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

Statutes of Limitations Are Strictly Construed Not to Bar Government

From United States v. Rebelo, 394 Fed. Appx. 850 (3d Cir. 2010): "[S]tatutes of limitation sought to be applied to bar rights of the Government, must receive a strict construction in favor of the Government." Badaracco v. Comm'r, 464 U.S. 386, 391, 104 S. Ct. 756, 78 L. Ed. 2d 549 (1984) (quotation omitted); accord SEC v. Mohn, 465 F.3 ...
From United States v. Rebelo, 394 Fed. Appx. 850 (3d Cir. 2010): “[S]tatutes of limitation sought to be applied to bar rights of the Government, must receive a strict construction in favor of the Government.” Badaracco v. Comm’r, 464 U.S.…
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Assignee Standing — Constitutional Standing

From Perkumpulan Inv. Crisis Center v. Regal Fin. Bancorp, 2011 U.S. Dist. LEXIS 16132 (W.D. Wash. Feb. 17, 2011): Plaintiff commenced this case after the Supreme Court issued a landmark opinion on the law of assignee standing, Sprint Communications Company v. APCC Services, 554 U.S. 269 (2008). The Supreme Court fundamentally alte ...
From Perkumpulan Inv. Crisis Center v. Regal Fin. Bancorp, 2011 U.S. Dist. LEXIS 16132 (W.D. Wash. Feb. 17, 2011): Plaintiff commenced this case after the Supreme Court issued a landmark opinion on the law of assignee standing, Sprint Communications Company…
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No Requirement of Daubert Hearing If Movant Does Not Present Opposing Expert Evidence — Instruction to Disregard Infirm Expert Evidence Suffices to Avoid Mistrial Absent Undue Prejudice

From United States v. Bachynsky, 2011 U.S. App. LEXIS 3377 (11th Cir. Feb. 18, 2011): There is no requirement that a Daubert hearing always be held. See United States v. Frazier, 387 F.3d 1244, 1264 (11th Cir. 2004); Hansen, 262 F.3d at 1234. As is well known, the trial court's obligation under Federal Rule of Evidence 702 ...
From United States v. Bachynsky, 2011 U.S. App. LEXIS 3377 (11th Cir. Feb. 18, 2011): There is no requirement that a Daubert hearing always be held. See United States v. Frazier, 387 F.3d 1244, 1264 (11th Cir. 2004); Hansen, 262…
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Sanctions Motion that Requires Reference to Dismissal Motion for Details of Frivolousness Fails Specificity Requirement of Rule 11 — At Least in the Absence of Explicit Incorporation by Reference

From Miller v. Saint Felix, 2011 U.S. App. LEXIS 2617 (11th Cir. Feb. 10, 2011) (decided under Bankruptcy Rule 9011, which is substantially identical to Federal Rule of Civil Procedure 11): In its entirety, the sanctions motion read as follows: 1. The factual and legal assertions set forth in the Plaintiff's compl ...
From Miller v. Saint Felix, 2011 U.S. App. LEXIS 2617 (11th Cir. Feb. 10, 2011) (decided under Bankruptcy Rule 9011, which is substantially identical to Federal Rule of Civil Procedure 11): In its entirety, the sanctions motion read as follows:…
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Psychotherapist-Patient Privilege Protects Communications with Unlicensed Counselor at Sex Abuse Clinic Who Works under the Supervision of a Licensed Social Worker

From Richardson v. Sexual Assault Spouse Abuse Resource Center, Inc., 2011 U.S. Dist. LEXIS 12822 (D. Md. Feb. 8, 2011): This Memorandum and Order addresses the claims of privilege that counsel for Defendants Sexual Assault/Spouse Abuse Resource Center, Inc. ("SARC"), Luiza Caiazzo-Nutter, and Stephanie Powers made at the December 7, 201 ...
From Richardson v. Sexual Assault Spouse Abuse Resource Center, Inc., 2011 U.S. Dist. LEXIS 12822 (D. Md. Feb. 8, 2011): This Memorandum and Order addresses the claims of privilege that counsel for Defendants Sexual Assault/Spouse Abuse Resource Center, Inc. (“SARC”),…
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The Finality Requirement for Judicial Review of an Award under the Federal Arbitration Act — 2, Maybe 3, Exceptions

From Pearl Seas Cruises, LLC v. Irving Shipbuilding Inc, 2011 U.S. Dist. LEXIS 12487 (D. Conn. Feb. 9, 2011): Under the FAA "a district court does not have the power to review an interlocutory ruling by an arbitration panel." Michaels v. Mariforum Shipping, S.A., 624 F.2d 411, 414 (2d Cir. 1980). "The language of the Act is unambiguous: ...
From Pearl Seas Cruises, LLC v. Irving Shipbuilding Inc, 2011 U.S. Dist. LEXIS 12487 (D. Conn. Feb. 9, 2011): Under the FAA “a district court does not have the power to review an interlocutory ruling by an arbitration panel.” Michaels…
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Default Judgment Procedure

