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

General Release in Class Action Bars Subsequent Claim by Non-Opt-Out Only If Issues in Second Suit Are Identical to Those in First — Circuit Split

The plaintiff in Pinnacle Pizza Co. v. Little Caesar Enters., 2008 U.S. Dist. LEXIS 44651 (D. S.D. June 5, 2008) — a Little Caesars franchise owner — did not opt out of a class action settlement in 2001 and, as a result, conferred a general release in favor the defendants. The defendants asserted that, although the claims in the class action were unrelat ...
The plaintiff in Pinnacle Pizza Co. v. Little Caesar Enters., 2008 U.S. Dist. LEXIS 44651 (D. S.D. June 5, 2008) — a Little Caesars franchise owner — did not opt out of a class action settlement in 2001 and, as…
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Expert Testimony Disallowed but Testimony from Witness Elucidating Research Allowed as Factual

In the MTBE mass tort litigation, In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig., 2008 U.S. Dist. LEXIS 44216 (S.D.N.Y. June 4, 2008), homeowners in a small town in Orange County, New York, contended that their property values had been damaged by MTBE pollution. Their expert was prepared to testify that property values had declined 15% based ...
In the MTBE mass tort litigation, In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., 2008 U.S. Dist. LEXIS 44216 (S.D.N.Y. June 4, 2008), homeowners in a small town in Orange County, New York, contended that their property values…
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Sanctions — Settlement & Mootness

Fleming & Assoc’s v. Newby & Tittle, 2008 U.S. App. LEXIS 11764 (5th Cir. May 30, 2008) presented the following factual scenario: September 14, 2006 — District Court issues order sanctioning plaintiffs’ counsel “for changing the [plaintiffs’] expert witness report” and orders reimbursement of certain defendants’ attorneys' ...
Fleming & Assoc’s v. Newby & Tittle, 2008 U.S. App. LEXIS 11764 (5th Cir. May 30, 2008) presented the following factual scenario: September 14, 2006 — District Court issues order sanctioning plaintiffs’ counsel “for changing the [plaintiffs’] expert witness report”…
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RICO — Plaintiff Need Not Have Relied on Mail Fraud If It Was in Fact Injured as a Result of the Fraud

From the Supreme Court's decision in Bridge v. Phoenix Bond & Indem. Co., 2008 U.S. LEXIS 4703 (U.S. June 9, 2008): 1. First Party Reliance Not Required. “[A] plaintiff asserting a RICO claim predicated on mail fraud need not show, either as an element of its claim or as a prerequisite to establishing proximate causation, ...
From the Supreme Court’s decision in Bridge v. Phoenix Bond & Indem. Co., 2008 U.S. LEXIS 4703 (U.S. June 9, 2008): 1. First Party Reliance Not Required. “[A] plaintiff asserting a RICO claim predicated on mail fraud need not show,…
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Expert Opinions Not Disclosed in Report — Admitted Anyway

Rule No. 1: Know your Judge. Under Fed.R.Civ.P. 37(c)(1), if a party fails to disclose expert opinions or exhibits in his or her Rule 26(a)(2)(B) report, the undisclosed matter is automatically excluded at trial, unless there is "substantial justification" for the failure to disclose or the "failure is harmless." That rule of exclusion is often strictly enforced. ...
Rule No. 1: Know your Judge. Under Fed.R.Civ.P. 37(c)(1), if a party fails to disclose expert opinions or exhibits in his or her Rule 26(a)(2)(B) report, the undisclosed matter is automatically excluded at trial, unless there is “substantial justification” for…
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§ 1927 Sanctions Not Precluded but Generally Inappropriate for Discovery Abuse Subject to Rule 37

From New England Surfaces v. E. I. DuPont de Nemours & Co., , 2008 U.S. Dist. LEXIS 43530 (D. Me. June 3, 2008): Unlike the inherent power, the Supreme Court and the First Circuit have not instructed that § 1927 can only be used when the Rules do not cover the conduct. Thus, the failure to invoke the Rules when they are available does ...
From New England Surfaces v. E. I. DuPont de Nemours & Co., , 2008 U.S. Dist. LEXIS 43530 (D. Me. June 3, 2008): Unlike the inherent power, the Supreme Court and the First Circuit have not instructed that § 1927…
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Spoliation — Not the Kind of Testimony You Want a Client to Give

From Brown v. Brown, 2008 Bankr. LEXIS 1503 (Bankr. D. N.H. May 19, 2008): Defense witness No. 1 testified: Q. And--and you have no documents because you--you don't retain documents. A. No. Q. You discard them. A. Yes. Q. And since the commencement of this litigation you continued to discard documents. < ...
From Brown v. Brown, 2008 Bankr. LEXIS 1503 (Bankr. D. N.H. May 19, 2008): Defense witness No. 1 testified: Q. And–and you have no documents because you–you don’t retain documents. A. No. Q. You discard them. A. Yes. Q. And…
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Failure to Provide Notice of Rule 45 Subpoenas and to Provide Copies of Documents Received Is Sanctionable under the Inherent Power of the Court

From Judson Atkinson Candies, Inc. v. Dhimantec, 2008 U.S. App. LEXIS 11771 (7th Cir. June 3, 2008): The facts strongly suggest that Judson Atkinson was less than forthright in its use of third-party subpoenas. First, defense counsel was not provided with copies of the subpoenas. Then, although Judson Atkinson began receiving documents i ...
From Judson Atkinson Candies, Inc. v. Dhimantec, 2008 U.S. App. LEXIS 11771 (7th Cir. June 3, 2008): The facts strongly suggest that Judson Atkinson was less than forthright in its use of third-party subpoenas. First, defense counsel was not provided…
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Factors in Setting Supersedeas Bond under Fed.R.Civ.P. 62(d) — District Court Jurisdiction to Enforce Judgment After Notice of Appeal

From Dell, Inc. v. Advicon Computer Servs., Inc., 2008 U.S. Dist. LEXIS 40881 (E.D. Mich. May 22, 2008): The Sixth Circuit has explained that this Rule "entitles a party who files a satisfactory supersedeas bond to a stay of money judgment as a matter of right." Arban v. West Pub. Corp., 345 F.3d 390, 409 (6th Cir. 2003). The amo ...
From Dell, Inc. v. Advicon Computer Servs., Inc., 2008 U.S. Dist. LEXIS 40881 (E.D. Mich. May 22, 2008): The Sixth Circuit has explained that this Rule “entitles a party who files a satisfactory supersedeas bond to a stay of money…
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Spoliation — State v. Federal Law

The Sixth Circuit, the lone Court of Appeals to hold that state law governs punishment for spoliation in federal court (see our posts of July 18, 2007, and September 28, 2007), seems to have abandoned that position — wisely — while acknowledging that in the past it has adhered to the contrary view and continuing to assert that: “We are bound by these decision ...
The Sixth Circuit, the lone Court of Appeals to hold that state law governs punishment for spoliation in federal court (see our posts of July 18, 2007, and September 28, 2007), seems to have abandoned that position — wisely —…
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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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