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

RICO Statute of Limitations Accrues When Plaintiff Had Sufficient Information to Warrant an Investigation (Merck Unmentioned but Irrelevant)

From Daly v. Pearl Spirits, Inc., 2011 U.S. App. LEXIS 12587 (9th Cir. April 13, 2011): "The statute of limitations for civil RICO actions is four years." *** "The limitations period for civil RICO actions begins to run when a plaintiff knows or should know of the injury which is the basis for the action." Living Designs, Inc. v. E.I. D ...
From Daly v. Pearl Spirits, Inc., 2011 U.S. App. LEXIS 12587 (9th Cir. April 13, 2011): “The statute of limitations for civil RICO actions is four years.” *** “The limitations period for civil RICO actions begins to run when a…
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Federal Government Document Posted on County’s Website ≠ Admission under California Law — Is Inadmissible Hearsay

From Aikens v. County of Ventura, 2011 Cal. App. Unpub. LEXIS 4986 (Cal. App. June 30, 2011): Homeowners brought an action against local governmental entities for inverse condemnation, continuing public nuisance, and continuing dangerous condition of public property. The governmental entities are the County of Ventura (the County) and t ...
From Aikens v. County of Ventura, 2011 Cal. App. Unpub. LEXIS 4986 (Cal. App. June 30, 2011): Homeowners brought an action against local governmental entities for inverse condemnation, continuing public nuisance, and continuing dangerous condition of public property. The governmental…
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Recipient of Inadvertently-Produced, Privileged Document May Inquire into Non-Privileged Facts Learned Only from an Ethically Innocent Review of that Document

From Doca Co. v. Westinghouse Elec. Co., LLC, 2011 U.S. Dist. LEXIS 59352 (W.D. Pa. June 2, 2011): Plaintiff DOCA Company ... [i]s successor to Caldon Company (hereinafter referred to as "Caldon")*** A Caldon employee created a timeline designed to help counsel understand the background facts of the current lawsuit. This timeline ...
From Doca Co. v. Westinghouse Elec. Co., LLC, 2011 U.S. Dist. LEXIS 59352 (W.D. Pa. June 2, 2011): Plaintiff DOCA Company … [i]s successor to Caldon Company (hereinafter referred to as “Caldon”)*** A Caldon employee created a timeline designed to…
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Is an Abuse-of-Process or Malicious Prosecution Counterclaim Compulsory or Permissive in the Action That Is Allegedly Abusive? Case Law Split

From Walker v. THI of New Mexico at Hobbs Ctr., 2011 U.S. Dist. LEXIS 65287 (D. N.M. May 20, 2011): The authorities have split on the question whether an abuse-of-process counterclaim is a compulsory counterclaim in the action which is allegedly abusive. See Pochiro v. Prudential Ins. Co. of Am., 827 F.2d 1246, 1252 (9th Cir. 1987).
From Walker v. THI of New Mexico at Hobbs Ctr., 2011 U.S. Dist. LEXIS 65287 (D. N.M. May 20, 2011): The authorities have split on the question whether an abuse-of-process counterclaim is a compulsory counterclaim in the action which is…
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Response to Document Request Must Identify Which Previously-Produced Documents Are Responsive — Non-Specific = Evasive — When Failure to Timely Provide Privilege Log Effects Waiver of Privilege (Good Quote)

From USF Ins. Co. v. Smith’s Food & Drug Ctr., Inc., 2011 U.S. Dist. LEXIS 63926 (D. Nev. June 16, 2011): Smith's first response to Request Nos. 5, 6 and 9-25 consisted solely of a repeated boilerplate objection. Its supplemental responses to each of these requests likewise consisted of a substantially similar, repeated response:
From USF Ins. Co. v. Smith’s Food & Drug Ctr., Inc., 2011 U.S. Dist. LEXIS 63926 (D. Nev. June 16, 2011): Smith’s first response to Request Nos. 5, 6 and 9-25 consisted solely of a repeated boilerplate objection. Its supplemental…
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Inherent Power Sanction of Dismissal Appropriate for Refusing to Respect the Dignity of the Court

From Koehl v. Greene, 2011 U.S. App. LEXIS 12345 (2d Cir. June 16, 2011): The district court "has the inherent power to supervise and control its own proceedings and to sanction . . . a litigant for bad-faith conduct or for disobeying the court's orders." Mickle v. Morin, 297 F.3d 114, 125 (2d Cir. 2002). Among the sanctions available t ...
From Koehl v. Greene, 2011 U.S. App. LEXIS 12345 (2d Cir. June 16, 2011): The district court “has the inherent power to supervise and control its own proceedings and to sanction . . . a litigant for bad-faith conduct or…
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Supreme Court: Fiduciary Exception to Attorney-Client Privilege Does Not Apply to U.S. as Trustee of Funds Belonging to Indian Tribes

