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

Authentication of Internet Archive Evidence Requires Affidavit from Knowledgeable Employee of Archive

From Specht v. Google, Inc., 758 F. Supp. 2d 570 (N.D. Ill. Dec. 17, 2010): Google has also moved to exclude screen shots of several websites that Plaintiffs retrieved from the Internet Archive's Wayback Machine. *** According to Google, Plaintiffs produced these screen shots at the close of discovery***. It alleges that the lat ...
From Specht v. Google, Inc., 758 F. Supp. 2d 570 (N.D. Ill. Dec. 17, 2010): Google has also moved to exclude screen shots of several websites that Plaintiffs retrieved from the Internet Archive’s Wayback Machine. *** According to Google, Plaintiffs…
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Court Has Discretion to Decline Relief under Declaratory Act But Not to Decline Relief under Federal Arbitration Act (Here, by Remanding First pursuant to DJ Act)

From Countrywide Home Loans, Inc. v. Mortgage Guaranty Ins. Corp., 2011 U.S. App. LEXIS 12066 (9th Cir. June 15, 2011): Appellant Mortgage Guaranty Insurance Company ("MGIC") appeals the district court's decision to remand this suit back to state court pursuant to its discretion under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-220 ...
From Countrywide Home Loans, Inc. v. Mortgage Guaranty Ins. Corp., 2011 U.S. App. LEXIS 12066 (9th Cir. June 15, 2011): Appellant Mortgage Guaranty Insurance Company (“MGIC”) appeals the district court’s decision to remand this suit back to state court pursuant…
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Sanctions Not Appropriate for Presenting Issues of First Impression — Litigants Should Not Be Deterred from Advancing Any Supportable Position (Good Quotes)

From Mid-Continent Cas. Co. v. Eland Energy, Inc., 2011 U.S. Dist. LEXIS 63493 (N.D. Tex. June 14, 2011): Mid-Continent has failed to demonstrate that Sundown has practiced a fraud upon this court or defiled the very temple of justice, or that it has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. Mid-Continent's ...
From Mid-Continent Cas. Co. v. Eland Energy, Inc., 2011 U.S. Dist. LEXIS 63493 (N.D. Tex. June 14, 2011): Mid-Continent has failed to demonstrate that Sundown has practiced a fraud upon this court or defiled the very temple of justice, or…
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Sanctions — Bad Faith of Client Cannot be Imputed to Lawyer Who Is Merely Negligent — Notable Quotes

From Harris v. U.S. Trustee (In re Aston-Nevada LP), 409 F. App'x 107 (9th Cir. 20100: In this case, some of Appellants' actions, viewed objectively, were negligent. As the bankruptcy court found, Chapman should have reviewed the bankruptcy petition and inquired into the estate's assets before agreeing to represent Aston-Nevada in bankr ...
From Harris v. U.S. Trustee (In re Aston-Nevada LP), 409 F. App’x 107 (9th Cir. 20100: In this case, some of Appellants’ actions, viewed objectively, were negligent. As the bankruptcy court found, Chapman should have reviewed the bankruptcy petition and…
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Court Papers Filed Manually — Including on Disk — Must Bear Actual Signature and Do Not Satisfy Rule 11(a) If They Bear Only the “/s/” Typed Signature Permitted on Electronically-Filed Documents

From Comtide Holdings, LLC v. Booth Creek Mgmt. Corp., 2011 U.S. Dist. LEXIS 61856 (S.D. Ohio June 8, 2011): This order is being issued to address a problem with the way in which Doc. #81 has been signed.***Rule 11 does not directly define what is meant by "signing" a pleading, motion, or paper. Fed.R.Civ.P. 5(d)(3) provides that a cour ...
From Comtide Holdings, LLC v. Booth Creek Mgmt. Corp., 2011 U.S. Dist. LEXIS 61856 (S.D. Ohio June 8, 2011): This order is being issued to address a problem with the way in which Doc. #81 has been signed.***Rule 11 does…
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Information-and-Belief Allegations of Meetings that Experts Say Must Have Occurred between Banks and Madoff Are Speculative, Insufficient to Show Actual Knowledge of Fraud — Banks Generally Owe No Duty to Protect Non-Customers from Fraud by Customers

