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

Non-Lawyer Parent May Not Proceed Pro Se for Child, but Sole Beneficiary May Proceed Pro Se for Estate that Has No Creditors

From McCurdy v. Cambridge School Dist. No. 432, 2010 U.S. Dist. LEXIS 119464 (D. Idaho Nov. 8, 2010): 2. Motion to Dismiss for Unauthorized Practice of Law Defendant argues that Mr. McCurdy is engaged in the unauthorized practice of law by bringing claims on behalf of Mrs. McCurdy's Estate in a pro se capacity. This is a ...
From McCurdy v. Cambridge School Dist. No. 432, 2010 U.S. Dist. LEXIS 119464 (D. Idaho Nov. 8, 2010): 2. Motion to Dismiss for Unauthorized Practice of Law Defendant argues that Mr. McCurdy is engaged in the unauthorized practice of law…
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Sanctions — Erroneous Position on Issue of First Impression, without More, Is Not Frivolous — Good Quote

From Komperda v. Hilton Hawaiian Village, LLC, 2010 U.S. Dist. LEXIS 114079 (D. Hawaii Oct. 25, 2010) (state sanctions provision) : A litigant's "erroneous interpretation in a case of first impression should not, without more, lead the court to conclude that the plaintiff's claims are frivolous, unreasonable, or without foundation." ...
From Komperda v. Hilton Hawaiian Village, LLC, 2010 U.S. Dist. LEXIS 114079 (D. Hawaii Oct. 25, 2010) (state sanctions provision) : A litigant’s “erroneous interpretation in a case of first impression should not, without more, lead the court to conclude…
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§ 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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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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