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

Criminal Trial Delay of 8 Months or More Presumptively Prejudicial to Speedy Trial Right — Absence of Multiple Defendants and Complex Procedural History Affects Weight of Presumption

From United States v. Crawford, 2010 U.S. Dist. LEXIS 97538 (E.D. Mich. Sept. 17, 2010): "A delay approaching one year is presumptively prejudicial." United States v. Robinson, 455 F.3d 602, 607 (6th Cir. 2006) (citing Doggett 505 U.S. at 652 n. 1). Further, the Sixth Circuit has noted, "there seems general agreement that ...
From United States v. Crawford, 2010 U.S. Dist. LEXIS 97538 (E.D. Mich. Sept. 17, 2010): “A delay approaching one year is presumptively prejudicial.” United States v. Robinson, 455 F.3d 602, 607 (6th Cir. 2006) (citing Doggett 505 U.S. at 652…
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No Corporate Liability under Alien Tort Claims Act

From Kiobel v. Royal Dutch Petroleum Co., 2010 U.S. App. LEXIS 19382 (2d Cir. Sept. 17, 2010): Once again we consider a case brought under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, a jurisdictional provision unlike any other in American law and of a kind apparently unknown to any other legal system in the world. Passed by the fi ...
From Kiobel v. Royal Dutch Petroleum Co., 2010 U.S. App. LEXIS 19382 (2d Cir. Sept. 17, 2010): Once again we consider a case brought under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, a jurisdictional provision unlike any other…
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First Circuit Spoliation Standards

From Booker v. Mass. Dep’t of Public Health, 2010 U.S. App. LEXIS 14510 (1st Cir. July 15, 2010): Where a proper evidentiary foundation has been laid, "a trier of fact may (but need not) infer from a party's obliteration of a document relevant to a litigated issue that the contents of the document were unfavorable to that party." T ...
From Booker v. Mass. Dep’t of Public Health, 2010 U.S. App. LEXIS 14510 (1st Cir. July 15, 2010): Where a proper evidentiary foundation has been laid, “a trier of fact may (but need not) infer from a party’s obliteration of…
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Inherent Power Limited by Statute Providing Exclusive Remedy for Violation of Injunction

From Kovacs v. United States, 2010 U.S. App. LEXIS 15615 (7th Cir. July 29, 2010): Kovacs, a taxpayer, filed suit against Defendant-Appellee United States of America seeking to recover damages resulting from the Internal Revenue Service's ("IRS") alleged violation of the discharge injunction provided by Section 524 of the Bankruptcy Code, ...
From Kovacs v. United States, 2010 U.S. App. LEXIS 15615 (7th Cir. July 29, 2010): Kovacs, a taxpayer, filed suit against Defendant-Appellee United States of America seeking to recover damages resulting from the Internal Revenue Service’s (“IRS”) alleged violation of…
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Limitations of Attorneys’ Eyes’ Only Protective Orders

From Schiller v. City of N.Y., 607 F.3d 923 (2d Cir. 2010), explaining why a protective order with attorneys’-eyes’-only protection was an inadequate safeguard to protect intelligence reports (“Field Reports”) compiled by the NYPD: A. Disclosure on an "Attorneys' Eyes Only" Basis Is Inadequate The disclosure of co ...
From Schiller v. City of N.Y., 607 F.3d 923 (2d Cir. 2010), explaining why a protective order with attorneys’-eyes’-only protection was an inadequate safeguard to protect intelligence reports (“Field Reports”) compiled by the NYPD: A. Disclosure on an “Attorneys’ Eyes…
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Document Created by Auditor Containing Legal Advice Protected by Work Product Even Though Prepared for Audit Purposes (Circuit Split) — Disclosure of Work Product to Auditor ≠ Waiver (Caselaw Split)

United States v. Deloitte LLP, 2010 U.S. App. LEXIS 13226 (D.C. Cir. June 29, 2010) creates at least two cert-worthy issues. Its holding that an auditor-created document, prepared for purposes of determining appropriate reserves based on legal advice of the audit client, is entitled to work product protection is in conflict with the First Circuit’s decisio ...
United States v. Deloitte LLP, 2010 U.S. App. LEXIS 13226 (D.C. Cir. June 29, 2010) creates at least two cert-worthy issues. Its holding that an auditor-created document, prepared for purposes of determining appropriate reserves based on legal advice of the…
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Spoliation of Contract Irrelevant Once Plaintiff Has Waived the Contract — Waiver Via Position Taken in Divorce Proceedings — Negligent Spoliation under Illinois Law

