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

Scientific vs. Technical Expert Testimony — Impact on Acceptable Qualifications

From Rose v. Truck Centers, Inc., 2010 U.S. App. LEXIS 16396 (6th Cir. Aug. 6, 2010): In order to qualify as an expert under Rule 702, a witness must establish his or her expertise by reference to "knowledge, skill, experience, training, or education." Fed. R. Evid. 702. Although this requirement is typically treated liberally, a witnes ...
From Rose v. Truck Centers, Inc., 2010 U.S. App. LEXIS 16396 (6th Cir. Aug. 6, 2010): In order to qualify as an expert under Rule 702, a witness must establish his or her expertise by reference to “knowledge, skill, experience,…
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Work Product — Subject Matter Waiver Effected by Issuing Press Release Based on Discussions with Prosecutors That Were Otherwise Protected as Work Product

From E.I. duPont de Nemours & Co. v. Kolon Indus., 2010 U.S. Dist. LEXIS 77075 (E.D. Va. July 30, 2010): ***DuPont alleges that Kolon stole its secret processes and technologies for manufacturing Kevlar, and that Kolon has improved its product line based on this trade secret theft. *** The Court recently issued a Memorandum Opinio ...
From E.I. duPont de Nemours & Co. v. Kolon Indus., 2010 U.S. Dist. LEXIS 77075 (E.D. Va. July 30, 2010): ***DuPont alleges that Kolon stole its secret processes and technologies for manufacturing Kevlar, and that Kolon has improved its product…
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Court May Not Invoke Inherent Power to Sanction Misconduct before Administrative Tribunal

From Children’s Ctr. for Devel. Enrichment v. Machle, 2010 U.S. App. LEXIS 14600 (6th Cir. July 16, 2010): Courtland and Michelle Bishop and their minor disabled son CB brought suit against the private school to which CB had been assigned after the school expelled CB. The district court dismissed the claims, and the Bishops initiated ...
From Children’s Ctr. for Devel. Enrichment v. Machle, 2010 U.S. App. LEXIS 14600 (6th Cir. July 16, 2010): Courtland and Michelle Bishop and their minor disabled son CB brought suit against the private school to which CB had been assigned…
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RICO — Exercising Caution While Affording Liberal Construction

From U.S. Airline Pilots Ass’n, 2010 U.S. App. LEXIS 15781 (4th Cir. July 30, 2010): RICO, the federal claim at issue, "does not cover all instances of wrongdoing. Rather, it is a unique cause of action that is concerned with eradicating organized, long-term, habitual criminal activity." Gamboa v. Velez, 457 F.3d 703, 705 (7t ...
From U.S. Airline Pilots Ass’n, 2010 U.S. App. LEXIS 15781 (4th Cir. July 30, 2010): RICO, the federal claim at issue, “does not cover all instances of wrongdoing. Rather, it is a unique cause of action that is concerned with…
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No Subject Matter Waiver of Work Product Protection by SEC Due to DOJ’s Disclosure of SEC Notes in Criminal Prosecution

From Williams & Connolly LLP v. U.S. Securities and Exchange Commission, 2010 U.S. Dist. LEXIS 78570 (D.D.C. Aug. 4, 2010): FOIA Exemption 5 incorporates the work product doctrine, which shields "documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (includi ...
From Williams & Connolly LLP v. U.S. Securities and Exchange Commission, 2010 U.S. Dist. LEXIS 78570 (D.D.C. Aug. 4, 2010): FOIA Exemption 5 incorporates the work product doctrine, which shields “documents and tangible things that are prepared in anticipation of…
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Fed.R.App.P. 46 — “Conduct Unbecoming a Member of the Bar” — ABA Standards for Imposing Discipline — Recklessness (Good Quote)

From In re Girardi (Franco v. Dow Chem. Co.), 2010 U.S. App. LEXIS 14292 (9th Cir. July 13, 2010): "A member of the court's bar is subject to suspension or disbarment by the court if the member ... is guilty of conduct unbecoming a member of the court's bar." Fed. R. App. P. 46(b)(1)(B); see Gadda v. Ashcroft, 377 F.3d 934, 947 (9 ...
From In re Girardi (Franco v. Dow Chem. Co.), 2010 U.S. App. LEXIS 14292 (9th Cir. July 13, 2010): “A member of the court’s bar is subject to suspension or disbarment by the court if the member … is guilty…
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Who Becomes the Real-Party-in-Interest when a Party Becomes Incompetent? — Roles of State/Federal Law — Rules 17 and 25

From Kuelbs v. Hill, 2010 U.S. App. LEXIS 15757 (8th Cir. July 30, 2010): We first address who became the real party in interest after Kuelbs was declared incompetent. "In a diversity action, state law determines the issue of who is a real party in interest." Jaramillo v. Burkhart, 999 F.2d 1241, 1246 (8th Cir. 1993). W ...
From Kuelbs v. Hill, 2010 U.S. App. LEXIS 15757 (8th Cir. July 30, 2010): We first address who became the real party in interest after Kuelbs was declared incompetent. “In a diversity action, state law determines the issue of who…
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Fed.R.Civ.P. 83 Precludes Striking Brief on Ground It Lacks Tables of Contents and Authorities Required by Local Rule (Nonwillful Violation)

From Hanks v. Shinseki, 2010 U.S. Dist. LEXIS 76660 (N.D. Tex. July 28, 2010): Hanks has moved to strike the defendants' motion, the brief in support thereof, and the appendix in support thereof. As to the defendants' motion and brief, Hanks contends that both should be stricken because the brief is longer than ten pages but does not in ...
From Hanks v. Shinseki, 2010 U.S. Dist. LEXIS 76660 (N.D. Tex. July 28, 2010): Hanks has moved to strike the defendants’ motion, the brief in support thereof, and the appendix in support thereof. As to the defendants’ motion and brief,…
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Standards for Severing Claims into Separate Trials under Federal Rule of Civil Procedure 21

From Securities and Exchange Commission v. Leslie, 2010 U.S. Dist. LEXIS 76826 (N.D. Cal. July 29, 2010): The "determination of a Rule 21(b) motion involves the sound discretion of the trial court . . . ." United States v. Testa, 548 F.2d 847, 856 (9th Cir. 1977). See also Rice v. Sunrise Express, Inc., 209 F.3d 1008, 101 ...
From Securities and Exchange Commission v. Leslie, 2010 U.S. Dist. LEXIS 76826 (N.D. Cal. July 29, 2010): The “determination of a Rule 21(b) motion involves the sound discretion of the trial court . . . .” United States v. Testa,…
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New Article on 2010 Expert Witness Rule Amendments

Download associated file: 2010 Rules Amendment Article.pdf  Linked above is an article analyzing the 2010 Amendments to Federal Rule of Civil Procedure 26 affecting expert discovery and disclosure. These provisions were tweaked after the Advisory Committee received comm ...
Download associated file: 2010 Rules Amendment Article.pdf  Linked above is an article analyzing the 2010 Amendments to Federal Rule of Civil Procedure 26 affecting expert discovery and disclosure. These provisions were tweaked after the Advisory Committee received comments on…
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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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