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

Dismissal Standards in New York State Court — CPLR 3211(a)(7) (Failure to State a Claim) and 3211(a)(1) (Documentary Evidence) — Affidavits May Cure Pleading Deficiencies — What Constitutes “Documentary Evidence”

From MBIA Ins. Corp. v Royal Bank of Canada, 28 Misc. 3d 1225A, 2010 N.Y. Misc. LEXIS 3958, 2010 NY Slip Op 51490U (Sup. Ct. Westchester County Aug. 19, 2010): The legal standards to be applied in evaluating a motion to dismiss pursuant to CPLR 3211(a)(7) are well-settled. In determining whether a complaint is sufficient to withsta ...
From MBIA Ins. Corp. v Royal Bank of Canada, 28 Misc. 3d 1225A, 2010 N.Y. Misc. LEXIS 3958, 2010 NY Slip Op 51490U (Sup. Ct. Westchester County Aug. 19, 2010): The legal standards to be applied in evaluating a motion…
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Refusal to Grant Attorneys’ Fees as Inherent Power Sanction Upheld Even Though Intentional Spoliation May Have Been Found by Jury

From Union Pump Co. v. Centrifugal Tech. Inc., 2010 U.S. App. LEXIS 25761 (5th Cir. Dec. 16, 2010): Plaintiff, Union Pump Company, sued three of its former employees after the former employees formed a competing business. Union Pump alleged that the defendants misappropriated its trade secrets and engaged in unfair competition because t ...
From Union Pump Co. v. Centrifugal Tech. Inc., 2010 U.S. App. LEXIS 25761 (5th Cir. Dec. 16, 2010): Plaintiff, Union Pump Company, sued three of its former employees after the former employees formed a competing business. Union Pump alleged that…
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Testimony from Recipient of Email Suffices to Authenticate It, As Does Affidavit

From Read v. Teton Springs Golf & Casting Club, LLC, 2010 U.S. Dist. LEXIS 134621 (D. Idaho Dec. 14, 2010): Exhibit 10 "is a true and correct copy of an email from Aaron Wernli dated March 21, 2006. See McLean Aff., ¶ 13 (Docket No. 448, Att. 1). Plaintiffs argue that Exhibit 10 was (1) sent to, among others, Plaintiff Chris Frye who au ...
From Read v. Teton Springs Golf & Casting Club, LLC, 2010 U.S. Dist. LEXIS 134621 (D. Idaho Dec. 14, 2010): Exhibit 10 “is a true and correct copy of an email from Aaron Wernli dated March 21, 2006. See McLean…
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Duplicative Federal Action May be Dismissed Sua Sponte Pursuant to Rule 41(b)

From Latham Orthopedics Med. Group v. U.S.A. Corp., 2010 U.S. Dist. LEXIS 122370 (C.D. Cal. Nov. 2, 2010): In an earlier-filed case -- Case No. EDCV 10-950-DSF (MAN) (the "950 Action") -- plaintiffs filed a complaint that is essentially identical to the instant Complaint. The 950 Action named the same two plaintiffs (Mueller and Latham) ...
From Latham Orthopedics Med. Group v. U.S.A. Corp., 2010 U.S. Dist. LEXIS 122370 (C.D. Cal. Nov. 2, 2010): In an earlier-filed case — Case No. EDCV 10-950-DSF (MAN) (the “950 Action”) — plaintiffs filed a complaint that is essentially identical…
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Organization May Not Call Its Own 30(b)(6) Witness to Testify at Trial to Matters Outside His/Her Personal Knowledge

From Union Pump Co. v. Centrifugal Tech. Inc., 2010 U.S. App. LEXIS 25761 (5th Cir. Dec. 16, 2010): Federal Rule of Evidence 602 limits the scope of a witness's testimony to matters that are within his or her personal knowledge. Union Pump argues that Bixler [Union Pump’s 30(b)(6) deponent] was permitted to testify to matters that, alt ...
From Union Pump Co. v. Centrifugal Tech. Inc., 2010 U.S. App. LEXIS 25761 (5th Cir. Dec. 16, 2010): Federal Rule of Evidence 602 limits the scope of a witness’s testimony to matters that are within his or her personal knowledge.…
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RICO — If Plaintiff Does Not Rely on Mail Fraud Predicate, Third Party Reliance May Be Essential to Prove Causation

