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

Privilege: Employees’ Transmission of Purely Factual Info to GC at GC’s Request, to Permit GC to Give Legal Advice, Is Privileged — Test: Is Obtaining/Providing Advice 1 Significant Purpose of Communications? — Facts Still Discoverable

FTC v. Boehringer Ingelheim Pharms., Inc., 892 F.3d 1264 (D.C. Cir. 2018) (Kavanaugh, J.):   The pharmaceutical company Boehringer claimed attorney-client privilege over certain documents subpoen ...
FTC v. Boehringer Ingelheim Pharms., Inc., 892 F.3d 1264 (D.C. Cir. 2018) (Kavanaugh, J.):   The pharmaceutical company Boehringer claimed attorney-client privilege over certain documents subpoenaed by the Federal Trade Commission. The attorney-client privilege [**2]  applies to a communication between…
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Circuit Splits: Court Reluctant to Create Circuit Split, Does So Only If a Compelling Basis Exists — Reluctance Especially Acute If Rules at Issue Are Best Applied Uniformly

Guerrero-Sanchez v. Warden York Cty. Prison, 2018 U.S. App. LEXIS 27445, 2018 WL 4608970 (3d Cir. Sept. 26, 2018): *** As we have discussed throughout our decision, our holding t ...
Guerrero-Sanchez v. Warden York Cty. Prison, 2018 U.S. App. LEXIS 27445, 2018 WL 4608970 (3d Cir. Sept. 26, 2018): *** As we have discussed throughout our decision, our holding today is in line with that of the Ninth Circuit,…
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Experts Can Rely on Data Provided without Independently Verifying It — Factual Basis Goes to Credibility, Not Admissibility — Proper Subject of Cross

Mighty Enters. v. She Hong Indus. Co., 2018 U.S. App. LEXIS 22670 (9th Cir. Aug. 15, 2018) (unpublished): MEMORANDUM* She ...
Mighty Enters. v. She Hong Indus. Co., 2018 U.S. App. LEXIS 22670 (9th Cir. Aug. 15, 2018) (unpublished): MEMORANDUM* She Hong Industrial appeals from the District Court's entry of final judgment after a jury trial and the District…
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Subsequent Judge Not Bound by Interlocutory Order of Predecessor — May Reconsider It Per Law-of-the-Case Doctrine — Emergence of Circuit Split Can Justify Reconsideration

Grimm v. Gloucester Cty. Sch. Bd., 302 F. Supp. 3d 730 (E.D. Va. 2018): Pending before the Court is an Amended Motion to Dismiss pursuant to
Grimm v. Gloucester Cty. Sch. Bd., 302 F. Supp. 3d 730 (E.D. Va. 2018): Pending before the Court is an Amended Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (ECF No. 135) filed by Defendant Gloucester…
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Inherent Power Sanctions Apt for Party’s Threats to Sue Witnesses, Opposing Counsel If They Fail to Comply with Demands — District Court Retains Jurisdiction to Sanction During Appeal, Needn’t Explain Why Sanctions Denied

Greene v. Indep. Pilots Ass'n, 2018 U.S. App. LEXIS 28271 (6th Cir. Oct. 4, 2018): Douglas Walter Greene, a pro se plaintiff, appeals the district court's order imposing monetar ...
Greene v. Indep. Pilots Ass'n, 2018 U.S. App. LEXIS 28271 (6th Cir. Oct. 4, 2018): Douglas Walter Greene, a pro se plaintiff, appeals the district court's order imposing monetary sanctions against him and denying his cross-motion for sanctions against…
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Experts: When Testimony Is Based on Experience, Tribunal Determines Reliability with Reference to The Nature of The Issue, The Expert’s Particular Expertise & The Subject of the Testimony

F & H Coatings, LLC v. Acosta, 900 F.3d 1214 (10th Cir. 2018): F & H Coatings, L.L.C. ("F & H") seeks review of a final order of the Occupational Safety and Health Review Comm ...
F & H Coatings, LLC v. Acosta, 900 F.3d 1214 (10th Cir. 2018): F & H Coatings, L.L.C. ("F & H") seeks review of a final order of the Occupational Safety and Health Review Commission ("Commission"), and asks us…
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Rule 11 Sanctions — Failure to Request Limitation of Award Based on Inability to Pay or to Offer Evidence Showing Same Waives Issue — Does Judge Have Ethical Duty to Refer Offender to Disciplinary Authorities?

