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

Federal Rules of Evidence Do Not Apply in Sanctions Proceedings, But Evidence Must Bear Indicia of Reliability — Adverse Inference for Scrubbing of Server while on Notice of Claim

From Atpac, Inc. v. Aptitude Solutions, Inc., 2011 U.S. Dist. LEXIS 40043 (E.D. Cal. April 13, 2011): I. Evidentiary Objections The parties have filed numerous evidentiary objections. "While the Federal Rules of Evidence do not necessarily apply in the context of a motion for sanctions, evidence relied upon must, a ...
From Atpac, Inc. v. Aptitude Solutions, Inc., 2011 U.S. Dist. LEXIS 40043 (E.D. Cal. April 13, 2011): I. Evidentiary Objections The parties have filed numerous evidentiary objections. “While the Federal Rules of Evidence do not necessarily apply in the context…
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Bond on Appeal May Include Sum for Appellate Attorneys’ Fees If Judgment Is Based on Fee-Shifting Statute (Here, RICO)

From Int’l Floor Crafts, Inc. v. Dziemit, 2011 U.S. App. LEXIS 8181 (1st Cir. April 21, 2011): Federal Rule of Appellate Procedure 7 states, "In a civil case, the district court may require an appellant to file a bond or provide other security in any form and amount necessary to ensure payment of costs on appeal." Fed. R. App. P. 7. I ...
From Int’l Floor Crafts, Inc. v. Dziemit, 2011 U.S. App. LEXIS 8181 (1st Cir. April 21, 2011): Federal Rule of Appellate Procedure 7 states, “In a civil case, the district court may require an appellant to file a bond or…
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Circumstantial Evidence of Email Evidence — Massachusetts Supreme Court

From Commonwealth v. Purdy, 2011 Mass. LEXIS 169 (Mass. Sup. Ct. April 15, 2011): Authentication of e-mail messages. The defendant argues that the judge erred in admitting the ten e-mail exchanges because the evidence was insufficient to authenticate them as having been authored by him. "The requirement of authentication . . . ...
From Commonwealth v. Purdy, 2011 Mass. LEXIS 169 (Mass. Sup. Ct. April 15, 2011): Authentication of e-mail messages. The defendant argues that the judge erred in admitting the ten e-mail exchanges because the evidence was insufficient to authenticate them as…
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Choosing between Competing Contractual Venue Provisions — RICO Claims Subject to Contractual Venue Provision

From Bahamas Sales Associate, LLC v. Byers, 2011 U.S. Dist. LEXIS 39557 (M.D. Fla. Mar. 31, 2011): The Byers and Willis cases trace their origins to Byers' and Willis' execution of contracts for the purchase of undeveloped parcels of "real property in the Versailles Sur Mer subdivision on Grand Bahama Island, which was alternatively mark ...
From Bahamas Sales Associate, LLC v. Byers, 2011 U.S. Dist. LEXIS 39557 (M.D. Fla. Mar. 31, 2011): The Byers and Willis cases trace their origins to Byers’ and Willis’ execution of contracts for the purchase of undeveloped parcels of “real…
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District Court Is Not Obliged to Inform Pro Se Litigants of Evidentiary or Procedural Rules and Properly Requires Adherence to Them

From Keeler vb. Aramark, 2011 U.S. App. LEXIS 7216 (10th Cir. April 7, 2011): We ... consider two procedural arguments Mr. Keeler makes — that the district court should have advised him of the requirement to authenticate his exhibits when it asked his preference on converting Wesley's motion to dismiss into one for summary judgment, a ...
From Keeler vb. Aramark, 2011 U.S. App. LEXIS 7216 (10th Cir. April 7, 2011): We … consider two procedural arguments Mr. Keeler makes — that the district court should have advised him of the requirement to authenticate his exhibits when…
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There Is Almost Never Pendent Appellate (Inextricably-Intertwined) Jurisdiction over Denial of Personal-Jurisdiction or Venue Motions on Appeal from Denial of Motion to Compel Arbitration

