2008), on plaintiffs’ motion for a new trial: Plaintiffs argue that the Court’s decision, after jury selection, to impose a ten-minute limitation on…
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How a Federal Court Is to Approach an Issue of First Impression of State Law

From Casanova v. Marathon Corp., 2008 U.S. Dist. LEXIS 72571 (D.D.C. Sept. 24, 2008): Confronted with a case of first impression, the federal courts are to "endeavor to discover the law of the state on the point at issue by considering related decisions, decisions of other jurisdictions, analogies and any reliable data tending to convinc ...
From Casanova v. Marathon Corp., 2008 U.S. Dist. LEXIS 72571 (D.D.C. Sept. 24, 2008): Confronted with a case of first impression, the federal courts are to “endeavor to discover the law of the state on the point at issue by…
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Ballistics, Like Fingerprint, Evidence — Non-Scientific but Nonetheless Admissible under Daubert

From United States v. Glynn, 2008 U.S. Dist. LEXIS 72505 (S.D.N.Y. Sept. 22, 2008) (Rakoff, J.): Building on a ruling it had made two weeks earlier in another trial involving ballistics testimony, United States v. Damian Brown et al., 05 Cr. 538, th[is] Court, following a "Daubert" hearing, ruled from the bench that Valenti ...
From United States v. Glynn, 2008 U.S. Dist. LEXIS 72505 (S.D.N.Y. Sept. 22, 2008) (Rakoff, J.): Building on a ruling it had made two weeks earlier in another trial involving ballistics testimony, United States v. Damian Brown et al., 05…
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Standard of Review Under the Administrative Procedure Act

From Greater Yellowstone Coalition v. Kempthorne, 2008 U.S. Dist. LEXIS 69802 (D.D.C. Sept. 15, 2008): Under the APA, federal agency actions are to be held unlawful and set aside where they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." See 5 U.S.C. § 706(2)(A). While this standard ...
From Greater Yellowstone Coalition v. Kempthorne, 2008 U.S. Dist. LEXIS 69802 (D.D.C. Sept. 15, 2008): Under the APA, federal agency actions are to be held unlawful and set aside where they are “arbitrary, capricious, an abuse of discretion, or otherwise…
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RICO Standing — Creditor Lacks Standing to Sue Until Collateral and All Alternative Sources of Recovery Are Exhausted

From Harbinger Capital Partners Master Fund I, Ltd. v. Wachovia Capital Markets, LLC, 2008 U.S. Dist. LEXIS 67462 (S.D.N.Y. Aug. 26, 2008): [1. RICO Standing vs. Article III Standing.] [E]stablishing "RICO standing is a more rigorous matter than [establishing] standing under Article III." Denney v. Deutsche Bank AG, 44 ...
From Harbinger Capital Partners Master Fund I, Ltd. v. Wachovia Capital Markets, LLC, 2008 U.S. Dist. LEXIS 67462 (S.D.N.Y. Aug. 26, 2008): [1. RICO Standing vs. Article III Standing.] [E]stablishing “RICO standing is a more rigorous matter than [establishing] standing…
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Website Evidence — Judicial Notice of Data on Government Website

From Paralyzed Veterans of Am. v. McPherson, 2008 Sept. Dist. Sept 69542 (N.D. Cal. Sept. 8, 2008): The plaintiffs request the Court take judicial notice, pursuant to Federal Rule of Evidence 201(b)(2), of two documents that appeared on the [California] Secretary of State's Internet website. The first is a December 6, 2007 letter approvi ...
From Paralyzed Veterans of Am. v. McPherson, 2008 Sept. Dist. Sept 69542 (N.D. Cal. Sept. 8, 2008): The plaintiffs request the Court take judicial notice, pursuant to Federal Rule of Evidence 201(b)(2), of two documents that appeared on the [California]…
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Federal Rule of Evidence 502 Is Now Law

The President signed Federal Rule of Evidence 502 on Friday, September 19. It is now law and applicable to existing cases, in the discretion of the trial judge. The text is linked to our post of September 9, 2008. ...
The President signed Federal Rule of Evidence 502 on Friday, September 19. It is now law and applicable to existing cases, in the discretion of the trial judge. The text is linked to our post of September 9, 2008.
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Securities — Loss Causation Need Not Be Shown at Certification Stage to Invoke the Basic Presumption and Establish Predominance — Court Split

Judge Richard J. Sullivan, in Lapin v. Goldman, Sachs & Co., 2008 U.S. Dist. LEXIS 69574 (S.D.N.Y. Sept. 15, 2008), followed the majority of decisions in the Southern District of New York, and rejected the rule of the Fifth Circuit, in holding that loss causation need not be established by the plaintiff in order to invoke the fraud on the market presumption o ...
Judge Richard J. Sullivan, in Lapin v. Goldman, Sachs & Co., 2008 U.S. Dist. LEXIS 69574 (S.D.N.Y. Sept. 15, 2008), followed the majority of decisions in the Southern District of New York, and rejected the rule of the Fifth Circuit,…
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American Arbitration Association Rules Do Not Automatically Empower Arbitrators to Issue Injunctive Relief — Who Knew?

Courts have been known to point to Rule 34 of the Commercial Arbitration Rules of the American Arbitration Association as an agreed source for the issuance of injunctive relief. See, e.g., Delta T Corp. v. Sun-North Sys., 2006 U.S. Dist. LEXIS 83655 (E.D. Ky. Nov. 15, 2006). Reading the Rule, this is understandable. Reading it, you would think that the arb ...
Courts have been known to point to Rule 34 of the Commercial Arbitration Rules of the American Arbitration Association as an agreed source for the issuance of injunctive relief. See, e.g., Delta T Corp. v. Sun-North Sys., 2006 U.S. Dist.…
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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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