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

Error to Apply Zubulake Factors to Discovery Dispute Involving Paper Documents

From Tierno v. Rite Aid Corp., 2008 U.S. Dist. LEXIS 58748 (N.D. Cal. July 31, 2008): Rite Aid correctly argues that the seven-factor Zubulake test which Judge Larson applied is intended solely for electronic discovery, not for discovery of paper documents. The Zubulake opinion sought to refine a set of factors which had b ...
From Tierno v. Rite Aid Corp., 2008 U.S. Dist. LEXIS 58748 (N.D. Cal. July 31, 2008): Rite Aid correctly argues that the seven-factor Zubulake test which Judge Larson applied is intended solely for electronic discovery, not for discovery of paper…
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Appeals — Factual Arguments Disregarded Where Cited Material Not Included in Appendix, Even if Buried in the Record

From Newman v. State Farm Fire & Cas. Co., 2008 U.S. App. LEXIS 16690 (10th Cir. Aug. 5, 2008): Before considering the facts and issues in this appeal, we address a preliminary matter concerning State Farm's improper citation in the fact section of its brief, and throughout other parts of its brief to a lesser extent, to transcript and d ...
From Newman v. State Farm Fire & Cas. Co., 2008 U.S. App. LEXIS 16690 (10th Cir. Aug. 5, 2008): Before considering the facts and issues in this appeal, we address a preliminary matter concerning State Farm’s improper citation in the…
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Attorney-Client Privilege — “At Issue” Waiver — Mere Mention of Advice and Relevance Insufficient

From Hodak v. Madison Capital Mgmt., LLC, 2008 U.S. Dist. LEXIS 57289 (N.D. Ill. July 28, 2008): Advice of counsel is not placed “in issue” during litigation simply because it is mentioned by a party. Advice is not in issue merely because it is relevant, and does not necessarily become in issue merely because the ...
From Hodak v. Madison Capital Mgmt., LLC, 2008 U.S. Dist. LEXIS 57289 (N.D. Ill. July 28, 2008): Advice of counsel is not placed “in issue” during litigation simply because it is mentioned by a party. Advice is not in issue…
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28 U.S.C. § 1292(b) Certification Standard

From Florio v. City of New York, 2008 U.S. Dist. LEXIS 59022 (S.D.N.Y. Aug. 5, 2008) (Scheindlin, J.): It is a "basic tenet of federal law to delay appellate review until a final judgment has been entered." However, a court, in its discretion, may certify an interlocutory order for appeal if the order "[1] involves a controlling questi ...
From Florio v. City of New York, 2008 U.S. Dist. LEXIS 59022 (S.D.N.Y. Aug. 5, 2008) (Scheindlin, J.): It is a “basic tenet of federal law to delay appellate review until a final judgment has been entered.” However, a court,…
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Ninth Circuit Holds that American Pipe Tolls Statute of Limitations for Absent Class Member Who Files Suit Before Class Certification Decided

Deciding what it described as an issue of first impression in the Circuit, the Ninth Circuit held in In re Hanford Nuclear Reservation Lit., 2008 U.S. App. LEXIS 16479 (9th Cir. July 29, 2008), that Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974) tolls the statute of limitations for a plaintiff who files a separate action pending class certificatio ...
Deciding what it described as an issue of first impression in the Circuit, the Ninth Circuit held in In re Hanford Nuclear Reservation Lit., 2008 U.S. App. LEXIS 16479 (9th Cir. July 29, 2008), that Am. Pipe & Constr. Co.…
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Decision Declining to Exercise Supplemental Jurisdiction under § 1367(c) Is Reviewable under § 1291 Despite § 1447(d) — Mandamus Inapt

In California Dept. of Water Resources v. Powerex Corp., 2008 U.S. App. LEXIS 16252 (9th Cir. July 22, 2008), the Ninth Circuit held that 28 U.S.C. § 1447(d) does not foreclose appellate review of a district court's decision to decline to exercise supplemental jurisdiction under § 1367(c). The Powerex Court held that the right to appeal lie ...
In California Dept. of Water Resources v. Powerex Corp., 2008 U.S. App. LEXIS 16252 (9th Cir. July 22, 2008), the Ninth Circuit held that 28 U.S.C. § 1447(d) does not foreclose appellate review of a district court’s decision to decline…
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Experts — Improper to Cross Examine Expert with Report or Deposition Testimony of Non-Testifying Expert

In In re Hanford Nuclear Reservation Lit., 2008 U.S. App. LEXIS 16479 (9th Cir. July 29, 2008), the defendants succeeded in barring expert 1 (Dr. Ruttenber) from testifying. Plaintiffs instead called expert 2 (Dr. Davies), who never read the report or deposition of expert 1, but did rely on expert 1’s dosage estimates. At trial, defense counsel on cross-e ...
In In re Hanford Nuclear Reservation Lit., 2008 U.S. App. LEXIS 16479 (9th Cir. July 29, 2008), the defendants succeeded in barring expert 1 (Dr. Ruttenber) from testifying. Plaintiffs instead called expert 2 (Dr. Davies), who never read the report…
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Sanctions Imposed for Failing to Withdraw Position during 21-Day Safe Harbor

It used to be the case that there was no duty to withdraw a position From Fabriko Acquisition Corp. v. Prokos, , 2008 U.S. App. LEXIS 16074 (7th Cir. July 29, 2008): Although Sorenson informed Fabriko of the causation problem in a letter and subsequently in a formal motion for sanctions, Fabriko did not take advantage of the 21-day windo ...
It used to be the case that there was no duty to withdraw a position From Fabriko Acquisition Corp. v. Prokos, , 2008 U.S. App. LEXIS 16074 (7th Cir. July 29, 2008): Although Sorenson informed Fabriko of the causation problem…
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Federal Jurisdiction — What Does Grable Mean?

The defendant in Singh v. Duane Morris LLP, 2008 U.S. App. LEXIS 16191 (5th Cir. July 30, 2008), had unsuccessfully represented the plaintiff in a trademark action. The plaintiff, in this action, sued in Texas state court for malpractice, alleging that the defendant was negligent in failing to offer available proof of secondary meaning, leading to the loss ...
The defendant in Singh v. Duane Morris LLP, 2008 U.S. App. LEXIS 16191 (5th Cir. July 30, 2008), had unsuccessfully represented the plaintiff in a trademark action. The plaintiff, in this action, sued in Texas state court for malpractice, alleging…
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Assessing the Good Faith of a Settlement that Affects the Rights of Non-Settling Co-Defendants

From Judge Shira A. Scheindlin’s opinion in In re Methyl Tertiary Butyl Ether ("Mtbe") Products Liability Litigation, 2008 U.S. Dist. LEXIS 57504 (S.D.N.Y. July 29, 2008): ExxonMobil's objections to a determination of a good faith settlement are relatively limited. It concedes that the settling parties have defined a "ballpark" for cla ...
From Judge Shira A. Scheindlin’s opinion in In re Methyl Tertiary Butyl Ether (“Mtbe”) Products Liability Litigation, 2008 U.S. Dist. LEXIS 57504 (S.D.N.Y. July 29, 2008): ExxonMobil’s objections to a determination of a good faith settlement are relatively limited. It…
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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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