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

Appellate Review of District Court-Ordered Arbitration Must Specify the Standard of Review or Is Limited to FAA Grounds — Mere Recitation of “Appeal Rights” Inadequate — No Direct Appeal to Circuit from Court-Ordered Arbitration

From Johnson v. Wells Fargo Home Mortgage, Inc., 2011 U.S. App. LEXIS 2908 (9th Cir. Feb. 15, 2011): After a ... magistrate judge held a settlement conference three weeks before the trial's scheduled start date, the parties stipulated to binding arbitration of Johnson's FCRA claim. The District Court entered the parties' stipulation as ...
From Johnson v. Wells Fargo Home Mortgage, Inc., 2011 U.S. App. LEXIS 2908 (9th Cir. Feb. 15, 2011): After a … magistrate judge held a settlement conference three weeks before the trial’s scheduled start date, the parties stipulated to binding…
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Where Agency Has Its Counsel Sign Formal Determination, It Waives Privilege and Work Product for All Related Communications with Counsel and for Counsel’s Investigation — Depositions of Counsel Permitted

From Arizona ex rel. Goddard v. Frito-Lay, Inc., 2011 U.S. Dist. LEXIS 22813 (D. Ariz. Mar. 7, 2011): This discovery dispute arises in a case in which Arizona Civil Rights Division ("ACRD") brought suit against Defendants Frito-Lay. The ACRD brought suit after investigating the complaints of discrimination brought by the Intervenor Shel ...
From Arizona ex rel. Goddard v. Frito-Lay, Inc., 2011 U.S. Dist. LEXIS 22813 (D. Ariz. Mar. 7, 2011): This discovery dispute arises in a case in which Arizona Civil Rights Division (“ACRD”) brought suit against Defendants Frito-Lay. The ACRD brought…
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Rule 37(c)(1) Preclusion Sanction for Untimely Expert Report — Factors for “Substantially Justified” and “Harmless Error” Defenses

From Jalbert v. Grautski, 2008 U.S. Dist. LEXIS 119268 (D. Mass. Mar. 31, 2008): Under Fed. R. Civ. P. 37.1(c), a party's failure to disclose information or identify a witness as required by Rule 26(a) will normally result in the party being barred from using that information or witness at the trial, unless the failure was substantially ...
From Jalbert v. Grautski, 2008 U.S. Dist. LEXIS 119268 (D. Mass. Mar. 31, 2008): Under Fed. R. Civ. P. 37.1(c), a party’s failure to disclose information or identify a witness as required by Rule 26(a) will normally result in the…
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The Line Between Expert and Lay Opinion Testimony — Testimony as to Value of Real Property from an Indirect Corporate Owner — Disclosure Implications

From Reid Road Municipal Utility Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 2011 Tex. LEXIS 190 (Tex. Sup. Ct. Mar. 11, 2011): In this case we address *** whether an employee of the corporate general partner of a limited partnership qualifies to testify about the fair market value of partnership property under either the Property Ow ...
From Reid Road Municipal Utility Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 2011 Tex. LEXIS 190 (Tex. Sup. Ct. Mar. 11, 2011): In this case we address *** whether an employee of the corporate general partner of a…
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Territoriality or Extraterritoriality of RICO Determined by Location of Enterprise — Hertz & Boyle Set Standards for Determination

From European Community v. RJR Nabisco, Inc., 2011 U.S. Dist. LEXIS 23538 (E.D.N.Y. Mar. 8, 2011): Plaintiffs' Second Amended Complaint — a structureless morass of allegations, devoid of any sequential description of events — generally asserts that Defendants engaged in a global money-laundering scheme. *** Plaintiffs allege a repres ...
From European Community v. RJR Nabisco, Inc., 2011 U.S. Dist. LEXIS 23538 (E.D.N.Y. Mar. 8, 2011): Plaintiffs’ Second Amended Complaint — a structureless morass of allegations, devoid of any sequential description of events — generally asserts that Defendants engaged in…
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Circumstantial Authentication of Email Evidence

From Commonwealth v. Capece, 2010 Pa. Dist. & Cnty. Dec. LEXIS 506 (Ct. Common Pl. Oct. 18, 2010): Shortly after exchanging e-mail addresses with Defendant, the complainant began receiving e-mails from Defendant's e-mail address on her computer at school. *** She testified that she received approximately 140 e-mails from Defendant. *** ...
From Commonwealth v. Capece, 2010 Pa. Dist. & Cnty. Dec. LEXIS 506 (Ct. Common Pl. Oct. 18, 2010): Shortly after exchanging e-mail addresses with Defendant, the complainant began receiving e-mails from Defendant’s e-mail address on her computer at school. ***…
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10b-5 Count Requires PSLRA Sanctions Inquiry Even If Plaintiff Prevails on Others — Failure to Satisfy Rule 9(b) Not Necessarily Sanctionable — Position Supported by Some Authority and Not Foreclosed in Circuit Is Not Frivolous

