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

Multiple30(b)(6) Witnesses = 1 Deponent — I.e., the Entity — Each Witness May Review and Sign Transcript Even If Request Made Only at First Witness’s Testimony — Substantive Errata Changes Permitted in Second Circuit, but Cross Is Broad

In re Weatherford Int’l Secs. Litig., 2013 U.S. Dist. LEXIS 120321 (S.D.N.Y. Aug. 23, 2013): The motion currently before the Court in this case presents an issue of first impression but little practical significance: when multiple witnesses are designated as corporate representatives pursuant to Rule 30(b)(6) of the Federal Rules of C ...
In re Weatherford Int’l Secs. Litig., 2013 U.S. Dist. LEXIS 120321 (S.D.N.Y. Aug. 23, 2013): The motion currently before the Court in this case presents an issue of first impression but little practical significance: when multiple witnesses are designated as…
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Does State or Federal Law Govern Interpretation of a Forum Selection Clause If the Underlying Contract Contains a Choice of Law Provision? If State, What State? Circuit Split

Indoor Billboard Northwest Inc. v. M2 Sys. Corp., 922 F. Supp. 2d 1154 (D. Or. 2013): The parties do not address or analyze whether the Court should apply federal common law, Connecticut law, or Oregon law to determine the scope and effect of the forum-selection clause. As noted, the Promissory Note provides it "shall be construed and e ...
Indoor Billboard Northwest Inc. v. M2 Sys. Corp., 922 F. Supp. 2d 1154 (D. Or. 2013): The parties do not address or analyze whether the Court should apply federal common law, Connecticut law, or Oregon law to determine the scope…
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Court May Convert Unpaid Portion of Disgorgement Remedy, Imposed as Compensatory Civil Contempt Sanction, into Money Judgment after Contemnor Has Disgorged What It Can — Breadth of, and Limitations on, Contempt—Good Quotes—No Election of Remedies

Federal Trade Comm’n v. Leshin, 719 F.3d 1227 (11th Cir. 2013): This appeal presents an issue of first impression: whether a district court can convert the unpaid remainder of an equitable disgorgement remedy, stemming from a compensatory civil contempt sanction, into the legal remedy of a money judgment after the contemnor has disgor ...
Federal Trade Comm’n v. Leshin, 719 F.3d 1227 (11th Cir. 2013): This appeal presents an issue of first impression: whether a district court can convert the unpaid remainder of an equitable disgorgement remedy, stemming from a compensatory civil contempt sanction,…
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What Exactly Is an “Outlaw”? — The Demise of Outlawry and Rise of the Fugitive Disentitlement Doctrine — The Latter’s Inaptness in Most Civil Cases

Niemi v. Lasshofer, 2013 U.S. App. LEXIS 18589 (10th Cir. Sept. 6, 2013): An unconventional real estate financing scheme presents us with some unconventional legal questions. Questions ranging from whether an Austrian financier should be denied access to the American legal system because he failed to comply with an order freezing his as ...
Niemi v. Lasshofer, 2013 U.S. App. LEXIS 18589 (10th Cir. Sept. 6, 2013): An unconventional real estate financing scheme presents us with some unconventional legal questions. Questions ranging from whether an Austrian financier should be denied access to the American…
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Sanctions: Failure to Comply with Scheduling Order, Absent Motion to Compel or Interim Order from Court, Does Not Justify Dismissal — Scheduling Order Is Not the Type of Order Contemplated by Rule 37

Holmes v. Trinity Health, 2013 U.S. App. LEXIS 18328 (8th Cir. Sept. 4, 2013): Holmes appeals the district court's denial of her "Motion for Summary Judgment or Default Judgment," which asked the court to grant a dispositive discovery sanction against Trinity for its "willful pattern of action in failing to comply" with the scheduli ...
Holmes v. Trinity Health, 2013 U.S. App. LEXIS 18328 (8th Cir. Sept. 4, 2013): Holmes appeals the district court’s denial of her “Motion for Summary Judgment or Default Judgment,” which asked the court to grant a dispositive discovery sanction against…
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Sarbanes-Oxley Whistleblower May Recover Damages for Emotional Distress, Humiliation and Injury to Reputation — Caselaw Split

Rutherford v. Jones Lang LaSalle Am, Inc., 2013 U.S. Dist. LEXIS 116872 (E.D. Mich. Jan. 29, 2013) (Report and Recommendation): This case involves a claim of retaliation against a corporate whistleblower in violation of the Sarbanes-Oxley Act ("SOX"). The issue raised in the pending motion is one of first impression in this District: do ...
Rutherford v. Jones Lang LaSalle Am, Inc., 2013 U.S. Dist. LEXIS 116872 (E.D. Mich. Jan. 29, 2013) (Report and Recommendation): This case involves a claim of retaliation against a corporate whistleblower in violation of the Sarbanes-Oxley Act (“SOX”). The issue…
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Is the Attorney-Client Privilege a Constitutional Right in Criminal Cases?

