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

Supreme Court: CAFA — “Mass Action” Refers to Claims Brought by 100 or More Plaintiffs, Not 100 or More Real Parties in Interest — Good Quotes on Statutory Interpretation

  JUSTICE SOTOMAYOR delivered the opinion of the Court. Mississippi ex rel. Hood v. AU Optronics Corp., 2014 U.S. LEXIS 645 (U.S. Jan. 14, 2014):   Under the Class Action Fairness Act of 2005 (CAFA or  Act), defendants in civil suits may remove "mass actions" from state to federal court. CAFA defines ...
JUSTICE SOTOMAYOR delivered the opinion of the Court. Mississippi ex rel. Hood v. AU Optronics Corp., 2014 U.S. LEXIS 645 (U.S. Jan. 14, 2014):   Under the Class Action Fairness Act of 2005 (CAFA or  Act), defendants in civil suits may…
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Web Chats on Party’s Computer Authenticated by His Admission He Used Name Used in Chats — Also Admissible As Circumstantial Evidence Linking Him to Material — Unknown Speakers’ Messages Admissible as Context for Responses

United States v. Manning, 2014 U.S. App. LEXIS 76 (8th Cir. Jan. 3, 2014): i. Chat Transcripts Manning argues that the district court abused its discretion in admitting chat transcripts related to the usernames "boost_virgin" and "mem659" discovered on Manning's computer. These chat ...
United States v. Manning, 2014 U.S. App. LEXIS 76 (8th Cir. Jan. 3, 2014): i. Chat Transcripts Manning argues that the district court abused its discretion in admitting chat transcripts related to the usernames "boost_virgin" and "mem659" discovered on Manning's…
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Supreme Court on Personal Jurisdiction — General Jurisdiction over Foreign Corporation Exists Only If Its Affiliations with the State Are So Continuous and Systematic As to Render It “Essentially at Home in the Forum State

Daimler AG v. Bauman, 2014 U.S. LEXIS 644 (U.S. Jan. 14, 2014): This case concerns the authority of a court in the United States to entertain a claim brought by foreign plaintiffs against a foreign defendant based on events occurring entirely outside the United States. The litigation commenced in  2004, when twen ...
Daimler AG v. Bauman, 2014 U.S. LEXIS 644 (U.S. Jan. 14, 2014): This case concerns the authority of a court in the United States to entertain a claim brought by foreign plaintiffs against a foreign defendant based on events occurring…
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Personal Jurisdiction & Default Judgments — Who Bears the Burden of Proving Personal Jurisdiction on a Motion to Vacate a Default Judgment? Circuit Split

Arpaio v. Dupre, 527 F. App'x 108 (3d Cir. 2013): Footnote 4.  We note the circuit split regarding which party bears the burden of proof in establishing personal jurisdiction in a motion to vacate a default judgment. Bally Exp. Corp. v. Balicar, Ltd., 804 F.2d 398, 401 (7th Cir. 1986) ("There is not agree ...
Arpaio v. Dupre, 527 F. App'x 108 (3d Cir. 2013): Footnote 4.  We note the circuit split regarding which party bears the burden of proof in establishing personal jurisdiction in a motion to vacate a default judgment. Bally Exp. Corp.…
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RICO — Elements of Associated-in-Fact Enterprise — Failure to Identify Common Purpose or Course of Conduct Vitiates RICO Claim for Failure to State “Ongoing Criminal Enterprise”

Crowe v. Clark, 2014 U.S. App. LEXIS 504 (10th Cir. Jan. 10, 2014): Vicki Dillard Crowe, proceeding pro se, appeals the dismissal of her civil rights complaint alleging constitutional and statutory violations stemming from the foreclosure of her Denver, Colorado home and her subsequent eviction from it. The district ...
Crowe v. Clark, 2014 U.S. App. LEXIS 504 (10th Cir. Jan. 10, 2014): Vicki Dillard Crowe, proceeding pro se, appeals the dismissal of her civil rights complaint alleging constitutional and statutory violations stemming from the foreclosure of her Denver, Colorado …
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Scope and Limits of Judicial Immunity — District Court Retains Jurisdiction to Impose Sanctions after Notice of Appeal Filed — Vexatious Litigant Injunction