From MLSMK Inv. Co. v. JP Morgan Chase & Co., 2011 U.S. App. LEXIS 11425 (2d Cir. June 6, 2011): To state a claim for aiding and abetting breach of fiduciary duty under New York law, a plaintiff must show "breach by a fiduciary of a duty owed to plaintiff; defendant's knowing participation in the breach; and damages." SCS Commc'ns, Inc. ...
From MLSMK Inv. Co. v. JP Morgan Chase & Co., 2011 U.S. App. LEXIS 11425 (2d Cir. June 6, 2011): To state a claim for aiding and abetting breach of fiduciary duty under New York law, a plaintiff must show…
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In Action Substantively Governed by State Law, Waiver of Privilege Is Determined by State Law, But Waiver of Work Product Protection Is Governed by Federal Law — Counsel Not Permitted to Make Independent Claim of Work Product Where Client Has Waived

From SEC v. McNaul, 2011 U.S. Dist. LEXIS 62932 (D. Kan. June 14, 2011): Waiver of attorney-client privilege is governed by state law, while waiver of the work product protection is governed by federal law. Frontier Refining, Inc. v. Gorman-Rupp Co., Inc., 136 F.3d 695, 702 n.10 (10th Cir. 1998). Note: This ...
From SEC v. McNaul, 2011 U.S. Dist. LEXIS 62932 (D. Kan. June 14, 2011): Waiver of attorney-client privilege is governed by state law, while waiver of the work product protection is governed by federal law. Frontier Refining, Inc. v. Gorman-Rupp…
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Filing Second Action to Avoid Seeking Leave of Court to Amend Is Subject to § 1927 Sanction in First Action (Despite General Rule that Filing a Complaint Doesn’t Violate § 1927 Because It Isn’t Multiplicative)

From Thurmond v. Wayne County, 2011 U.S. App. LEXIS 11817 (6th Cir. June 10,2011): On March 8, 2007, Thurmond filed a complaint in the Wayne County Circuit Court, which Wayne County removed to the U.S. District Court for the Eastern District of Michigan. After almost one year and a litany of discovery motions from both parties, Thurmond ...
From Thurmond v. Wayne County, 2011 U.S. App. LEXIS 11817 (6th Cir. June 10,2011): On March 8, 2007, Thurmond filed a complaint in the Wayne County Circuit Court, which Wayne County removed to the U.S. District Court for the Eastern…
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Interim Injunctive Award Issued by Emergency Arbitrator Pending Constitution of, and Subject to Review by, Arbitration Panel Is Not Sufficiently Final to Permit Judicial Review

From Chinmax Med. Sys. v. Alere San Diego, Inc., 2011 U.S. Dist. LEXIS 57889 (S.D. Cal. May 27, 2011): On October 13, 2010, Chinmax filed a demand for arbitration with the International Centre for Dispute Resolution division of the American Arbitration Association ("AAA"). On October 15, 2010, Alere filed a request for an emergency inte ...
From Chinmax Med. Sys. v. Alere San Diego, Inc., 2011 U.S. Dist. LEXIS 57889 (S.D. Cal. May 27, 2011): On October 13, 2010, Chinmax filed a demand for arbitration with the International Centre for Dispute Resolution division of the American…
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Indirect Injury from Patent-Holder’s Fraud on Patent Office, Rendering Contract to Sell Defectively Patented Product Less Valuable, ≠ RICO Injury; Fraud on Patent Office ≠ Predicate Act

