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

That Continued Prosecution of Claim Would Cause Counsel to Violate Rule 11 = Grounds for Withdrawal

From Acolatse v. Astrue, 2011 U.S. Dist. LEXIS 4835 (N.D. Cal. Jan. 12, 2011): Kalagian's claim that continuing to pursue this matter on behalf of Acolatse may subject him to sanctions under Rule 11 of the Federal Rules of Civil Procedure qualifies as a permissible reason for withdrawal. See e.g., Collins v. Astrue, No. 1:08-CV-00 ...
From Acolatse v. Astrue, 2011 U.S. Dist. LEXIS 4835 (N.D. Cal. Jan. 12, 2011): Kalagian’s claim that continuing to pursue this matter on behalf of Acolatse may subject him to sanctions under Rule 11 of the Federal Rules of Civil…
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RICO — Successor Entities Are Insufficiently Distinct to Comprise an Enterprise

From Leisher v. Wachovia Mortgage, Inc., 2011 U.S. Dist. LEXIS 3037 (S.D. Cal. Jan. 12, 2011): The moving Defendants contend that the RICO claim should be dismissed on the basis that it is inadequately pled. "To state a claim under RICO, 18 U.S.C. § 1962(c), a plaintiff must demonstrate: (1) the conduct; (2) of an enterprise; ...
From Leisher v. Wachovia Mortgage, Inc., 2011 U.S. Dist. LEXIS 3037 (S.D. Cal. Jan. 12, 2011): The moving Defendants contend that the RICO claim should be dismissed on the basis that it is inadequately pled. “To state a claim under…
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Reconsideration Motions — Second Circuit Standards

From Bank of New York v. Bell, 2011 U.S. Dist. LEXIS 3850 (D. Conn. Jan. 14, 2011): The standard for granting motions for reconsideration is strict; motions for reconsideration "will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked — matters, in other words, that might ...
From Bank of New York v. Bell, 2011 U.S. Dist. LEXIS 3850 (D. Conn. Jan. 14, 2011): The standard for granting motions for reconsideration is strict; motions for reconsideration “will generally be denied unless the moving party can point to…
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Existence of Contract Compelling Arbitration Is for Court to Decide — Party Consistently Opposing Arbitration Does Not Waive Right to Judicial Determination by Seeking Arbitral Resolution of Same Question, Too

From Dedon GmbH and Dedon Inc. v. Janus et Cie, 2011 U.S. App. LEXIS 262 (2d Cir. Jan. 6, 2011): A. Dispute Involving the Existence of the Contract *** The Supreme Court recently reiterated that "[a]rbitration is strictly a matter of consent and thus 'is a way to resolve those disputes--but only those disputes--that the ...
From Dedon GmbH and Dedon Inc. v. Janus et Cie, 2011 U.S. App. LEXIS 262 (2d Cir. Jan. 6, 2011): A. Dispute Involving the Existence of the Contract *** The Supreme Court recently reiterated that “[a]rbitration is strictly a matter…
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Experts — A Different Standard May Be Applied to Guns for Hire

From Edmons v. Home Depot, USA, Inc., 2011 U.S. Dist. LEXIS 3811 (D. Or. Jan. 14, 2011): [T]here is a presumption that where an expert's report is prepared for litigation, "the party proffering it must come forward with other objective, verifiable evidence that the testimony is based on 'scientifically valid principles.'" [Daubert v. ...
From Edmons v. Home Depot, USA, Inc., 2011 U.S. Dist. LEXIS 3811 (D. Or. Jan. 14, 2011): [T]here is a presumption that where an expert’s report is prepared for litigation, “the party proffering it must come forward with other objective,…
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Admissibility of Emails Retrieved without Permission from Another’s Computer Is Governed by Federal Stored Communications Act, Not Wiretap Act — Exclusion Not Mandated by SCA

From State v. Poling, 160 Ohio Misc. 2d 84, 2010 Ohio 542,; 2010 Ohio Misc. LEXIS 408 (Municipal Cort, Hocking County 2010): The defendant is charged with a count of violating a *** civil protection order that was obtained in the Common Pleas Court of Hocking County by Jana Kaiser. The order prohibited the defendant from having contact wi ...
From State v. Poling, 160 Ohio Misc. 2d 84, 2010 Ohio 542,; 2010 Ohio Misc. LEXIS 408 (Municipal Cort, Hocking County 2010): The defendant is charged with a count of violating a *** civil protection order that was obtained in…
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Expert Testimony Need Not be “Complicated,” Just Helpful — “Basic Math” Damages Testimony Admissible under 702 — Alternatively, under 1006 as Summary

From WWP, Inc. v. Wounded Warriors Family Support, Inc., 2011 U.S. App. LEXIS 579 (8th Cir. Jan. 12, 2011): In a motion in limine, WWFS asked the district court to bar Kirchner from testifying at trial. WWFS argued Kirchner's testimony did "not meet the helpful requirement of Fed. R. Evid. 702 and Daubert [v. Merrell Dow Pharms ...
From WWP, Inc. v. Wounded Warriors Family Support, Inc., 2011 U.S. App. LEXIS 579 (8th Cir. Jan. 12, 2011): In a motion in limine, WWFS asked the district court to bar Kirchner from testifying at trial. WWFS argued Kirchner’s testimony…
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Spoliation — Adverse-Inference Standards — Sixth Circuit

From Alexander v. Del Monte Corp., 2010 U.S. Dist. LEXIS 139465 (E.D. Mich. Jan. 11, 2011): An adverse inference instruction is appropriate where a party knew that the evidence was relevant to some issue at trial and his culpable conduct resulted in its destruction. Beaven v. U.S. Dep't of Justice, 622 F.3d 540, 553 (6th Cir. 201 ...
From Alexander v. Del Monte Corp., 2010 U.S. Dist. LEXIS 139465 (E.D. Mich. Jan. 11, 2011): An adverse inference instruction is appropriate where a party knew that the evidence was relevant to some issue at trial and his culpable conduct…
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Two-Step Approach to Ascertain Compliance with Rule 11: First, Assess Plausibility; If Plausibility Is Wanting, Second, Gauge the Reasonableness of Pre-Assertion Inquiry

From Owensby v. Estate of Phillips, 2010 N.C. App. LEXIS 2302 (N.C. App. Dec. 7, 2010) (decided under the North Carolina equivalent of Fed.R.Civ.P. 11): The Supreme Court has adopted a "two-part analysis" for use in determining the legal sufficiency of a complaint, under which the trial court "looks first to the facial plausibility of th ...
From Owensby v. Estate of Phillips, 2010 N.C. App. LEXIS 2302 (N.C. App. Dec. 7, 2010) (decided under the North Carolina equivalent of Fed.R.Civ.P. 11): The Supreme Court has adopted a “two-part analysis” for use in determining the legal sufficiency…
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Recent Posts

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)

FRAP 38 Sanctions Imposed Due to the “Striking Legal Emptiness” of Brief/Appeal, “A Legal Nothingburger” — Bad Faith Not Required: An Appeal “May Also Be Frivolous If It Is Filed Out Of Sheer Obstinacy” (Good Quotes)

RICO: Hobbs Act does not apply when the alleged extortion is meant to benefit the state

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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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