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

Daubert Safeguards “Not as Essential” in Bench Trial — Expert Testimony Based on Industry Experience That Does Not Rest on Scientific Principles Does Not Require Scientific Substantiation

Lightfoot v. MXEnergy Elec., Inc., 690 F.3d 352 (5th Cir. 2012): Under Federal Rules of Evidence 702 and 703, the trial judge serves as a gatekeeper to ensure the reliability and relevance of expert testimony. The Supreme Court has provided factors to inform the reliability determination, but the inquiry is a "flexible" one, and trial c ...
Lightfoot v. MXEnergy Elec., Inc., 690 F.3d 352 (5th Cir. 2012): Under Federal Rules of Evidence 702 and 703, the trial judge serves as a gatekeeper to ensure the reliability and relevance of expert testimony. The Supreme Court has provided…
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Authentication of Website Evidence by Testimony of Downloading Witness That Printout Accurately Reflects Page at Time Printout Was Made

Smoot v. State, 316 Ga. App. 102, 729 S.E.2d 416 (Ga. Ct. App. 2012): "Printouts of [w]eb pages must first be authenticated as accurately reflecting the content of the page and the image of the page on the computer at which the printout was made" before they can be introduced into evidence. Kenneth S. Broun, 2 McCormick on Evid ...
Smoot v. State, 316 Ga. App. 102, 729 S.E.2d 416 (Ga. Ct. App. 2012): “Printouts of [w]eb pages must first be authenticated as accurately reflecting the content of the page and the image of the page on the computer at…
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Contours of Commercial Activity Exception of the Foreign Sovereign Immunities Act

Terenkian v. Republic of Iraq, 2012 U.S. App. LEXIS 19557 (9th Cir. Sept. 18, 2012): Pentonville Developers, Ltd., and Marblearch Trading, Ltd., two Cyprus oil brokerage companies, sued the Republic of Iraq for unilaterally terminating two contracts for the purchase and sale of Iraqi oil. The district court held it had subject matter ju ...
Terenkian v. Republic of Iraq, 2012 U.S. App. LEXIS 19557 (9th Cir. Sept. 18, 2012): Pentonville Developers, Ltd., and Marblearch Trading, Ltd., two Cyprus oil brokerage companies, sued the Republic of Iraq for unilaterally terminating two contracts for the purchase…
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Spoliation — Adverse Inference at Bench Trial Does Not Preclude Verdict for Spoliator — Inference Is Permissive, Not Mandatory

Kwon v. Costco Wholesale Corp., 469 F. App’x 579 (9th Cir. 2012): Kwon, an 83-year-old woman, was injured when she tripped on an 18-foot-long chain of flatbed carts while shopping at a Costco warehouse. After the incident, Costco failed to preserve a surveillance videotape that may have recorded the incident. The district court fo ...
Kwon v. Costco Wholesale Corp., 469 F. App’x 579 (9th Cir. 2012): Kwon, an 83-year-old woman, was injured when she tripped on an 18-foot-long chain of flatbed carts while shopping at a Costco warehouse. After the incident, Costco failed to…
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Eighth Circuit Reserves on Question Whether Spoliation Sanctions Are Ever Appropriate in a Criminal Case

United States v. Davis, 2012 U.S. App. LEXIS 17735 (8th Cir. Aug. 22, 2012): Davis contends the district court's refusal to give a spoliation instruction based upon the DEA's destruction of the videotape violated his constitutional due process rights. Davis's arguments on this point are admittedly reiterative of his suppression argument ...
United States v. Davis, 2012 U.S. App. LEXIS 17735 (8th Cir. Aug. 22, 2012): Davis contends the district court’s refusal to give a spoliation instruction based upon the DEA’s destruction of the videotape violated his constitutional due process rights. Davis’s…
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Official Government Website Evidence Is Admissible in New York State