From Millar v. Lakin Law Firm PC, 2010 U.S. Dist. LEXIS 60057 (S.D. Ill. June 17, 2010): Millar, an attorney licensed in the states of Illinois and Missouri, began working for Defendant Lakin Law Firm PC ... in May 2000. On or about January 15, 2004, Millar met with Bradley Lakin..., the managing partner of the firm, and Steven Schweiz ...
From Millar v. Lakin Law Firm PC, 2010 U.S. Dist. LEXIS 60057 (S.D. Ill. June 17, 2010): Millar, an attorney licensed in the states of Illinois and Missouri, began working for Defendant Lakin Law Firm PC … in May 2000.…
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Arbitration Sanctions — Arbitration Panel Is Empowered to Award Attorneys’ Fees for Bad Faith Litigation Abuse

From First Auto. Serv. Corp. v. First Colonial Ins. Co., 2010 U.S. Dist. LEXIS 66974 (M.D. Fla. June 16, 2010): In the Final Award As To Attorneys' Fees And Costs dated September 26, 2009..., the panel awarded Northbrook $ 458,430.42 in attorneys' fees, plus $ 63,380.80 in costs (reflecting plaintiffs'/claimants' share of the unpaid stat ...
From First Auto. Serv. Corp. v. First Colonial Ins. Co., 2010 U.S. Dist. LEXIS 66974 (M.D. Fla. June 16, 2010): In the Final Award As To Attorneys’ Fees And Costs dated September 26, 2009…, the panel awarded Northbrook $ 458,430.42…
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Chevron vs. Skidmore Deference

From Taproot Administrative Servs. v. Comm’r of Internal Revenue, 133 T.C. 202, 2009 U.S. Tax Ct. LEXIS 29, 133 T.C. No. 9 (U.S. Tax Court Sept. 29, 2009): In United States v. Mead Corp., 533 U.S. 218, 121 S. Ct. 2164, 150 L. Ed. 2d 292 (2001), the Supreme Court recognized that there are various types of agency pronouncements tha ...
From Taproot Administrative Servs. v. Comm’r of Internal Revenue, 133 T.C. 202, 2009 U.S. Tax Ct. LEXIS 29, 133 T.C. No. 9 (U.S. Tax Court Sept. 29, 2009): In United States v. Mead Corp., 533 U.S. 218, 121 S. Ct.…
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RICO Statute of Limitations — Notice of Injury vs. Fraudulent Concealment — Disregard of Prior Order as Tolling Statute

From Pecot v. S.F. Deputy Sheriff’s Ass’n, 2009 U.S. Dist. LEXIS 21710 (N.D. Cal. Mar. 6, 2009): Civil RICO claims are subject to a four-year statute of limitations. Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 156 (1987). "The limitations period for civil RICO actions begins to run when a plaintiff know ...
From Pecot v. S.F. Deputy Sheriff’s Ass’n, 2009 U.S. Dist. LEXIS 21710 (N.D. Cal. Mar. 6, 2009): Civil RICO claims are subject to a four-year statute of limitations. Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 156…
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Recent Posts

RICO Causation: Parents of Children with Disabilities Deprived In-Person Education and Services during the Pandemic Were Not Causally Injured by Teachers’ False Assurances to Federal Authorities That IDEA-Complaint Policies Were in Place, Which Caused Funds to Issue But Not to the Benefit of the Disabled Children — Damages Too Indirect — Proper Plaintiff Is U.S. Government — Private Injunctive Relief Under RICO Uncertain in Third Circuit

Sanctions: Rule 37(b)(2) Dismissal — Sixth Circuit Factors

Inherent Power Sanctions — Extrajudicial Misconduct: Sanctions Power Extends to Conduct Intended to Sabotage Court’s Ability to Adjudicate the Case Before It, Here, By Commencing State Court Actions Seeking to Enjoin the Federal Plaintiffs from Proceeding with Their Federal Litigation — Sanctions Fee Awards: The Factors Used For Calculating A Fee Award To A Prevailing Party Do Not Govern — Under Goodyear, the Relevant Inquiry Is Whether There Is A Sufficient Causal Link Between The Sanctioned Misconduct And The Fees Awarded