From Turi v. Main Street Adoption Servs., LLP, 633 F.3d 496 (6th Cir. 2011): Main Street Adoption Services, LLP and two of its officers (collectively, Main Street), none of whom are residents of Michigan, have filed this interlocutory appeal challenging the district court's conclusions that (1) it has personal jurisdiction over Main St ...
From Turi v. Main Street Adoption Servs., LLP, 633 F.3d 496 (6th Cir. 2011): Main Street Adoption Services, LLP and two of its officers (collectively, Main Street), none of whom are residents of Michigan, have filed this interlocutory appeal challenging…
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Securities — Section 21A of the Exchange Act Is Not a Statute of Repose — Differences between Statutes of Limitations and Repose — Statute of Limitations Barring Government Rights Strictly Construed in Favor of Government

From SEC v. Wyly, 2011 U.S. Dist. LEXIS 35793 (S.D.N.Y. Mar. 31, 2011): On July 29, 2010, following a six-year investigation into matters spanning almost two decades, the Securities and Exchange Commission ("SEC") filed this suit alleging thirteen Claims for securities violations by billionaire brothers Samuel Wyly and Charles J. Wyly (t ...
From SEC v. Wyly, 2011 U.S. Dist. LEXIS 35793 (S.D.N.Y. Mar. 31, 2011): On July 29, 2010, following a six-year investigation into matters spanning almost two decades, the Securities and Exchange Commission (“SEC”) filed this suit alleging thirteen Claims for…
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Facebook Case: Sophisticated Party’s Release of All Claims Extends to Unknown Securities Fraud, Despite § 29(a) of Exchange Act — Nor Does § 29(a) Trump Confidentiality Agreement Barring Use of Statements Made in Mediation

From Facebook, Inc. v. Pac. Nw. Software, Inc., 2011 U.S. App. LEXIS 7430 (9th Cir. Apr. 11, 2011): After signing the Settlement Agreement, Facebook notified the Winklevosses that an internal valuation prepared to comply with Section 409A of the tax code put the value of its common stock at $8.88 per share. The Winklevosses argue that Fa ...
From Facebook, Inc. v. Pac. Nw. Software, Inc., 2011 U.S. App. LEXIS 7430 (9th Cir. Apr. 11, 2011): After signing the Settlement Agreement, Facebook notified the Winklevosses that an internal valuation prepared to comply with Section 409A of the tax…
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RICO: Corporation + Subsidiaries + Affiliates + Customers + Independent Contractors + Regulators ≠ Enterprise

From Shields v. UnumProvident Corp., 2011 U.S. App. LEXIS 5611 (6th Cir. Mar. 17, 2011): In interpreting RICO, courts have applied a "distinctness" requirement, which requires the "person" charged with violating RICO be a separate entity from the "enterprise." See Begala v. PNC Bank, Ohio, 214 F.3d 776, 781 (6th Cir. 2000). Under this r ...
From Shields v. UnumProvident Corp., 2011 U.S. App. LEXIS 5611 (6th Cir. Mar. 17, 2011): In interpreting RICO, courts have applied a “distinctness” requirement, which requires the “person” charged with violating RICO be a separate entity from the “enterprise.” See…
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Twiqbal Does Not Apply to Affirmative Defenses — Caselaw Split

From Tyco Fire Prods. v. Victaulic Co., 2011 U.S. Dist. LEXIS 40012 (E.D. Pa. April 13, 2011): Plaintiff asks the Court to strike the affirmative defense to that effect under Federal Rule of Civil Procedure 12(f), and to dismiss the corresponding counterclaim pursuant to Rule 12(b)(6). *** Plaintiff's motion is governed by Rules ...
From Tyco Fire Prods. v. Victaulic Co., 2011 U.S. Dist. LEXIS 40012 (E.D. Pa. April 13, 2011): Plaintiff asks the Court to strike the affirmative defense to that effect under Federal Rule of Civil Procedure 12(f), and to dismiss 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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