Howell v. Trammell, 2013 U.S. App. LEXIS 18477 (10th Cir. Sept. 5, 2013): The relevant out-of-court statements admitted against Howell are Watson's private conversations with her former attorneys and Watson's testimony at the preliminary hearing. While testifying at Howell's trial--under oath and subject to Howell's cross-examination-- ...
Howell v. Trammell, 2013 U.S. App. LEXIS 18477 (10th Cir. Sept. 5, 2013): The relevant out-of-court statements admitted against Howell are Watson’s private conversations with her former attorneys and Watson’s testimony at the preliminary hearing. While testifying at Howell’s trial–under…
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Arbitration — Nonsignatories — Equitable Estoppel, Agency and Third-Party Beneficiary Theories Permitting Nonsignatory to Enforce Arbitration Agreement — Requirements of Each

Murphy v. DircecTV, Inc., 2013 U.S. App. LEXIS 15580 (July 30, 2013): In AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011), the Supreme Court held that Section 2 of the Federal Arbitration Act ("FAA") preempts the State of California's rule rendering unenforceable--as unconscionable--arbitration provisions in consumer contracts that w ...
Murphy v. DircecTV, Inc., 2013 U.S. App. LEXIS 15580 (July 30, 2013): In AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011), the Supreme Court held that Section 2 of the Federal Arbitration Act (“FAA”) preempts the State of California’s…
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Marital Communications and Attorney-Client Privileges — Waiver by Failing to Object to Pretrial Testimony — Waiver Need Not Be Knowing, Voluntary and Intentional, Just “Voluntary”

United States v. Brock, 2013 U.S. App. LEXIS 15574 (7th Cir. July 30, 2013): A. The Marital Communications Privilege The marital communications privilege covers "information privately disclosed between husband and wife in the confidence of the marital relationship . . . ." Trammel v. United States, 445 U.S. 40, 51 (198 ...
United States v. Brock, 2013 U.S. App. LEXIS 15574 (7th Cir. July 30, 2013): A. The Marital Communications Privilege The marital communications privilege covers “information privately disclosed between husband and wife in the confidence of the marital relationship . .…
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Inherent Power Sanctions for Extrajudicial (Pre-Suit) Misconduct — Expert Testimony Unneeded to Establish “Reckless Disregard” (Qui Tam Case) — Reasonably Foreseeable Intervening Forces Do Not Break Proximate Cause Chain

United States v. King-Vassel, 2013 U.S. App. LEXIS 17989 (7th Cir. Aug. 28, 2013): After acquiring the medical records for N.B., a minor, Dr. Toby T. Watson initiated this qui tam False Claims Act suit against N.B's former treating psychiatrist, Dr. Jennifer King-Vassel. While in King-Vassel's care, N.B. received Medicaid assistance tha ...
United States v. King-Vassel, 2013 U.S. App. LEXIS 17989 (7th Cir. Aug. 28, 2013): After acquiring the medical records for N.B., a minor, Dr. Toby T. Watson initiated this qui tam False Claims Act suit against N.B’s former treating psychiatrist,…
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Recent Posts

RICO: Indirect Injury Unrecoverable — Indirect Purchaser Rule Imported from Antitrust

Rule 11 Sanctions: (1) Improper Purpose of Harassment Reasonably Determined Based on Past Tactics (25 Lawsuits, 14 Ethics Complaints, and 150 FOIA Requests) As Well As Present Behavior — (2) Hearings Are Not Only Not Required to Satisfy Due Process But, If The Record Is Otherwise Adequate, Are Affirmatively Discouraged

RICO and Probate Exception to Federal Jurisdiction: Federal Jurisdiction over RICO Claim Not Barred by Probate Exception Even If the Federal Judgment May Be Binding on the Probate Proceedings (Or Vice Versa) — Calculating Damages Based on Diminution of Value of Estate ≠ Administration of the Estate — Doesn’t Matter If RICO Misconduct Includes Defendants’ Actions with Respect to The Estate

RICO: No Causation Where Harm Flowed Several Steps After the Fraudulent Acts — RICO Causation Same As Antitrust Causation

Sanctions vs. Automatic Stay: Imposition of Sanctions (Here, Inherent Power Sanctions) Is Subject to the Police Power Exception to the Automatic Stay in Bankruptcy

The Word “Include” May Be A Word of Limitation As Opposed to a Word of Enlargement, Depending on the Context

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

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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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