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

Does the Failure to File a Rule 50(b) Motion Deprive an Appellate Court of Subject Matter Jurisdiction to Consider the Sufficiency of the Evidence? — Impact of Bowles v. Russell Analysis

Fed.R.Civ.P. 50(b) provides: Renewing the Motion After Trial; Alternative Motion for a New Trial. If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion. ...
Fed.R.Civ.P. 50(b) provides: Renewing the Motion After Trial; Alternative Motion for a New Trial. If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted…
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LLC’s Citizenship Determined by the Citizenship of Its Members, Not by State of Organization — Issue of First Impression for Fifth Circuit

From Harvey v. Grey Wolf Drilling Co., 2008 U.S. App. LEXIS 19564 (5th Cir. Sept. 15, 2008): This appeal presents an issue of first impression in this circuit: whether, for purposes of federal diversity jurisdiction, a limited liability company ("LLC") is a citizen of the state where it is organized or is a citizen of the states of which ...
From Harvey v. Grey Wolf Drilling Co., 2008 U.S. App. LEXIS 19564 (5th Cir. Sept. 15, 2008): This appeal presents an issue of first impression in this circuit: whether, for purposes of federal diversity jurisdiction, a limited liability company (“LLC”)…
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Howard Hughes and RICO — Fraudulent Concealment Unavailing to Revive 30-Year-Old Claim Against Hughes’ Estate

The Melvin Dummar/Howard Hughes relationship not only lives on in film. In Dummar v. Lummis, 2008 U.S. App. LEXIS 19513 (10th Cir. Sept. 12, 2008), Mr. Dummar maintained that almost 30 years after an unsuccessful suit for a portion of the Hughes estate based on a holographic will, he obtained information regarding misconduct related to the trial he lost in t ...
The Melvin Dummar/Howard Hughes relationship not only lives on in film. In Dummar v. Lummis, 2008 U.S. App. LEXIS 19513 (10th Cir. Sept. 12, 2008), Mr. Dummar maintained that almost 30 years after an unsuccessful suit for a portion of…
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Expert Evidence Not Necessarily Sufficient to Preclude Summary Judgment — Good Quote; Statements of Undisputed Fact

Experts and Summary Judgment. The Second Circuit affirmed summary judgment for the plaintiff in Major League Baseball Props., Inc. v. Salvino, Inc., 2008 U.S. App. LEXIS 19349 (2d Cir. Sept. 12, 2008), in substantial part because the defendant’s economic expert did not conduct adequate empirical analysis to support opinions he offered in opposition ...
Experts and Summary Judgment. The Second Circuit affirmed summary judgment for the plaintiff in Major League Baseball Props., Inc. v. Salvino, Inc., 2008 U.S. App. LEXIS 19349 (2d Cir. Sept. 12, 2008), in substantial part because the defendant’s economic expert…
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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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Filing Frivolous Notice of Appeal Does Not Divest District Court of Jurisdiction — Dismissal without Leave to Amend but with Leave to Argue for Amendment Forecloses District Court Jurisdiction

From Chien v. Skystar Bio Pharm. Co., 2008 U.S. Dist. LEXIS 69084 (D.Conn. Sept. 11, 2008): [A] Notice of Appeal does not divest the district court of jurisdiction in all cases. If a litigant files a "plainly unauthorized notice of appeal which confers on [the Court of Appeals] the power to do nothing but dismiss the appeal," the dist ...
From Chien v. Skystar Bio Pharm. Co., 2008 U.S. Dist. LEXIS 69084 (D.Conn. Sept. 11, 2008): [A] Notice of Appeal does not divest the district court of jurisdiction in all cases. If a litigant files a “plainly unauthorized notice of…
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Sanctions — Ambiguous Law and Hidden Facts — Good Quote

One of the plaintiffs in Pafumi v. Davidson, 2008 U.S. Dist. LEXIS 67036 (S.D. Fla. Sept. 3, 2008), and one of his non-party cohorts were guilty of criminal conduct and SEC violations, so they commenced this securities fraud action, in the Court’s words, to “'misle[a]d the Court into believing that they were victims of fraud when, in fact, they were the p ...
One of the plaintiffs in Pafumi v. Davidson, 2008 U.S. Dist. LEXIS 67036 (S.D. Fla. Sept. 3, 2008), and one of his non-party cohorts were guilty of criminal conduct and SEC violations, so they commenced this securities fraud action, in…
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Party Directly Injured by RICO Violation Has Standing Even If It Is Not the Defendants’ Intended or Primary Victim

Plaintiff RWB in RWB Serv., LLC v. Hartford Computer Group, 2008 U.S. App. LEXIS 18142 (7th Cir. Aug. 25, 2008), complained that the defendants misappropriated used cameras in which the plaintiff had security interests and then resold the cameras as new to Wal-Mart, thus stealing from the plaintiff in order to defraud Wal-Mart. The district court dismissed t ...
Plaintiff RWB in RWB Serv., LLC v. Hartford Computer Group, 2008 U.S. App. LEXIS 18142 (7th Cir. Aug. 25, 2008), complained that the defendants misappropriated used cameras in which the plaintiff had security interests and then resold the cameras as…
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Federal Litigation: Where Did It Go Off Track? — The Poetic Equivalent

A distinguished trial lawyer from Chicago, Bob Cummins, penned what I consider a poetic sibling to my article, Federal Litigation: Where Did It Go Off Track? (published in the Summer 2008 issue of Litigation and posted on the Recent Articles page at http://www.josephny_live.com/articles/viewarticle.php?53). Bob’s classic sonnet follows: ...
A distinguished trial lawyer from Chicago, Bob Cummins, penned what I consider a poetic sibling to my article, Federal Litigation: Where Did It Go Off Track? (published in the Summer 2008 issue of Litigation and posted on the Recent Articles…
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Spoliation — the Ellison/Oracle Decision — Adverse Inference Applied on Summary Judgment

The press has widely reported the fact that Larry Ellison, founder of Oracle, has been sanctioned for spoliation. The opinion, Nursing Home Pension Fund v. Oracle Corp., 2008 U.S. Dist. LEXIS 66740 (N.D. Cal. Sept. 2, 2008), has a few points of interest. First, the plaintiffs complained that the litigation hold notice went out to only 30 of Oracle ...
The press has widely reported the fact that Larry Ellison, founder of Oracle, has been sanctioned for spoliation. The opinion, Nursing Home Pension Fund v. Oracle Corp., 2008 U.S. Dist. LEXIS 66740 (N.D. Cal. Sept. 2, 2008), has a few…
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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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