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

Lawyer Serving as Expert Is Not Subject to Lawyer Conflict-of-Interest Rules

The majority view is that a lawyer retained as an expert witness is not acting in a representational capacity and that therefore the attorney conflict-of-interest rules do not apply. See, e.g., ABA Committee on Ethics and Professional Responsibility, Formal Opinion 97-407 (1997); Nassau County (New York) Bar Opinion 2005-1 (April 6, 2005); D.C. Ethics Opin ...
The majority view is that a lawyer retained as an expert witness is not acting in a representational capacity and that therefore the attorney conflict-of-interest rules do not apply. See, e.g., ABA Committee on Ethics and Professional Responsibility, Formal Opinion…
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Conclusory Finding of Bad Faith Cannot Sustain Inherent Power Sanction — § 105(a) of Bankruptcy Code Codifies Inherent Power — Sins of Lawyer Not Visited on Client, Whose Bad Faith Must Separately be Found — Good Quotes

From DeLauro v. Porto (In re Porto), 2011 U.S. App. LEXIS 13941 (11th Cir. July 8, 2011): "While bad faith is the key to unlocking the court's inherent power, a court must do more than conclude that a party acted in bad faith; it should make specific findings as to the party's conduct that warrants sanctions." Byrne v. Nezhat, 2 ...
From DeLauro v. Porto (In re Porto), 2011 U.S. App. LEXIS 13941 (11th Cir. July 8, 2011): “While bad faith is the key to unlocking the court’s inherent power, a court must do more than conclude that a party acted…
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Arbitration — What Constitutes a “Reasoned Award” — No Vacatur for Sparse Award Where Parties Did Not Contract for Findings and Conclusions and Primary Issue Was Credibility

From Cat Charter, LLC v. Schurtenberger, 2011 U.S. App. LEXIS 14266 (11th Cir. July 13, 2011): The question here is whether arbitrators "exceeded their powers" — thereby justifying vacatur of their award under § 10(a)(4) [of the Federal Arbitration Act] — when they purportedly failed to provide a "reasoned award" as agreed to by the ...
From Cat Charter, LLC v. Schurtenberger, 2011 U.S. App. LEXIS 14266 (11th Cir. July 13, 2011): The question here is whether arbitrators “exceeded their powers” — thereby justifying vacatur of their award under § 10(a)(4) [of the Federal Arbitration Act]…
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SEC Cannot Rely on Conspiracy Theory of Venue under § 78aa of the 1934 Act — Circuit Split

From SEC v. Johnson, 2011 U.S. App. LEXIS 13123 (D.C. Cir. June 28, 2011): Venue for a civil action under the securities laws lies "in the district wherein the defendant is found or is an inhabitant or transacts business," or "in the district wherein any act or transaction constituting the violation occurred." § 78aa. By the reference ...
From SEC v. Johnson, 2011 U.S. App. LEXIS 13123 (D.C. Cir. June 28, 2011): Venue for a civil action under the securities laws lies “in the district wherein the defendant is found or is an inhabitant or transacts business,” or…
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While Trial Court Must Follow Appellate Mandate, It Is Free to Consider as Matter of First Impression Issues Not Explicitly or Implicitly Decided by Court of Appeals

From Centrix HR, LLC v. On-Site Staff Mgmt., Inc., 2011 U.S. App. LEXIS 13001 (3d Cir. June 23, 2011): "[W]hether the district court properly interpreted and applied . . . our [remand] mandate . . . [is an] issue . . . of law, subject to plenary review[.] . . . A trial court must implement both the letter and spirit of the mandate, taki ...
From Centrix HR, LLC v. On-Site Staff Mgmt., Inc., 2011 U.S. App. LEXIS 13001 (3d Cir. June 23, 2011): “[W]hether the district court properly interpreted and applied . . . our [remand] mandate . . . [is an] issue .…
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Settlement Payments Doctrine Insulates Enron’s Voluntary Repurchase of Debt Shortly before Its Bankruptcy — Majority Panel Decision in Second Circuit

From In re Enron Creditors Recovery Corp. v. Alfa, S.A.B., 2011 U.S. App. LEXIS 13177 (2d Cir. June 28, 2011): This appeal raises an issue of first impression in the courts of appeals: whether 11 U.S.C. § 546(e), which shields "settlement payments" from avoidance actions in bankruptcy, extends to an issuer's payments to redeem its comm ...
From In re Enron Creditors Recovery Corp. v. Alfa, S.A.B., 2011 U.S. App. LEXIS 13177 (2d Cir. June 28, 2011): This appeal raises an issue of first impression in the courts of appeals: whether 11 U.S.C. § 546(e), which shields…
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Evidence Sufficient to Authenticate Profile Page on Social Networking Site