From United States v. Jicarilla Apache Nation, 2011 U.S. LEXIS 4381 (U.S. June 13, 2011) (reversing the decision excerpted in our post of January 3, 2010): The attorney-client privilege ranks among the oldest and most established evidentiary privileges known to our law. The common law, however, has recognized an exception to the privile ...
From United States v. Jicarilla Apache Nation, 2011 U.S. LEXIS 4381 (U.S. June 13, 2011) (reversing the decision excerpted in our post of January 3, 2010): The attorney-client privilege ranks among the oldest and most established evidentiary privileges known to…
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Supreme Court: Foreign Manufacturer’s Single Sale into State Plus General Marketing in U.S. Insufficient to Support Personal Jurisdiction in Products Case — Stream of Commerce Theory Limited — Means of Consenting to Jurisdiction

From J. McIntyre Machinery, Ltd. v. Nicastro, 2011 U.S. LEXIS 4800 (U.S. June 27, 2011) (plurality opinion of Justice Kennedy): Whether a person or entity is subject to the jurisdiction of a state court despite not having been present in the State either at the time of suit or at the time of the alleged injury, and despite not h ...
From J. McIntyre Machinery, Ltd. v. Nicastro, 2011 U.S. LEXIS 4800 (U.S. June 27, 2011) (plurality opinion of Justice Kennedy): Whether a person or entity is subject to the jurisdiction of a state court despite not having been present in…
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Supreme Court: Personal Jurisdiction — Stream of Commerce Theory Relevant Only to Specific Jurisdiction — Foreign Subsidiaries of U.S. Parent Not Subject to Personal Jurisdiction in State Court for Acts Unrelated to State

From Goodyear Dunlop Tires Operations, S.A. v. Brown, 2011 U.S. LEXIS 4801 (U.S. June 27, 2011): This case concerns the jurisdiction of state courts over corporations organized and operating abroad. We address, in particular, this question: Are foreign subsidiaries of a United States parent corporation amenable to suit in state court on ...
From Goodyear Dunlop Tires Operations, S.A. v. Brown, 2011 U.S. LEXIS 4801 (U.S. June 27, 2011): This case concerns the jurisdiction of state courts over corporations organized and operating abroad. We address, in particular, this question: Are foreign subsidiaries of…
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Supreme Court: Only Speaker or Person with Ultimate Authority for Content of Statement Is Liable under 10b-5 for “Making” It — Merely Hosting Document on Website ≠ Adopting It

From Janus Capital Group, Inc. v. First Deriv. Traders, 180 L. Ed. 2d 166, 2011 U.S. LEXIS 4380 (U.S. June 13, 2011): One "makes" a statement by stating it. When "make" is paired with a noun expressing the action of a verb, the resulting phrase is "approximately equivalent in sense" to that verb. 6 Oxford English Dictionary 66 ...
From Janus Capital Group, Inc. v. First Deriv. Traders, 180 L. Ed. 2d 166, 2011 U.S. LEXIS 4380 (U.S. June 13, 2011): One “makes” a statement by stating it. When “make” is paired with a noun expressing the action of…
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Recent Posts

Rule 37 Discovery Sanctions: Ninth Circuit’s Five-Factor Test for Gauging Appropriateness of Dismissal — The Limited Utility of Rule 12(f) Motions to Strike

RICO: Employer Suffered Harm to Business or Property When Kickbacks Paid to Employees in Real Estate Transactions Done for Employer — Expert Testimony Sufficient to Prove Harm — Proof That Employer Paid Above-Market Prices Not Essential — Non-Disclosure of Certain Damages in Initial Disclosures Cured by Expert Report, Which Also Rendered Initial Non-Disclosure Harmless

Spoliation: Dismissal Under Rule 37(e)(2) and Monetary Sanctions Under Rule 37(e)(1), Implicitly Reading The “Or” Between 37(e)(1) and 37(e)(2) As Conjunctive, Not Disjunctive — Clear Error Standard of Review for District Court’s Intent (= Bad Faith) Finding under 37(e)(2)(C) — Additional Monetary Sanctions Imposed on Claimants under 28 U.S.C. § 1927 and Rule 37(a)(5) — No Right to Jury Determination of Intent under Rule 37(e)(2) — “Substantially Justified” in Rule 37(a)(5) Has Same Meaning As In Equal Access to Justice Act and Thus Rule 11 — Meaning of “Unreasonable and Vexatious” in 7th Circuit

Inherent 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

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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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