Rodriguez v. Doe, 2013 U.S. App. LEXIS 24613 (4th Cir. Dec. 11, 2013): "[J]udicial immunity is an immunity from suit,   not just from ultimate assessment of damages." Mireles v. Waco, 502 U.S. 9, 11, 112 S.Ct. 286, 288 (1991). Judicial immunity can be overcome only where: (1) the judge engaged in ...
Rodriguez v. Doe, 2013 U.S. App. LEXIS 24613 (4th Cir. Dec. 11, 2013): "[J]udicial immunity is an immunity from suit,   not just from ultimate assessment of damages." Mireles v. Waco, 502 U.S. 9, 11, 112 S.Ct. 286, 288 (1991). Judicial …
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Email May Constitute “Signed Writing” within Statute of Frauds

Warshaw Burstein Cohen Schlesinger & Kuh, LLP v. Birnbaum, 2011 N.Y. Misc. LEXIS 6836 (Sup. Ct. N.Y. Cnty. May 5, 2011): In this action to recover for attorneys' fees allegedly due and owing, defendants Arthur ("Mr. Birnbaum") and Beth Birnbaum ("Mrs. Birnbaum") (collectively, "defendant ...
Warshaw Burstein Cohen Schlesinger & Kuh, LLP v. Birnbaum, 2011 N.Y. Misc. LEXIS 6836 (Sup. Ct. N.Y. Cnty. May 5, 2011): In this action to recover for attorneys' fees allegedly due and owing, defendants Arthur ("Mr. Birnbaum") and Beth Birnbaum…
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Good Samaritan Doctrine — Rescuers Are Liable Only If They Fail to Exercise Reasonable Care in a Way That Worsens the Position of the Victim, Either by Increasing the Risk or Inducing Reliance, by the Victim or Other Rescuers

Turner v. United States, 2013 U.S. App. LEXIS 23349 (4th Cir. Nov. 20, 2013): The USCG's [U.S. Coast Guard’s] enabling statute, 14 U.S.C. § 88, authorizes the USCG to undertake rescue efforts, but does not impose any affirmative duty to commence such rescue operations. See Hurd v. United States, 34 F. App'x 77, 81 (4th Cir ...
Turner v. United States, 2013 U.S. App. LEXIS 23349 (4th Cir. Nov. 20, 2013): The USCG's [U.S. Coast Guard’s] enabling statute, 14 U.S.C. § 88, authorizes the USCG to undertake rescue efforts, but does not impose any affirmative duty to…
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RICO v. Art. III Standing—Paper Filed with No Inquiry May Not Be Sanctionable If Facts Prove True and Filer Prevails — Lengthy Investigation Satisfies Rule 11 Even If It Turns Up Little — Staying Rule 11 Motion Pending State Remand

Fiala v. B&B Enters., 2013 U.S. App. LEXIS 25705 (7th Cir. Dec. 26, 2013): This appeal arises out of a RICO class action suit that the district judge dismissed without deciding whether to certify it as a class action. The appeal is from the judge's denial of the defendants' application for an award of their attorneys' fee ...
Fiala v. B&B Enters., 2013 U.S. App. LEXIS 25705 (7th Cir. Dec. 26, 2013): This appeal arises out of a RICO class action suit that the district judge dismissed without deciding whether to certify it as a class action. The…
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Impact of Including in a Rule 56.1 Statement of Uncontested Facts a Reservation of Rights to Contest Issues at Trial Not Disputed on Summary Judgment