Vandenberg Inc. v. Townhouse 84, LLC, 2012 N.Y. Misc. LEXIS 4420, 2012 NY Slip Op 32351U (Sup. Ct. N.Y. Cnty. Sept. 7, 2012): Of this evidence that Townhouse 84, LLC, is an LLC separate from 45 West 84th Street, LLC, at least the latter documents, from an official government web site, are admissible. LaSonde v. Seabrook, 89 A ...
Vandenberg Inc. v. Townhouse 84, LLC, 2012 N.Y. Misc. LEXIS 4420, 2012 NY Slip Op 32351U (Sup. Ct. N.Y. Cnty. Sept. 7, 2012): Of this evidence that Townhouse 84, LLC, is an LLC separate from 45 West 84th Street, LLC,…
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Sanctions — Circuit Splits: (1) No Vicarious Liability under § 1927 — (2) No Bad Faith Required for § 1927 Sanctions

Gibson v. Solideal USA, Inc., 2012 U.S. App. LEXIS 14415 (6th Cir. July 10, 2012): 28 U.S.C. § 1927 and the Court's Inherent Power *** Footnote 3. Notably, in this case, sanctions under § 1927 could be imposed only on Catlett [plaintiff’s counsel] and would not apply to Gibson [plaintiff] ...
Gibson v. Solideal USA, Inc., 2012 U.S. App. LEXIS 14415 (6th Cir. July 10, 2012): 28 U.S.C. § 1927 and the Court’s Inherent Power *** Footnote 3. Notably, in this case, sanctions under § 1927 could be imposed only on…
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Expert Reports — Distinguishing 26(a)(2)(B) Retained Experts from 26(a)(2)(C) Hybrid Witnesses — What “Facts” and “Opinions” Must Be Disclosed under 26(a)(2)(C)

Meredith v. Int’l Marine Underwriters, 2012 U.S. Dist. LEXIS 100972 (D. Md. July 20, 2012): Federal Rule of Civil Procedure 26(a)(2)(A) requires litigants to disclose "the identity of any witness [they] may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705." Fed.R.Civ.P. 26. Rule 26(a)(2)(B) further re ...
Meredith v. Int’l Marine Underwriters, 2012 U.S. Dist. LEXIS 100972 (D. Md. July 20, 2012): Federal Rule of Civil Procedure 26(a)(2)(A) requires litigants to disclose “the identity of any witness [they] may use at trial to present evidence under Federal…
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Limited Scope of Fraud and Mistake as Grounds to Overturn Arbitration Award

Taylor v. Univ. of Phoenix/Apollo Group, 2012 U.S. App. LEXIS 18865 (5th Cir. Sept. 7, 2012): Taylor contends that the award should be vacated because it was procured by fraud. "The statute does not provide for vacatur in the event of any fraudulent conduct, but only 'where the award was procured by corruption, fraud, or un ...
Taylor v. Univ. of Phoenix/Apollo Group, 2012 U.S. App. LEXIS 18865 (5th Cir. Sept. 7, 2012): Taylor contends that the award should be vacated because it was procured by fraud. “The statute does not provide for vacatur in the event…
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Designating as a Witness a Hybrid Non-Reporting Expert Who Has Percipient Knowledge of Facts Waives All Privilege and Work Product Protection for Communications between That Witness and Counsel

PacifiCorp v. Nw. Pipeline GP, 2012 U.S. Dist. LEXIS 98313 (D. Or. July 16, 2012): PacifiCorp seeks discovery of at least 76 communications authored by, received by, or copied to GTN non-retained experts on topics about which they intend to testify, many of which involved GTN's in-house and outside counsel. GTN objects that these ...
PacifiCorp v. Nw. Pipeline GP, 2012 U.S. Dist. LEXIS 98313 (D. Or. July 16, 2012): PacifiCorp seeks discovery of at least 76 communications authored by, received by, or copied to GTN non-retained experts on topics about which they intend to…
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Recent Posts

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

RICO Causation: (1) State’s Misrepresentation to Federal Government That It Was Providing Plaintiffs with Mandated Special Education Did Not Cause Plaintiffs’ Injury Because The Failure to Provide The Education Was Not Caused by the Fraud on the Federal Government — (2) The Three Factors for Assessing RICO Causation — (3) Limits of the Second Circuit’s Decision in Alix v. McKinsey That Causation Can Be Established Where A Fraud On The Judiciary “Or Other Governmental Entity” Resulted In A Resource Going To Someone Less Deserving

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

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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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