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

Legal Malpractice Claim Alleging Misconduct During Representation Is Not Duplicative of Fiduciary Duty Claim Alleging Misconduct After Termination of Representation

From Neuman v. Frank, 82 A.D. 3d 1642 (4th Dep’t 2011): "A cause of action for legal malpractice must be based on the existence of an attorney-client relationship at the time of the alleged malpractice' " (TVGA Eng'g, Surveying, P.C. v Gallick [appeal No. 2], 45 A.D.3d 1252, 1256, 846 N.Y.S.2d 506; see Compis Servs., Inc. v Greenman, ...
From Neuman v. Frank, 82 A.D. 3d 1642 (4th Dep’t 2011): “A cause of action for legal malpractice must be based on the existence of an attorney-client relationship at the time of the alleged malpractice’ ” (TVGA Eng’g, Surveying, P.C.…
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Factors for Determining Whether a Current Decision Should Be Given Retroactive Effect in a Civil Case

From Graff v. Town of Pembroke, NH, 447 B.R. 51, 2011 Bankr. LEXIS 783 (Bankr. D.N.H. 2011): Federal courts traditionally looked to three factors in determining whether a current decision in a civil case should be given retroactive effect or only apply prospectively. Those factors are: (1) whether the more recent rule or deci ...
From Graff v. Town of Pembroke, NH, 447 B.R. 51, 2011 Bankr. LEXIS 783 (Bankr. D.N.H. 2011): Federal courts traditionally looked to three factors in determining whether a current decision in a civil case should be given retroactive effect or…
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Attorney-Client Privilege — Perlman Doctrine, Which Permits Immediate Review of Order Requiring Third Party to Disclose Privileged Information It Possesses, No Longer Applies If Privilege Holder Is a Party, after Mohawk

From Hold-Orsted v. City of Dickson, 2011 U.S. App. LEXIS 10379 (6th Cir. May 24, 2011): One such justification for an immediate appeal exists in situations "where a party claiming a privilege is 'powerless to avert the mischief of the order.'" Ross, 423 F.3d at 599 (quoting Perlman v. United States, 247 U.S. 7, 13 (1918)). "Under P ...
From Hold-Orsted v. City of Dickson, 2011 U.S. App. LEXIS 10379 (6th Cir. May 24, 2011): One such justification for an immediate appeal exists in situations “where a party claiming a privilege is ‘powerless to avert the mischief of the…
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The Plaintiff’s Heavy Burden of Proof in a Legal Malpractice Action under New York Law — Good Quote

From Sabalza v.Salgado, 2011 NY Slip Op 4732, 2011 N.Y. App. Div. LEXIS 4657 (1st Dep’t June 7, 2011): A plaintiff's burden of proof in a legal malpractice action is a heavy one (Lindenman v Kreitzer, 7 AD3d 30 [2004]). The plaintiff must first prove the hypothetical outcome of the underlying litigation and, then, the attorney's lia ...
From Sabalza v.Salgado, 2011 NY Slip Op 4732, 2011 N.Y. App. Div. LEXIS 4657 (1st Dep’t June 7, 2011): A plaintiff’s burden of proof in a legal malpractice action is a heavy one (Lindenman v Kreitzer, 7 AD3d 30 [2004]).…
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Forum Non Conveniens — Alternate Forum Must Have Jurisdiction over All Defendants — Movant Must Also Establish the Claims and Remedies Available There

From Lans v. Adduci Mastriani & Schaumberg L.L.P, 2011 U.S. Dist. LEXIS 54463 (D.D.C. May 23, 2011): a. Adequacy of alternative forum In order to establish that an alternative forum is adequate, the defendant must first establish that an alternative forum is available where the plaintiff may bring his claims. Normally, ...
From Lans v. Adduci Mastriani & Schaumberg L.L.P, 2011 U.S. Dist. LEXIS 54463 (D.D.C. May 23, 2011): a. Adequacy of alternative forum In order to establish that an alternative forum is adequate, the defendant must first establish that an alternative…
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RICO — Enactment of Restrictive Legislation and Law Enforcement Activity against Other Similarly-Situated Companies Are Intervening Acts Breaking Proximate Causation between Predicate Acts and Diminution of Stock Price

