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

Waiver by Providing Privileged Material to Testifying Expert — Standards: Clear and Convincing Evidence, Clearly Erroneous — Appellate Deference to Credibility Findings & Its Limits

United States v. Bolander, 2013 U.S. App. LEXIS 13659 (4th Cir. July 5, 2013): To obtain a commitment order against Bolander, the government was required to establish three elements by clear and convincing evidence. First, the government was required to establish that Bolander had "engaged or attempted to engage in . . . child molestat ...
United States v. Bolander, 2013 U.S. App. LEXIS 13659 (4th Cir. July 5, 2013): To obtain a commitment order against Bolander, the government was required to establish three elements by clear and convincing evidence. First, the government was required to…
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Judicial Estoppel — Principles — Good Quotes

Grochocinski v. Mayer Brown Rowe & Maw, LLP, 2013 U.S. App. LEXIS 12728 (7th Cir. June 21, 2013): Judicial estoppel is a flexible equitable doctrine designed to prevent "the perversion of the judicial process." In re Cassidy, 892 F.2d 637, 641 (7th Cir. 1990). The doctrine protects the courts from being "'manipulated by ch ...
Grochocinski v. Mayer Brown Rowe & Maw, LLP, 2013 U.S. App. LEXIS 12728 (7th Cir. June 21, 2013): Judicial estoppel is a flexible equitable doctrine designed to prevent “the perversion of the judicial process.” In re Cassidy, 892 F.2d 637,…
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Expert Precluded from Testifying Due to Deficiencies Evident in Report — Not Curable by “Supplementation”

Campbell v United States, 470 Fed. Appx. 153 (4th Cir. 2012): Annette Campbell filed a wrongful death action against the United States of America pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671-2680 (2006), alleging that medical staff at the Veterans Affairs Medical Center ("VA Medical Center") acted negligen ...
Campbell v United States, 470 Fed. Appx. 153 (4th Cir. 2012): Annette Campbell filed a wrongful death action against the United States of America pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-2680 (2006), alleging that…
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Default Judgments Are Discretionary and Not Favored — Factors for the Court’s Consideration

Americredit Fin. Servs. v. Glennon (In re Jeffers), 2012 Bankr. LEXIS 6170 (E.D. Cal. Oct. 10, 2012): Federal Rule of Civil Procedure 55 and Federal Rule of Bankruptcy Procedure 7055 govern default judgments. In re McGee, 359 B.R. 764, 770 (B.A.P. 9th Cir. 2006). Obtaining a default judgment of nondishcargeability of a claim is a two-ste ...
Americredit Fin. Servs. v. Glennon (In re Jeffers), 2012 Bankr. LEXIS 6170 (E.D. Cal. Oct. 10, 2012): Federal Rule of Civil Procedure 55 and Federal Rule of Bankruptcy Procedure 7055 govern default judgments. In re McGee, 359 B.R. 764, 770…
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RICO Forfeiture — Where Lawyer/Racketeer Deposits Illicit Proceeds of Ponzi Scheme in Firm’s Bank Account, Commingling It with Legitimate Revenues, Entire Account at Time He Is Charged Is Not Forfeitable

In re Rothstein, , 2013 U.S. App. LEXIS 11793 (11th Cir. June 12, 2013): A number of criminal statutes within the Federal Code mandate that a defendant, when convicted, forfeit to the United States as part of his sentence the lucre he acquired as a result of his criminal activity. In this case, the defendant, a lawyer, deposited the lucr ...
In re Rothstein, , 2013 U.S. App. LEXIS 11793 (11th Cir. June 12, 2013): A number of criminal statutes within the Federal Code mandate that a defendant, when convicted, forfeit to the United States as part of his sentence the…
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Lost Profits Evidence Precluded for Failure to Disclose Calculation Under 26(A)(1)(C) — Automatic Nature of Sanctions under Rule 37(c)(1) —Factors — Good Quotes — “Abuse of Discretion” Defined — Design Strategy

