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

§ 1404(a) Standards — Second Circuit

From Whitney Lane Holdings, LLC v. Sgambettera & Assocs., PC, 2010 U.S. Dist. LEXIS 114467 (E.D.N.Y. Sept. 8, 2010): To transfer venue under 28 U.S.C. § 1404(a), the Court engages in a two-pronged inquiry. *** First, the court asks whether the action sought to be transferred is one that "might have been brought" in the requested transf ...
From Whitney Lane Holdings, LLC v. Sgambettera & Assocs., PC, 2010 U.S. Dist. LEXIS 114467 (E.D.N.Y. Sept. 8, 2010): To transfer venue under 28 U.S.C. § 1404(a), the Court engages in a two-pronged inquiry. *** First, the court asks whether…
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No Adverse Inference from Assertion of Attorney-Client Privilege

From United States v. St. John, 267 F. App’x 17, 22 (2d Cir. 2008): We also reject defendants' argument that it was improper for Cherry and Raymond to assert the attorney-client privilege outside the presence of the jury on the basis that they were entitled to an adverse inference because of the witnesses' invocation of the privilege. ...
From United States v. St. John, 267 F. App’x 17, 22 (2d Cir. 2008): We also reject defendants’ argument that it was improper for Cherry and Raymond to assert the attorney-client privilege outside the presence of the jury on the…
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Evidentiary Foundation for Introducing English Interpretation of Foreign Language Testimony

From Sunrider Corp. v. Bountiful Biotech Corp., 2010 U.S. Dist. LEXIS 117347 (C.D. Cal. Oct. 8, 2010): "Witness testimony translated from a foreign language must be properly authenticated and any interpretation must be shown to be an accurate translation done by a competent translator." Jack v. Trans World Airlines, Inc., 854 F. ...
From Sunrider Corp. v. Bountiful Biotech Corp., 2010 U.S. Dist. LEXIS 117347 (C.D. Cal. Oct. 8, 2010): “Witness testimony translated from a foreign language must be properly authenticated and any interpretation must be shown to be an accurate translation done…
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Spoliation: Destroying Party Bears Burden of Proving Irrelevance of Documents Destroyed During Discovery — 9th Circuit Standards for Default or Dismissal Sanctions

From Sunrider Corp. v. Bountiful Biotech Corp., 2010 U.S. Dist. LEXIS 117346 (C.D. Cal. Nov. 3, 2010): Perhaps most significantly, Annie Wu's supplementary declaration admitted that as discovery was pending in September 2009, BHTC destroyed documents. *** Annie Wu testified that "non-essential documents were discarded if they were deemed ...
From Sunrider Corp. v. Bountiful Biotech Corp., 2010 U.S. Dist. LEXIS 117346 (C.D. Cal. Nov. 3, 2010): Perhaps most significantly, Annie Wu’s supplementary declaration admitted that as discovery was pending in September 2009, BHTC destroyed documents. *** Annie Wu testified…
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Stay Pending Appeal of Non-Money Judgment: Factors — Novelty of Issue vs. Likelihood of Reversal (Good Quote)

From Adams Offshore, Ltd. v. Con-Dive, LLC, 2010 U.S. Dist. LEXIS 117337 (S.D.Ala. Nov. 3, 2010): I. Stay Pending Appeal. [Intervening Plaintiff] Blake first moves for a stay pending appeal. *** Such stays are governed by Rule 62. "In the case of a non-money judgment, whether a stay is warranted under Rule 62(d) depends upon: ...
From Adams Offshore, Ltd. v. Con-Dive, LLC, 2010 U.S. Dist. LEXIS 117337 (S.D.Ala. Nov. 3, 2010): I. Stay Pending Appeal. [Intervening Plaintiff] Blake first moves for a stay pending appeal. *** Such stays are governed by Rule 62. “In the…
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Fed.R.App.P. 38 and Fed.R.Civ.P. 11 — Request for Sanctions in Appellate Brief Does Not Satisfy Motion Requirements

From Cody v. Palmyra Park Hosp., Inc., 2010 U.S. App. LEXIS 20822 (Oct. 5, 2010): ***Palmyra makes a request for sanctions under Fed.R.Civ.P. 11 and 28 U.S.C. § 1927. Rule 11(b)(3) requires that a party must have knowledge, information or belief that her "factual contentions have evidentiary support or . . . will likely have evidentia ...
From Cody v. Palmyra Park Hosp., Inc., 2010 U.S. App. LEXIS 20822 (Oct. 5, 2010): ***Palmyra makes a request for sanctions under Fed.R.Civ.P. 11 and 28 U.S.C. § 1927. Rule 11(b)(3) requires that a party must have knowledge, information or…
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RICO — PSLRA Bar — Investment in LLC as Part of Tax-Avoidance Strategy = “Investment Contract” Triggering PSLRA Bar

From Affco Invest. 2001 LLC v. Proskauer Rose LLP, 2010 U.S. App. LEXIS 22105 (5th Cir. Oct. 27, 2010): This case involves a sophisticated income tax avoidance strategy in which taxpayers attempted to claim tax losses through a mechanism of offsetting digital options. [Footnote 1] Digital options are option contra ...
From Affco Invest. 2001 LLC v. Proskauer Rose LLP, 2010 U.S. App. LEXIS 22105 (5th Cir. Oct. 27, 2010): This case involves a sophisticated income tax avoidance strategy in which taxpayers attempted to claim tax losses through a mechanism of…
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The Defense of “Impracticability in Commercial Transactions” under Delaware Law (Interposed as a Defense to Loan Repayment Based on the Financial Meltdown)

From Headway Invest. Partners II, LP v. A.M. Todd Group, 2010 U.S. Dist. LEXIS 107178 (W.D. Mich. Oct. 6, 2010): [T]hree parties — Headway Investment Partners, Blue Orion Limited, and AM Todd Group — are the sole members of "Great Spirit Ventures, LLC," a limited liability company organized in Delaware in 2004 for the purpose of acq ...
From Headway Invest. Partners II, LP v. A.M. Todd Group, 2010 U.S. Dist. LEXIS 107178 (W.D. Mich. Oct. 6, 2010): [T]hree parties — Headway Investment Partners, Blue Orion Limited, and AM Todd Group — are the sole members of “Great…
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Breadth of Judicial Immunity from § 1983 Actions

From Green v. Mallia, 2010 U.S. App. LEXIS 22775 (5th Cir. Nov. 1, 2010): The Supreme Court "has consistently adhered to the rule that judges defending against § 1983 actions enjoy absolute immunity from damages liability for acts performed in their judicial capacities." [Footnote 7. Dennis v. Sparks, 449 U.S. 24, 27, 101 S. Ct ...
From Green v. Mallia, 2010 U.S. App. LEXIS 22775 (5th Cir. Nov. 1, 2010): The Supreme Court “has consistently adhered to the rule that judges defending against § 1983 actions enjoy absolute immunity from damages liability for acts performed in…
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Settlement Pending Appeal Moots All Claims Unless Settling Party (Here, Class Representative) Retains a Personal Stake in the Case — Good Quote about Mootness

From Sanford v. Memberworks, Inc., 2010 U.S. App. LEXIS 22601 (9th Cir. Oct. 25, 2010): "Mootness [is] the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)." U.S. Parole Comm'n v. Geraghty, ...
From Sanford v. Memberworks, Inc., 2010 U.S. App. LEXIS 22601 (9th Cir. Oct. 25, 2010): “Mootness [is] the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing)…
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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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