Berbick v. Precinct 42, 2013 U.S. Dist. LEXIS 143955 (S.D.N.Y. Sept. 27, 2013): 2. The Rule 56.1 Statement Footnote A Rule 56.1 statement is "a short and concise statement . . . of the material facts as to which the moving party contends there is no genuine issue to be tried." Local R. Civ. P. 56.1( ...
Berbick v. Precinct 42, 2013 U.S. Dist. LEXIS 143955 (S.D.N.Y. Sept. 27, 2013): 2. The Rule 56.1 Statement Footnote A Rule 56.1 statement is "a short and concise statement . . . of the material facts as to which the…
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Recent Posts

(1) RICO Pattern: Open-Ended Continuity — The Vendetta Exception — Jury Could Reasonably Infer That Scheme Directed at One Person, With Goal of Destroying His Current and Future Business Prospects, Presented A Threat of Continued Racketeering Activity Extending Indefinitely into the Future — Lawsuit’s “Fortuitous Interruption” of Scheme ≠ Lack of Threat of Continuing Racketeering Activity — Acts of Concealment Used to Perpetuate Violations — Multiple Schemes Not Required — Jury Could Judge Defendant’s Credibility in Assessing Threat of Continuing Criminal Activity — (2) RICO Conspiracy — Two Methods of Proof: Agreement to Overall Objective Or to Commit Predicate Acts — Agreement Can Be Inferred from Conduct — Conspirator Needn’t Know All Details, Have Contact with Other Conspirators Or Participate in Every Stage

Experts: “Normally, Courts Are Loath to Outright Dismiss An Expert” (Good Quote) — Experts Are Unhelpful If They Misstate the Law [Note Premise That Testimony on Law Not Precluded Outright] — Rule 37 Sanctions Unwarranted for Unjustifiable Failure to Produce Relevant Document Already in Requester’s Possession

FRAP 38 Sanctions: (1) Pressing Objectively Frivolous Arguments, Multiple Misstatements at Oral Argument and Failure to Address What District Judge Said Warrant Award against Appellants’ Counsel (Only) — (2) “General Award” of $5,000 Warranted Where Appellee Failed to Sufficiently Document Its Fees and Expenses [Goodyear v. Haegar Issue]]

RICO: Capital Call Investment Process Increasing Equity of Those Responding to Call at Expense of Those Not Responding ≠ Collection of An Unlawful Debt

RICO [And Constitutional] Standing: Concrete Injury Requirement Not Satisfied by Alleged Intangible Injuries of Intrusion Upon Seclusion, Confusion And Emotional Distress, Public Disclosure of Private Facts, Deterred Speech On Nondefamatory Matters, Violation Of First Amendment Rights, And Compulsion

Rule 37(b) Sanctions: Striking of Answer, Default Judgment, Civil Contempt and Piercing Corporate Veil for Deliberate Disregard of Multiple Orders to Produce — Finding of Deliberate Disregard of Court Order Is Factual, Triggering Clear Error Review — Discretion Narrows When Default Sanction Involved — Fourth Circuit Factors for Rule 37 Default Sanction Are Different Than Those for Inherent Power Dismissal Sanction — Continued Defiance of Court Orders And Millions in Unpaid Judgments And Tax Liens Render Lesser Sanctions Futile

RICO: No Causation for Company Harmed by Governmental Customers Shunning It After Employee Publishes Book Admitting He Bribed Governmental Officials — Harm Too Indirect, Not from Bribery (Predicate Act) But from Customers’ Decisions to Shun and Publication of Book (Both Lawful) — Customers Injured by Bribery of Their Officials Are More Direct Plaintiffs

FRAP 38 Sanctions for Frivolous Opposition to Arbitration

Extrinsic Fraud Exception to Rooker-Feldman — Where Defendants’ Perjury, False Evidence, Flawed Legal Arguments Prevented Plaintiffs from Presenting Their Claim in State Court

Federal Jurisdiction: Party Can Waive Subject Matter Jurisdiction — While Federal Courts Must Ensure They Do Not Lack Subject Matter Jurisdiction, There Is No Duty to Find and Exercise It

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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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