Design Strategy, Inc. v. Davis, 469 F.3d 284 (2d Cir. 2006): Plaintiff-counter-defendant-appellant Design Strategies, Inc. ("Design") appeals from a judgment entered in the United States District Court for the Southern District of New York (Marrero, J.). The action arises out of the alleged diversion of a corporate opportun ...
Design Strategy, Inc. v. Davis, 469 F.3d 284 (2d Cir. 2006): Plaintiff-counter-defendant-appellant Design Strategies, Inc. ("Design") appeals from a judgment entered in the United States District Court for the Southern District of New York (Marrero, J.). The action arises out…
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Sanctions — Entry of a Default Judgment under Rule 37 for Discovery Violations — Factors — $36 Million Jury Verdict on Damages Upheld

Stooksbury v. Ross, 2013 U.S. App. LEXIS 12132 (6th Cir. June 13, 2013): Defendants Michael L. Ross, the estate of his late brother, and their associates and business entities, (collectively "Ross Defendants"), appeal from the district court's denial of their motions for a directed verdict and new trial after a jury awarded Plaintiff R ...
Stooksbury v. Ross, 2013 U.S. App. LEXIS 12132 (6th Cir. June 13, 2013): Defendants Michael L. Ross, the estate of his late brother, and their associates and business entities, (collectively “Ross Defendants”), appeal from the district court’s denial of their…
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RICO Claim against IRS Employees Barred by 26 U.S.C. § 7433, Which Provides Exclusive Damages Remedy for Misconduct in Connection with Tax Collecting Activities

Kenner v. Kelly, 2013 U.S. App. LEXIS 12629 (9th Cir. June 18, 2013): Brian and Kathleen Kenner appeal pro se from the district court's judgment dismissing their action alleging that defendants violated the Racketeer Influenced and Corrupt Organizations Act ("RICO") in connection with the collection of their federal income tax liabiliti ...
Kenner v. Kelly, 2013 U.S. App. LEXIS 12629 (9th Cir. June 18, 2013): Brian and Kathleen Kenner appeal pro se from the district court’s judgment dismissing their action alleging that defendants violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”)…
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Arbitration — Supreme Court Rejects “Effective Vindication” Exception That Would Allow Parties to Litigate If Cost of Individually Arbitrating Federal Statutory Claim Exceeds Potential Recovery

American Express Co. v. Italian Colors Restaurant, 2013 U.S. LEXIS 4700 (U.S. June 20, 2013): We consider whether a contractual waiver of class arbitration is enforceable under the Federal Arbitration Act when the plaintiff's cost of individually arbitrating a federal statutory claim exceeds the potential recovery.*** I ...
American Express Co. v. Italian Colors Restaurant, 2013 U.S. LEXIS 4700 (U.S. June 20, 2013): We consider whether a contractual waiver of class arbitration is enforceable under the Federal Arbitration Act when the plaintiff’s cost of individually arbitrating a federal…
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In Pari Delicto under New York Law — Adverse Interest Exception and Sole Actor Doctrine — Supreme Court Reversal Drains Alternate Holdings of Precedential Effect Where Effect Is Lack of Subject Matter Jurisdiction

In re Bernard l. Madoff Inv. Secs. LLC, 2013 U.S. App. LEXIS 12551 (2d Cir. June 20, 2013): Irving Picard ("Picard" or the "Trustee") sues in his capacity as Trustee under the Securities Investor Protection Act ("SIPA") on behalf of victims in the multi-billion-dollar Ponzi scheme worked by Bernard Madoff. The four actions presently bef ...
In re Bernard l. Madoff Inv. Secs. LLC, 2013 U.S. App. LEXIS 12551 (2d Cir. June 20, 2013): Irving Picard (“Picard” or the “Trustee”) sues in his capacity as Trustee under the Securities Investor Protection Act (“SIPA”) on behalf of…
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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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