From Enobakhare v. Carpoint, LLC, 2010 U.S. Dist. LEXIS 141481 (E.D.N.Y. Jan. 10, 2011): Rule 55(a) of the Federal Rules of Civil Procedure provides: "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter ...
From Enobakhare v. Carpoint, LLC, 2010 U.S. Dist. LEXIS 141481 (E.D.N.Y. Jan. 10, 2011): Rule 55(a) of the Federal Rules of Civil Procedure provides: “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead…
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Duties of 30(b)(6) Witnesses and the Organizations Presenting Them — Trial Counsel Normally Inappropriate 30(b)(6) Witness — Unprepared Witness = Failure to Appear — Witness Cannot Testify Exclusively from Document Prepared by Litigation Counsel

From In re Neurontin Antitrust Litig., 2011 U.S. Dist. LEXIS 6977 (D.N.J. Jan. 24, 2011): Pursuant to Rule 30(b)(6), "a party may take a deposition of an individual who is designated to testify on behalf of a company, corporation or government agency." *** Use of Rule 30(b)(6) witnesses is meant to benefit the discovery process by ...
From In re Neurontin Antitrust Litig., 2011 U.S. Dist. LEXIS 6977 (D.N.J. Jan. 24, 2011): Pursuant to Rule 30(b)(6), “a party may take a deposition of an individual who is designated to testify on behalf of a company, corporation or…
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Request for Admission to Authenticate Website Evidence — Attaching Printouts Not Enough — Responding “Document Speaks for Itself” to RFA “Evasive” — Private Websites Not Self-Authenticating

From Adobe Sys. Inc. v. Christenson, 2011 U.S. Dist. LEXIS 16977 (D. Nev. Feb. 7, 2011): Request No. 163 asks Defendants to admit that "the reviews attached hereto as Exhibit C were posted on "resellerratings.com." Request No. 178 asks Defendants to admit that "the reviews attached hereto as Exhibit D were posted on "Eopinions.com." Acc ...
From Adobe Sys. Inc. v. Christenson, 2011 U.S. Dist. LEXIS 16977 (D. Nev. Feb. 7, 2011): Request No. 163 asks Defendants to admit that “the reviews attached hereto as Exhibit C were posted on “resellerratings.com.” Request No. 178 asks Defendants…
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Refusal to Strike Expert Report Despite Failure to Disclose Compensation at All and Prior Testimony Accurately in Initial, Unsigned Report — OK to Rely on Counsel for Expert’s Case List

From White v. City of Chicago, 2011 U.S. Dist. LEXIS 15722 (N.D. Ill. Feb. 16, 2011): Plaintiff notes that when Defendants submitted the expert reports in this case, they did not disclose the compensation being paid to either doctor. In Plaintiff's view, "the prejudice [from this omission] would be incurable" because "it is simply too ...
From White v. City of Chicago, 2011 U.S. Dist. LEXIS 15722 (N.D. Ill. Feb. 16, 2011): Plaintiff notes that when Defendants submitted the expert reports in this case, they did not disclose the compensation being paid to either doctor. In…
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Recent Posts

Rule 37 Sanctions Properly Denied for Failure to Produce Documents That Were Already in the Requester’s Possession And Were Not Relevant to The Principal Issue in the Lawsuit — Experts/Daubert: Exclusion Appropriate Where Opinion Was Predicated on Erroneous Assumptions of Law

Supreme Court: Obtaining a Preliminary Injunction Does Not Render the Plaintiff a “Prevailing Party” Entitled to Attorney’s Fees — Must Win “Enduring Relief” On The Merits From A Judicial Order — Extraneous Events, Like Legislation, That Preserve The Outcome And Moot The Lawsuit Do Not Turn The Plaintiff into A Prevailing Party (Note, However, That A Defendant Need Not Obtain A Favorable Judgment On The Merits In Order To Be A “Prevailing Party”)

Supreme Court: When A Plaintiff Amends The Complaint To Delete The Federal-Law Claims That Enabled Removal To Federal Court, Leaving Only State-Law Claims, The Federal Court Loses Supplemental Jurisdiction, And The Case Must Be Remanded To State Court

Supreme Court: A Rule 41(a) Voluntary Dismissal Without Prejudice = A Final Proceeding Within Rule 60(b) — Advisory Committee Notes Are “A Reliable Source Of Insight Into The Meaning Of A Rule” — Prior to Dismissal or Entry of Judgment, A District Court May Always Rehear and Reconsider Prior Rulings

Rule 37(c)(1) Sanctions — Exclusion of Untimely Expert Report — Burden Is On Noncompliant Party to Prove Harmlessness — Court Need Not Hold Hearing If Noncompliant Party Fails to Argue Harmlessness, Even When Exclusion Is Tantamount to Dismissal

RICO: (1) Continuity: 4th Circuit Factors — (2) 4th Circuit Reserves RICO Liability for Unlawful Activities That Pose A Special Threat to Social Well-Being — (3) For Purposes of Determining Closed-Ended Continuity, Even Time-Barred Conduct Considered — (4) No Open-Ended Continuity If Racketeering Activity Has Built-In Ending Point — (5) Unlike General Federal Conspiracy, RICO Conspiracy Doesn’t Require Each Defendant to Perform an Overt Act in Furtherance of the Conspiracy

Whether Party Waived Arbitration by Litigating Is a Question for the Court, Not the Arbitrator

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

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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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