RICO: Members of Association-in-Fact Enterprise Must Act with a Common Purpose—Mere Allegation That Various Defendants Agreed at Different Times to Engage in Various Fraudulent Schemes Does Not Plausibly Support the Essential Inference, That They Acted with s Sufficiently Common Purpose

RICO Causation: (1) State’s Misrepresentation to Federal Government That It Was Providing Plaintiffs with Mandated Special Education Did Not Cause Plaintiffs’ Injury Because The Failure to Provide The Education Was Not Caused by the Fraud on the Federal Government — (2) The Three Factors for Assessing RICO Causation — (3) Limits of the Second Circuit’s Decision in Alix v. McKinsey That Causation Can Be Established Where A Fraud On The Judiciary “Or Other Governmental Entity” Resulted In A Resource Going To Someone Less Deserving

Rule 41(b): Five Factors to Be Weighed in Deciding Whether Dismissal Is Appropriate (Second Circuit) — Is A Finding of Bad Faith or Fault Required if Dismissal Is Without Prejudice? — Undecided If Truly Without Prejudice But It Is Required If the Without Prejudice Dismissal Will Act as a Dismissal on the Merits (Here, Because of the Statute of Limitations) — Failure To Consider A Lesser Sanction Than Dismissal Is Generally An Abuse Of Discretion

Spoliation Sanctions/Mootness: Stipulation Resolving “All Pending Discovery Disputes,” Which Are Enumerated, Does Not Moot Subsequent Sanctions Motion for ESI Spoliation — Postjudgment Sanctions Order Is Appealable When District Court Has Finally Disposed of Both Liability and Amount

Rule 37 Default Judgment Sanction: (1) Default Judgment Appropriate Only As a Last Resort, When Less Drastic Sanctions Would Not Ensure Compliance with the Court’s Orders — (2) Default Judgment Sanction Requires Willful or Bad Faith Failure to Obey Discovery Order — (3) Fugitive Defendant’s Failure to Appear at Court-Ordered, Remote Deposition Despite Court Warning That Sanctions Could Follow Disobedience Warrants Default Judgment — (4) District Court Afforded Wide Discretion in Interpreting Its Own Orders — (5) Filing a Notice of Appeal from a Non-Appealable Order (Here, a Discovery Order) Does Not Deprive the District Court of Jurisdiction over the Case

RICO and Injunctions: (1) State Court Actions Designed to Perpetuate and Monetize a RICO Violation Are Enjoinable under RICO, Even Though They Are Not Themselves Alleged to Be Predicate Acts [Note: Noerr Pennington Applies in RICO Actions] — (2) Although Civil RICO’s Text and Legislative History Fail to Reveal Any Intent to Override the Provisions of the Federal Arbitration Act, Arbitrations Are Enjoinable Under the “Effective Vindication” Doctrine Where They Operate As a Prospective Waiver of a Party’s Right to Pursue Statutory RICO Remedies — (3) Arbitration Findings May Be Given Collateral Estoppel Effect in a Civil RICO Action — (4) Injunction of Non-Corrupt State Court Litigations That Furthers a RICO Violation Are Enjoinable Under the Anti-Injunction Act’s “Expressly Authorized” Exception — (5) “The Irreparable Harm Requirement Is The Single Most Important Prerequisite For The Issuance Of A Preliminary Injunction” (Good Quote) — (6) When Injunction Is Based on “Serious Questions on the Merits” Rather Than “Likelihood of Success,” Court May Rely on Unverified Pleadings and Attached Exhibits to Assess the Merits, Unless the Opponent Has Raised Substantial Questions (Here, the Opponent Failed to Request an Evidentiary Hearing) — (7) Whether Amended Pleading Moots An Appeal Turns on Whether It Materially Changes the Substantive Basis for the Appeal — (8) Meaning of “In That” (“Used To Introduce A Statement That Explains Or Gives More Specific Information” About A Prior Statement)

RICO: Fraudulent Concealment Must Prevent Discovery of the Injury to Toll Statute of Limitations

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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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