Young v. Smith, 2018 U.S. App. LEXIS 27331 (3d Cir. Sept. 25, 2018): Appellant Cynthia Pollick appeals the District Court's order denying her fee petition, imposing sanction ...
Young v. Smith, 2018 U.S. App. LEXIS 27331 (3d Cir. Sept. 25, 2018): Appellant Cynthia Pollick appeals the District Court's order denying her fee petition, imposing sanctions in the aggregate amount of $25,000, and referring Pollick to the Disciplinary …
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Witness Litigation Privilege Gives Absolute Immunity from Civil Action for Testimony & Prep, Bars RICO Claim vs Expert — Common Law Immunities Must Be Expressly Eliminated — Perjury ≠ Predicate Act — Civ, Crim RICO Don’t Always Have Same Reach

Day v. Johns Hopkins Health Sys. Corp., 2018 WL 5306886 (4th Cir. Oct. 6, 2018) (2-1 decision): *1 Plaintiffs brought suit against Dr. Paul Wheeler and Johns Hopkins Health System et al. for Wheeler’s actions as an expert witness in administrative hearings for the Federal Black Lung Program. This lawsuit inc ...
Day v. Johns Hopkins Health Sys. Corp., 2018 WL 5306886 (4th Cir. Oct. 6, 2018) (2-1 decision): *1 Plaintiffs brought suit against Dr. Paul Wheeler and Johns Hopkins Health System et al. for Wheeler’s actions as an expert witness in …
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Rule 11: Court Can’t Read Improper Purpose into Document Well-Grounded in Fact & Law unless Improper Purpose Is Objectively Ascertainable — Disagreement About Law ≠ Frivolous — Arg. Must’ve Been Rejected by Well-Established Case Law

Day v. Johns Hopkins Health Sys. Corp., 2018 WL 5306886 (4th Cir. Oct. 6, 2018) (2-1 decision): *1 Plaintiffs brought suit against Dr. Paul Wheeler and Johns Hopkins Health System et al. for Wheeler’s actions as an expert witness in administrative hearings for the Federal Black Lung Program. This lawsuit in ...
Day v. Johns Hopkins Health Sys. Corp., 2018 WL 5306886 (4th Cir. Oct. 6, 2018) (2-1 decision): *1 Plaintiffs brought suit against Dr. Paul Wheeler and Johns Hopkins Health System et al. for Wheeler’s actions as an expert witness in …
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Judicial Notice of Internet Evidence: Court May Take Judicial Notice of Wayback Machine (Internet Archive) Documents

Safeway Transit LLC v. Disc. Party Bus, Inc., 2018 U.S. Dist. LEXIS 137185, 2018 WL 3831345 (D. Minn. Aug. 13, 2018): The parties to this case are Twin Cities party bus proprietors. In September 2015, P ...
Safeway Transit LLC v. Disc. Party Bus, Inc., 2018 U.S. Dist. LEXIS 137185, 2018 WL 3831345 (D. Minn. Aug. 13, 2018): The parties to this case are Twin Cities party bus proprietors. In September 2015, Plaintiff Safeway Transit LLC…
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Recent Posts