From Jersey Asparagus Farms, Inc. v. Rutgers Univ., 2011 U.S. Dist. LEXIS 58053 (D.N.J. May 31, 2011): This matter arises out of a now-terminated, exclusive license agreement through which Plaintiff Jersey Asparagus Farms, Inc. ("JAFI") was authorized by Defendant Rutgers University ("Rutgers") to sell the latter's patented varieties of ...
From Jersey Asparagus Farms, Inc. v. Rutgers Univ., 2011 U.S. Dist. LEXIS 58053 (D.N.J. May 31, 2011): This matter arises out of a now-terminated, exclusive license agreement through which Plaintiff Jersey Asparagus Farms, Inc. (“JAFI”) was authorized by Defendant Rutgers…
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Recent Posts

“RICO Is a Judge’s Nightmare” — “The Requisite RICO Pleading Standards Are Far From Explicit, And The RICO Jurisprudence Offers Courts (And Plaintiffs) Little Guidance” (Good Quotes) — Common Elements of § 1962(a), (c) and (d)-Based Claims — Closed-End Continuity: Duration > 1 Year = Substantial Period of Time — Continuity: Courts Skeptical If Number of Victims and Schemes Is Limited — Untargeted Persons Who Suffer Derivative Injury Do Not Add to the Number of Victims Considered for Continuity Purposes — Open Ended Continuity Can Be Established by Showing Defendant Commits Predicate Acts As “Regular Way of Doing Business” — Citing the Existence of Other Lawsuits Alleging Similar Predicates ≠ Pleading Facts Demonstrating Defendant’s Commission of Similar Predicates Against Others

Practice of Seeking Leave to Amend after The Case Is Dismissed Is Discouraged

RICO: Release Executed After Alleged RICO Violations Extinguishes RICO Claim — Eighth Circuit Declines to Address Enforceability of A Release “That Is An Integral Part of An Alleged RICO Scheme Or That Immunizes Future RICO Conduct

Pleading — “Civil pleadings are supposed to mark the boundaries for discovery; discovery is not supposed to substitute for definite pleading” (Good Quote) — Shotgun Pleadings (11th Circuit):  Four Categories/Types

Rule 37(c)(1) Exclusion of Untimely Expert Report: Failure to Argue Harmlessness Essentially Waives Issue

Rule 37(b) Sanctions — Exclusion of Supplemental Expert Report for Advancing New Opinions — Third Circuit Exclusion Factors — “Importance of Excluded Evidence:” If, As Proponent Argues, There Is Nothing New, Then Exclusion Doesn’t Harm Proponent; If There Is, It Harms Opponent

RICO Pleading: Generic Allegations of Fraud (Failing Even to Set Forth Any False Representation) And Extortion (Failing to Describe Actual Threats) Too Conclusory to State a Claim

RICO Standing: Antitrust’s Indirect Purchaser Rule Applies in RICO Cases, Barring Claims by Indirect Purchasers Two Or More Steps Removed From The Violator In A Distribution Chain (Here, Truck Purchasers/Lessees Suing Manufacturer), Though Court Considers Bar “Unsupported by Sensible Principles”

RICO Pleading: Statutory Directive That RICO Be Liberally Construed Does Not Extend to More Liberal Pleading Requirements

Inherent Power and FRAP 38 Sanctions — Inherent Power Sanctions (Here, A Deterrence Payment of $25,000 to the Court — Goodyear Issue Not Addressed) May Be Imposed in Addition to Statutory Attorney’s Fees under 35 U.S.C. § 285 (Exceptional Patent Case) — § 285 Does Not Preclude A Separate Award of Sanctions Or Fees under Another Authority — Recidivism (25 Prior Lawsuits with Same Perceived Venue Deficiency) A Factor — Fact That Rule 11 Sanctions Were Unavailable Due to Dismissal of Lawsuit Opened the Door to Inherent Power Sanctions Under Chambers — FRAP 38 Sanctions Denied Because Issue Previously Unaddressed in Circuit — A Meritless Appeal Is By No Means Necessarily A Frivolous One (Good Quote)

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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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