From Fishoff v. Coty Inc., 634 F.3d 647 (2d Cir. 2011): Because Fishoff's initial complaint included a cause of action for violations of Section 10(b) of the Securities Exchange Act of 1934, pursuant to the terms of the Private Securities Litigation Reform Act ("PSLRA"), the district court was required at the close of litigation to ente ...
From Fishoff v. Coty Inc., 634 F.3d 647 (2d Cir. 2011): Because Fishoff’s initial complaint included a cause of action for violations of Section 10(b) of the Securities Exchange Act of 1934, pursuant to the terms of the Private Securities…
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Spoliation (Civil) vs. Missing Evidence/Consciousness of Guilt (Criminal) — Criminal Defendant Need Not Show Bad Faith to Get Missing Evidence Instruction in Maryland

From Cost v. State, 417 Md. 360, 10 A.3d 184 (Ct. App. 2010): Maryland recognizes some form of jury instructions regarding missing or destroyed evidence in both civil and the criminal contexts. In the civil context, we give a jury instruction for the "spoliation of evidence" where a party has destroyed or failed to produce evidence. < ...
From Cost v. State, 417 Md. 360, 10 A.3d 184 (Ct. App. 2010): Maryland recognizes some form of jury instructions regarding missing or destroyed evidence in both civil and the criminal contexts. In the civil context, we give a jury…
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Potentially Serious Exposure of Redacted Confidential Information via ECF

Don Cowan of Raleigh, North Carolina, has identified a confidentiality glitch in the federal electronic case filing system. If a non-party files a motion (e.g., to quash a subpoena or to intervene) and thereby becomes a party for ECF purposes, that person or entity may immediately have access to all material electronically filed in the action, including confiden ...
Don Cowan of Raleigh, North Carolina, has identified a confidentiality glitch in the federal electronic case filing system. If a non-party files a motion (e.g., to quash a subpoena or to intervene) and thereby becomes a party for ECF purposes,…
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Recent Posts

RICO: (1) Assignability of RICO Claims Uncertain — (2) Declining to Decide Whether Indirect-Purchaser Rule Applies to RICO (Given the Directness Requirement, How Much Does It Matter?) — (3) Two Types of Directness of Injury in Proximate Cause Analysis — (4) Proximate Cause As a Court Not Jury Issue in the First Instance

(1) RICO Pattern: Open-Ended Continuity — The Vendetta Exception — Jury Could Reasonably Infer That Scheme Directed at One Person, With Goal of Destroying His Current and Future Business Prospects, Presented A Threat of Continued Racketeering Activity Extending Indefinitely into the Future — Lawsuit’s “Fortuitous Interruption” of Scheme ≠ Lack of Threat of Continuing Racketeering Activity — Acts of Concealment Used to Perpetuate Violations — Multiple Schemes Not Required — Jury Could Judge Defendant’s Credibility in Assessing Threat of Continuing Criminal Activity — (2) RICO Conspiracy — Two Methods of Proof: Agreement to Overall Objective Or to Commit Predicate Acts — Agreement Can Be Inferred from Conduct — Conspirator Needn’t Know All Details, Have Contact with Other Conspirators Or Participate in Every Stage

Experts: “Normally, Courts Are Loath to Outright Dismiss An Expert” (Good Quote) — Experts Are Unhelpful If They Misstate the Law [Note Premise That Testimony on Law Not Precluded Outright] — Rule 37 Sanctions Unwarranted for Unjustifiable Failure to Produce Relevant Document Already in Requester’s Possession

FRAP 38 Sanctions: (1) Pressing Objectively Frivolous Arguments, Multiple Misstatements at Oral Argument and Failure to Address What District Judge Said Warrant Award against Appellants’ Counsel (Only) — (2) “General Award” of $5,000 Warranted Where Appellee Failed to Sufficiently Document Its Fees and Expenses [Goodyear v. Haegar Issue]]

RICO: Capital Call Investment Process Increasing Equity of Those Responding to Call at Expense of Those Not Responding ≠ Collection of An Unlawful Debt

RICO [And Constitutional] Standing: Concrete Injury Requirement Not Satisfied by Alleged Intangible Injuries of Intrusion Upon Seclusion, Confusion And Emotional Distress, Public Disclosure of Private Facts, Deterred Speech On Nondefamatory Matters, Violation Of First Amendment Rights, And Compulsion

Rule 37(b) Sanctions: Striking of Answer, Default Judgment, Civil Contempt and Piercing Corporate Veil for Deliberate Disregard of Multiple Orders to Produce — Finding of Deliberate Disregard of Court Order Is Factual, Triggering Clear Error Review — Discretion Narrows When Default Sanction Involved — Fourth Circuit Factors for Rule 37 Default Sanction Are Different Than Those for Inherent Power Dismissal Sanction — Continued Defiance of Court Orders And Millions in Unpaid Judgments And Tax Liens Render Lesser Sanctions Futile

RICO: No Causation for Company Harmed by Governmental Customers Shunning It After Employee Publishes Book Admitting He Bribed Governmental Officials — Harm Too Indirect, Not from Bribery (Predicate Act) But from Customers’ Decisions to Shun and Publication of Book (Both Lawful) — Customers Injured by Bribery of Their Officials Are More Direct Plaintiffs

FRAP 38 Sanctions for Frivolous Opposition to Arbitration

Extrinsic Fraud Exception to Rooker-Feldman — Where Defendants’ Perjury, False Evidence, Flawed Legal Arguments Prevented Plaintiffs from Presenting Their Claim in State Court

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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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