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

Reliance on Fact of Consultation with Counsel ≠ Reliance on Advice of Counsel Nor Effect Waiver — Beneficiary May Not Pierce Privilege of Indenture Trustee under Fiduciary Exception (Garner v. Wolfinbarger) for Substantive Advice

From CFIP Master Fund Ltd v. Citibank N.A., 2010 U.S. Dist. LEXIS 97771 (S.D.N.Y. Sept. 18, 2010): [Footnote 27] Contrary to the Fund's contentions, U.S. Bank is not asserting an "advice of counsel" defense, which would require the waiver of attorney-client privilege, by referring to the fact of its communication with counsel in the c ...
From CFIP Master Fund Ltd v. Citibank N.A., 2010 U.S. Dist. LEXIS 97771 (S.D.N.Y. Sept. 18, 2010): [Footnote 27] Contrary to the Fund’s contentions, U.S. Bank is not asserting an “advice of counsel” defense, which would require the waiver of…
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Sanctions — Reversible Error Not to Consider Lawyer’s Ability to Pay under Rule 37 — Inherent Power vs. Rule-Based Power in Punishing Discovery Abuse

In reversing all but $121,000 of a $2.7 million sanctions award, the Court in Clearvalue, Inc. v. Pearl River Polymers, Inc., 560 F.3d 1291 (Fed. Cir. 2009) held the imposition of joint-and-several liability on counsel to the sanctioned plaintiffs was improper because his ability to pay the award was not considered: [Need to Consider ...
In reversing all but $121,000 of a $2.7 million sanctions award, the Court in Clearvalue, Inc. v. Pearl River Polymers, Inc., 560 F.3d 1291 (Fed. Cir. 2009) held the imposition of joint-and-several liability on counsel to the sanctioned plaintiffs was…
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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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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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