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

Waiver of Issue on Appeal by Failing to Argue It (as Opposed to Asserting It) in Opening Brief

From Mullarkey v. Tamboer, 2008 U.S. App. LEXIS 16238 (3d Cir. July 31, 2008): Furthermore, while Mullarkey asserted in his opening brief that he could seek a civil remedy for the Tamboers' violation of the federal RICO statute, he failed to present any argument in support. Thus, we deem this claim to be waived. Laborers' Intern. Un ...
From Mullarkey v. Tamboer, 2008 U.S. App. LEXIS 16238 (3d Cir. July 31, 2008): Furthermore, while Mullarkey asserted in his opening brief that he could seek a civil remedy for the Tamboers’ violation of the federal RICO statute, he failed…
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Supplemental Jurisdiction — Issues of First Impression under State Law Leads Court to Decline to Exercise Federal Jurisdiction Following Dismissal of Federal Claims

From Judge Mark R. Kravitz’s opinion in Hernandez v. Carbone, 2008 U.S. Dist. LEXIS 57264(D. Conn. July 29, 2008): Having dismissed all of Mr. Hernandez's federal claims against Mr. Carbone, the Court declines to exercise supplemental jurisdiction over his state constitutional claims under 28 U.S.C. § 1367(c)(3). The Second Circuit ha ...
From Judge Mark R. Kravitz’s opinion in Hernandez v. Carbone, 2008 U.S. Dist. LEXIS 57264(D. Conn. July 29, 2008): Having dismissed all of Mr. Hernandez’s federal claims against Mr. Carbone, the Court declines to exercise supplemental jurisdiction over his state…
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Removal — Eleventh Circuit Adopts Last-Served Defendant Rule, Allowing Removal within 30 Days of Service on Last Defendant

From Bailey v. Janssen Pharmaceutica, Inc., 2008 U.S. App. LEXIS 16042 (11th Cir. July 29, 2008): The action was originally filed in state court and removed under 28 U.S.C. § 1441(a), pursuant to § 1446(b), by the last-served defendant more than thirty days after service on the other defendants. *** This case presents an issu ...
From Bailey v. Janssen Pharmaceutica, Inc., 2008 U.S. App. LEXIS 16042 (11th Cir. July 29, 2008): The action was originally filed in state court and removed under 28 U.S.C. § 1441(a), pursuant to § 1446(b), by the last-served defendant more…
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RICO / Mail Fraud — Bridge Does Not Dispense with Reliance Requirement Where Reliance Affirmatively Pled

After the district judge denied class certification in Dungan v. Academy at Ivy Ridge, 2008 U.S. Dist. LEXIS 56757 (N.D.N.Y. July 21, 2008), the plaintiffs sought reconsideration on the ground that the Supreme Court’s June 9, 2008 decision in Bridge v. Phoenix Bond & Indem. Co., 128 S. Ct. 2131 (2008), constituted a material change in controlling law ...
After the district judge denied class certification in Dungan v. Academy at Ivy Ridge, 2008 U.S. Dist. LEXIS 56757 (N.D.N.Y. July 21, 2008), the plaintiffs sought reconsideration on the ground that the Supreme Court’s June 9, 2008 decision in Bridge…
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Sanctions for Frivolous Removal — § 1447(c) Trumps § 1927 — Attorneys’ Fees Application Untimely After 14 Days Post-Remand

The plaintiff in Jericho Group, Ltd. v. Midtown Development, LP, 2008 U.S. Dist. LEXIS 52706 (S.D.N.Y. May 22, 2008), prevailed on a motion to remand but waited 81 days after the case was remanded to seek attorneys' fees, moving under 28 U.S.C. §§ 1447(c) and 1927. The Court ruled that a motion for attorneys' fees under § 1447(c) must be made within 14 da ...
The plaintiff in Jericho Group, Ltd. v. Midtown Development, LP, 2008 U.S. Dist. LEXIS 52706 (S.D.N.Y. May 22, 2008), prevailed on a motion to remand but waited 81 days after the case was remanded to seek attorneys’ fees, moving under…
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Electronically-Stored Information — Metadata Associated with Public Records Are Themselves Public Records within Washington State Statute

The issue in O’Neill v. City of Shoreline, 2008 Wash. App. LEXIS 1740 (Wash. Ct. App. July 21, 2008), was whether metadata in the electronic version of email subject to production under the Public Records Act of the State of Washington (PRA) were, like the email, subject to disclosure under the PRA. A "public record" is:
The issue in O’Neill v. City of Shoreline, 2008 Wash. App. LEXIS 1740 (Wash. Ct. App. July 21, 2008), was whether metadata in the electronic version of email subject to production under the Public Records Act of the State of…
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Summary Judgment — Some Thoughts About the Proposed Amendments to Federal Rule of Civil Procedure 56

Following up on yesterday’s posting discussing the proposed amendments to Federal Rule of Civil Procedure 26(b)(2), my thoughts about the Advisory Committee's proposed amendments to Rule 56 (summary judgment) follow. The text of the proposal is available at our posting of July 4, 2008: The version going out for public comments is a distinct improvement o ...
Following up on yesterday’s posting discussing the proposed amendments to Federal Rule of Civil Procedure 26(b)(2), my thoughts about the Advisory Committee’s proposed amendments to Rule 56 (summary judgment) follow. The text of the proposal is available at our posting…
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Experts — Some Thoughts About the Proposed Amendments to Federal Rule of Civil Procedure 26

The Advisory Committee's proposed amendments to Rule 26 concerning expert discovery and disclosure are posted at the blog entry for July 4, 2008. My thoughts: The Rule 26 amendments extremely well done. I like the balances struck, the language and particularly the new summary of opinions of Rule 26(a)(2)(A) witnesses. There are two practical problems that ...
The Advisory Committee’s proposed amendments to Rule 26 concerning expert discovery and disclosure are posted at the blog entry for July 4, 2008. My thoughts: The Rule 26 amendments extremely well done. I like the balances struck, the language and…
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Securities — PSLRA — One of Two Proposed Lead Plaintiffs Rejected as “Pawn of Counsel”

From In re Monster Worldwide, Inc. Secs. Litig., 2008 U.S. Dist. LEXIS 53466 (S.D.N.Y. July 14, 2008): Here, as part of class certification discovery, defendants deposed STA-ILA [Steamship Trade Association-International Longshoremen's Association Pension Fund] witness Horace Alston, Co-Chairman of the fund, who testified that he was the ...
From In re Monster Worldwide, Inc. Secs. Litig., 2008 U.S. Dist. LEXIS 53466 (S.D.N.Y. July 14, 2008): Here, as part of class certification discovery, defendants deposed STA-ILA [Steamship Trade Association-International Longshoremen’s Association Pension Fund] witness Horace Alston, Co-Chairman of the…
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Removal — Lack of Subject Matter Jurisdiction Waived? Dilatoriness in Making Remand Motion Relevant to Court’s Decision

The defendant in Neville v. Value City Dep’t Stores, LLC, 2008 U.S. Dist. LEXIS 55284 (S.D. Ill. July 18, 2008), removed this trip and fall case based on diversity jurisdiction. More than a year later, the plaintiff filed a motion to remand, claiming that the amount in controversy did not exceed $75,000: Although § 1447(c) provides no ...
The defendant in Neville v. Value City Dep’t Stores, LLC, 2008 U.S. Dist. LEXIS 55284 (S.D. Ill. July 18, 2008), removed this trip and fall case based on diversity jurisdiction. More than a year later, the plaintiff filed a motion…
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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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