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

RICO and Injunctions: (1) State Court Actions Designed to Perpetuate and Monetize a RICO Violation Are Enjoinable under RICO, Even Though They Are Not Themselves Alleged to Be Predicate Acts [Note: Noerr Pennington Applies in RICO Actions] — (2) Although Civil RICO’s Text and Legislative History Fail to Reveal Any Intent to Override the Provisions of the Federal Arbitration Act, Arbitrations Are Enjoinable Under the “Effective Vindication” Doctrine Where They Operate As a Prospective Waiver of a Party’s Right to Pursue Statutory RICO Remedies — (3) Arbitration Findings May Be Given Collateral Estoppel Effect in a Civil RICO Action — (4) Injunction of Non-Corrupt State Court Litigations That Furthers a RICO Violation Are Enjoinable Under the Anti-Injunction Act’s “Expressly Authorized” Exception — (5) “The Irreparable Harm Requirement Is The Single Most Important Prerequisite For The Issuance Of A Preliminary Injunction” (Good Quote) — (6) When Injunction Is Based on “Serious Questions on the Merits” Rather Than “Likelihood of Success,” Court May Rely on Unverified Pleadings and Attached Exhibits to Assess the Merits, Unless the Opponent Has Raised Substantial Questions (Here, the Opponent Failed to Request an Evidentiary Hearing) — (7) Whether Amended Pleading Moots An Appeal Turns on Whether It Materially Changes the Substantive Basis for the Appeal — (8) Meaning of “In That” (“Used To Introduce A Statement That Explains Or Gives More Specific Information” About A Prior Statement)

RICO: Fraudulent Concealment Must Prevent Discovery of the Injury to Toll Statute of Limitations

Rule 37 Default Judgment Sanction: (1) Abuse of Discretion Review = Legal Conclusions De Novo. Factual Findings for Clear Error — (2) Client May Be Sanctioned for Misconduct of Its Counsel, Though Here Client Was Directly Involved in Bad Faith Misbehavior — (3) Is There A Difference, Under Rule 11 As Opposed to Rule 37, Concerning Whether A Client Can Be Sanctioned for Its Counsel’s Misconduct? — (4) While Sanctions of Last Resort (Dismissal/Default) Are Apt Only If Lesser Sanctions Wouldn’t Ensure Compliance, Rule 37 Doesn’t Require the Vain Gesture of First Imposing Lessert Sanctions When It Is Clear They Would be Ineffective — (5) Court’s Reconsideration of Non-Final Orders Is Governed by Rule 54(b), And Court’s Discretion under That Rule Is Governed by the Law-of-the-Case-Doctrine

RICO: (1) Special Pleading Requirements? — (2) Although Enterprise Must Be More Than a Summation of the Predicate Acts, The Predicate Acts Can Demonstrate the Existence of the Enterprise — (3) Requirement That Association-in-Fact Exist For Purposes Other Than Just to Commit Predicate Acts Merely Requires Continuity — (4) To State an Association-in-Fact Enterprise Consisting of One Natural Person and Collection of Legal Fictions Requires Factual Detail As to How They Acted Together — (5) “A § 1962(c) Enterprise Must Be More Than An Association of Individuals Or Entities Conducting the Normal Affairs of a Defendant Corporation” (Good Quote)

RICO: (1) Fee Award May Exceed Amount Recovered — Strict Proportionality Not Required — (2) Nonmonetary Benefits and Injunctive Relief Recovered Also Relevant Factors — (3) Loss on Some Claims Need Not Result in Lowered Fees, Especially When Both Arise Out of The Same Nucleus of Operative Facts

RICO: Indirect Purchasers (Car Buyers/Renters) Lack Standing to Sue Manufacturers for RICO Violations Even Though Intermediaries (Auto Dealer Direct Purchasers) Lack Any Damages

RICO: Statutory Requirement that RICO Be Liberally Construed Does Not Establish a More Liberal Pleading Standard for RICO Claims — “To Be Sure, Adequately Pleading a RICO Claim Can Be Challenging” (Good Quote) — Court May Dismiss Action Pursuant to Rule 41(b) Absent A Motion

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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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