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

December 6, 2023

(1) Judicial Estoppel — Third Circuit Factors — Bad Faith Required; (2) To Prove Bad Faith, Must Show (i) Culpable Behavior (ii) That Assaults The Dignity Or Authority Of The Court; (3) Earlier Inconsistent Position Must Have Been Accepted by the Court Because, Unlike Equitable Estoppel, Judicial Estoppel Focuses on the Court, Not the Opposing Party (Rare Exception to Success Requirement in Bankruptcy Context); (4) Generally, Defendants Have Flexibility in Asserting Positions in Early Stages of Litigation; (5) Judicial Estoppel (Like Inherent Power Sanctions)Appropriate Only If Sanctions Rules And Statutes Inadequate; (6) Good Quote: “The District Court Sought to Force a Square Peg into a Round Hole”

Pace-O-Matic, Inc. v. Eckert, Seamans Cherin & Mellott, LLC, 2023 U.S. App. LEXIS 30086 (3d Cir. Nov. 13, 2023) (unpublished): OPINION** Eckert Sea ...
Pace-O-Matic, Inc. v. Eckert, Seamans Cherin & Mellott, LLC, 2023 U.S. App. LEXIS 30086 (3d Cir. Nov. 13, 2023) (unpublished): OPINION** Eckert Seamans Cherin & Mellott, LLC (“Eckert”), Hawke McKeon & Sniscak, LLP (“HMS”), and Greenwood Gaming and Entertainment, …
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Attorney-Client Privilege and Appealability: (1) Viability of Perlman Doctrine (Allowing Non-Party to Appeal Discovery Order) Is Unclear After Mohawk, But Party-Sought Review of Privilege Ruling Is Clearly Not Permitted; (2) Opinion Work Product Enjoys Nearly Absolute Immunity But Is Subject to Crime-Fraud Exception; (3) Crime Fraud Factors (4th Cir.): (i) Client Was Engaged In Or Planning Crime When Seeking Counsel, and (ii) The Privileged Materials Bear A Close Relationship to The Scheme; (4) Burden of Proof Less Than Preponderance — Simply Must Subject Opposing Party to Risk of Non-Persuasion If Unrebutted; (5) Client Waives Privilege By Testifying for Lawyer in Bar Proceedings; (6) Once Case Settled, Client’s Interest in Work Product Protection Is Not A Compelling Reason to Deny Discovery; (7) Good Quote: “Certainly, A District Court Does Not Clearly Err When Relying On Sworn Statements Over Negotiation-Driven Puffery”

Under Seal 1 v. United States (In re Subpoenas.), 2023 U.S. App. LEXIS 31137 (4th Cir. Nov. 22, 2023): Opinion Appellant John Doe is a medical malpractice attorney. While representing a client, Jane Roe, he engaged in settle ...
Under Seal 1 v. United States (In re Subpoenas.), 2023 U.S. App. LEXIS 31137 (4th Cir. Nov. 22, 2023): Opinion Appellant John Doe is a medical malpractice attorney. While representing a client, Jane Roe, he engaged in settlement negotiations with…
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Recent Articles

RICO — Pleading Conspiracy — Plaintiffs Must Plausibly Allege That the Defendants Knowingly Joined the RICO Conspiracy — Sparse Allegations of Knowledge of Fraud Due to Participation in a Commercial Transaction Insufficient to State RICO Conspiracy Claim Where Allegations Not Inconsistent with Ordinary Commercial Behavior — While Knowledge May Be Pled “Generally” under Rule 9(b), It Cannot Be Alleged Conclusorily and Must Satisfy the Twiqbal Plausibility Standard

Depositions: Improper to Object to Form to Straightforward Questions (Not Compound, Vague, Leading or Speculative) — Lack of Foundation Objection Improper in 30(b)(6) Deposition — Improper to “Educate” Witness During Breaks of 30(b)(6) Deposition Through Witness Calls to Knowledgeable Corporate Colleagues — Magistrate Judge May Impose Financial Sanctions

Spoliation/Sanctions: “A Party Does Not Spoliate Evidence When, Without Notice Of The Evidence’s Potential Relevance, It Destroys The Evidence According To Its Policy Or In The Normal Course Of Its Business” (Good Quote)

RICO: Fraud on Government Entities Causing Plaintiffs to Pay More for Inmate Calls Actionable on Bridge v. Phoenix Bond Analysis — Fact That Governments Had Separate Injuries As Part of the Scheme (from Reduced Commissions) Irrelevant — Plaintiffs’ Injuries Not Derivative of Governments’ — The Fraud on the Governments Was Not Too Distinct From Plaintiffs’ Injuries But Rather Necessary to Injure Plaintiffs — No Risk of Duplicative Recoveries and No Plaintiff Better Situated to Sue for Plaintiffs’ Injuries

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

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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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