From Griffin v. Maryland, 419 Md. 343, 19 A.3d 415 (Ct. App. 2011) (reversing the decision of the Court of Special Appeals excerpted in our post of June 2, 2010): We ... hold that the pages allegedly printed from [Defendant] Griffin's girlfriend's MySpace profile were not properly authenticated.... Griffin was charged in numerous ...
From Griffin v. Maryland, 419 Md. 343, 19 A.3d 415 (Ct. App. 2011) (reversing the decision of the Court of Special Appeals excerpted in our post of June 2, 2010): We … hold that the pages allegedly printed from [Defendant]…
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PSLRA Precludes RICO Action Predicated on Aiding and Abetting Securities Fraud and other Conduct that Sounds in Securities Fraud but Is Not Actionable by the Plaintiff

From MLSMK Inv. Co. v. JPMorgan Chase & Co., 2011 U.S. App. LEXIS 13822 (2d Cir. July 7, 2011): This case arises out of the massive and now infamous Ponzi scheme perpetrated by Bernard L. Madoff ***. Between October and December 2008, the plaintiff, MLSMK Investment Company ("MLSMK"), invested $12.8 million with Madoff's inv ...
From MLSMK Inv. Co. v. JPMorgan Chase & Co., 2011 U.S. App. LEXIS 13822 (2d Cir. July 7, 2011): This case arises out of the massive and now infamous Ponzi scheme perpetrated by Bernard L. Madoff ***. Between October and…
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MBA Student’s Breach of Contract against Duke Fails to State a Claim — Elements of the Contract between a Student and Educational Institution

From Yurimindi v. Fuqua School of Business, 2011 U.S. App. LEXIS 13482 (3d Cir. July 1, 2011): In his 119-page third amended complaint, Vamsidhar Vurimindi sued Duke University's Fuqua School of Business ("Duke"), his fellow students in a Duke weekend MBA program, and corporations that employed or allegedly employed those students. ***< ...
From Yurimindi v. Fuqua School of Business, 2011 U.S. App. LEXIS 13482 (3d Cir. July 1, 2011): In his 119-page third amended complaint, Vamsidhar Vurimindi sued Duke University’s Fuqua School of Business (“Duke”), his fellow students in a Duke weekend…
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Self-Authentication of Newspaper and Periodical Articles Published Only on the Internet

Courts recognize that newspaper or other periodical stories posted on websites are self-authenticating under Federal Rule of Evidence 902(6) (Newspapers and Periodicals). See the article Internet and Email Evidence 2011 posted here. Although the cases have ...
Courts recognize that newspaper or other periodical stories posted on websites are self-authenticating under Federal Rule of Evidence 902(6) (Newspapers and Periodicals). See the article Internet and Email Evidence 2011 posted here. Although the cases have not found it…
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Recent Posts

nherent Power Sanction of Dismissal — Preponderance of the Evidence Burden of Proof, Not Clear and Convincing Evidence (7th Circuit)

§ 1927 Sanctions — Must A Lawyer Who Unreasonably and Vexatiously Multiplies Federal Court Proceedings Be Acting “As An Attorney” When Committing the Misconduct To Be Subject to Sanction under § 1927?

Rule 37 Sanctions — Unfamiliarity With Litigation Process Does Not Excuse Intentional Disregard of Court Order — Also Affirming Rule 26(g) Sanctions on Clients and Counsel for False Representations That All Responsive Documents Had Been Produced

Supreme Court: Notice of Appeal Filed After The Original Deadline But Before Reopening by The District Court Is Timely — It Relates Forward to The Date of The Order Making The Appeal Possible — Second Notice of Appeal After Reopening Unnecessary

Rule 37 Default Judgment: Second Circuit’s Four-Factor Test for Imposing Defaults and Three-Factor Test for Lifting Them

Rule 37 Default Judgment — Tenth Circuit Multifactor Test Is Not Exhaustive But a Non-Exclusive List of “Sometimes-Helpful Criteria Or Guide Posts”— Appeal from Preliminary Injunction Mooted by Entry of Permanent Injunction — Difficulty in Collecting Damages Award May Equal Irreparable Injury — A Monetary Award For Past Conduct Does Not Preclude A Permanent Injunction Against Similar Wrongful Conduct Likely To Occur In The Future

RICO: Cover-Up Within Limitations Period of Untimely RICO Violation “Was Merely A Continuation” Of The Original Injury And Could Not Be Used “As A ‘Bootstrap’ To Salvage [The] Time-Barred Claims–Declining to Apply Pinkerton Doctrine to Civil RICO Claims

Inherent Power — Circumstantial Evidence — Fact That Bad Faith May Be Shown by Establishing That Conduct Was So Egregious It Was Necessarily Committed in Bad Faith Does Not Mean That Bad Faith Must Be The Sole Explanation for The Bad Conduct

RICO Causation: Testing Labs’ Misstatements As to Alcohol Tests’ Efficacy Not Communicated to Plaintiffs’ Employers Did Not Cause Plaintiffs’ Professional Harm

Supreme Court: Standing — When The Government Prohibits Or Impedes Company A from Using Company B’s Product, Both Are Objects of the Government’s Action And Have Standing to Contest It — “To Demonstrate Standing, Plaintiffs Must Answer A Basic Question—‘What’s It To You?’” (Good Quote) — Expert Evidence Not Required to Establish Standing — “Judges Are Not Required To Exhibit A Naiveté From Which Ordinary Citizens Are Free’” (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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