From UFCW Local 1776 v. Eli Lilly & Co., 620 F.3d 121 (2d Cir. 2010) (class certification decision): The putative class of TPPs [third-party payors] alleges that in the course of promoting off-label prescriptions of Zyprexa, Lilly engaged in mail and wire fraud by deliberately misrepresenting the drug's safety and efficacy. Plaintiffs c ...
From UFCW Local 1776 v. Eli Lilly & Co., 620 F.3d 121 (2d Cir. 2010) (class certification decision): The putative class of TPPs [third-party payors] alleges that in the course of promoting off-label prescriptions of Zyprexa, Lilly engaged in mail…
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Attorneys’ Fees under the Federal Arbitration Act for Prevailing over Unsuccessful Attack on Arbitration Award

From Western Tech. Servs. Int’l v. Cauchous Indus., S.A., 2010 U.S. Dist. LEXIS 121269 (N.D. Tex. Nov. 16, 2010): Petitioner Western Technology Services International, Inc. ("Petitioner" or "Westech") filed its Notice of Application and Application to Confirm Arbitration Award on June 4, 2009. Westech and Respondent Cauchos Industriales ...
From Western Tech. Servs. Int’l v. Cauchous Indus., S.A., 2010 U.S. Dist. LEXIS 121269 (N.D. Tex. Nov. 16, 2010): Petitioner Western Technology Services International, Inc. (“Petitioner” or “Westech”) filed its Notice of Application and Application to Confirm Arbitration Award on…
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Weak Position Not Frivolous Where Magistrate Judge Ordered Discovery on It and Appellate Judge Voted for Oral Argument — Forum Non Conveniens in Maritime Cases

From Vesuna v. CSCS Int’l N.V., 2010 U.S. App. LEXIS 25531 (11th Cir. Dec. 13, 2010): Vesuna, a resident of India, sustained a serious back injury while working for Cruise Ship Catering Services ("CSCS") aboard a cruise ship owned by Costa Crociere ("Costa"). Vesuna's employment contract contained the following choice of law provision: ...
From Vesuna v. CSCS Int’l N.V., 2010 U.S. App. LEXIS 25531 (11th Cir. Dec. 13, 2010): Vesuna, a resident of India, sustained a serious back injury while working for Cruise Ship Catering Services (“CSCS”) aboard a cruise ship owned by…
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Statutory Interpretation on Issues of First Impression — Three-Part Test

From Hamdi v. Napolitano, 620 F.3d 615 (6th Cir. 2010): The proper interpretation of the "on behalf of" language in § 1252(g) is a matter of first impression in this circuit (and apparently in all circuits). We review de novo such questions of statutory interpretation, United States v. Parrett, 530 F.3d 422, 429 (6th Cir. 2008 ...
From Hamdi v. Napolitano, 620 F.3d 615 (6th Cir. 2010): The proper interpretation of the “on behalf of” language in § 1252(g) is a matter of first impression in this circuit (and apparently in all circuits). We review de novo…
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Does Postjudgment Interest on an Attorneys’ Fee Award Run from the Date of the Merits Judgment or the Date of the Quantum Judgment? Circuit Split

From Fryer v. ASAP Fire & Safety Corp., 2010 U.S. Dist. LEXIS 132613 (D. Mass. Dec. 15, 2010): In pertinent part, section 1961 reads: Interest shall be allowed on any money judgment in a civil case recovered in a district court . . . Such interest shall be calculated from the date of the entry of the judgment, at ...
From Fryer v. ASAP Fire & Safety Corp., 2010 U.S. Dist. LEXIS 132613 (D. Mass. Dec. 15, 2010): In pertinent part, section 1961 reads: Interest shall be allowed on any money judgment in a civil case recovered in a district…
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Recent Posts

(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

Federal Jurisdiction: Party Can Waive Subject Matter Jurisdiction — While Federal Courts Must Ensure They Do Not Lack Subject Matter Jurisdiction, There Is No Duty to Find and Exercise It

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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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