From Wodka v. Causeway Capital Mgmt. LLC, 2011 U.S. App. LEXIS 9959 (9th Cir. May 16, 2011): To state a civil RICO claim, a plaintiff must show "that a RICO predicate offense 'not only was a "but for" cause of his injury, but was the proximate cause as well.'" Hemi Group, LLC v. City of New York, U.S. , 130 S. Ct. 983, 989 (2010) ...
From Wodka v. Causeway Capital Mgmt. LLC, 2011 U.S. App. LEXIS 9959 (9th Cir. May 16, 2011): To state a civil RICO claim, a plaintiff must show “that a RICO predicate offense ‘not only was a “but for” cause of…
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Statements Made in Presence of Filmmakers Are Not Privileged and Cannot Effect a Subject Matter Waiver — Crime, Alone, Insufficient to Trigger Crime-Fraud Exception

From In re Application of Chevron Corp., 2011 U.S. App. LEXIS 10510 (3d Cir. May 25, 2011): This matter comes on before this Court on appeal from the District Court's December 20, 2010 order granting Chevron Corporation (Chevron), and two of its attorneys, Rodrigo Pérez Pallares and Ricardo Reis Veiga (collectively with Chevron "the Ch ...
From In re Application of Chevron Corp., 2011 U.S. App. LEXIS 10510 (3d Cir. May 25, 2011): This matter comes on before this Court on appeal from the District Court’s December 20, 2010 order granting Chevron Corporation (Chevron), and two…
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Five-Factor Test for Determining Whether to Grant an Extension of a Discovery Period Set Forth in a Scheduling Order

From Bentkowski v. Scene Magazine, 637 F.3d 689 (6th Cir. 2011): Federal Rule of Civil Procedure 16(b)(4) provides that "[a] schedule may be modified only for good cause and with the judge's consent." In reviewing a district court's denial of additional time for discovery, courts consider five factors: "(1) when the moving party learne ...
From Bentkowski v. Scene Magazine, 637 F.3d 689 (6th Cir. 2011): Federal Rule of Civil Procedure 16(b)(4) provides that “[a] schedule may be modified only for good cause and with the judge’s consent.” In reviewing a district court’s denial of…
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Sanctions — Sua (Nostra) Sponte Order to Show Cause for Vexatious and Frivolous Appeal Contemplates Joint and Several Liability on Client and Counsel, Leaving It to Them to Sort Out

From Gallop v. Cheney, 2011 U.S. App. LEXIS 8554 (2d Cir. April 27, 2011): [W]hile the government has not moved for sanctions, the record on appeal leaves no doubt that this appeal, to say nothing of the original complaint, was "brought without the slightest chance of success," and therefore should not have been brought at all, even if ...
From Gallop v. Cheney, 2011 U.S. App. LEXIS 8554 (2d Cir. April 27, 2011): [W]hile the government has not moved for sanctions, the record on appeal leaves no doubt that this appeal, to say nothing of the original complaint, was…
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Sequence of Decisionmaking — Decision on Statutory Removal May Precede Resolution of Motions to Dismiss for Lack of Subject Matter or Personal Jurisdiction

From Red Cloud Assets, LLC v. Harris Aviation, LLC, 2011 U.S. Dist. LEXIS 52284 (W.D. Okla. May 16, 2011): Priority of the Parties' Motions Each side urges the Court to take up its Motion first. The removing defendants contend the issue of personal jurisdiction is easily resolved and should result in their prompt dismis ...
From Red Cloud Assets, LLC v. Harris Aviation, LLC, 2011 U.S. Dist. LEXIS 52284 (W.D. Okla. May 16, 2011): Priority of the Parties’ Motions Each side urges the Court to take up its Motion first. The removing defendants contend the…
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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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