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

Mandamus Granted to Reverse Order Finding Blanket, Subject Matter Waiver of Attorney-Client Privilege and Work Product — Mohawk Supports Mandamus (i) by Foreclosing Appeal and (ii) Because Blanket Waiver Order Is “Particularly Injurious”

From Hernandez v. Tanninen, 2010 U.S. App. LEXIS 9681 (9th Cir. May 12, 2010): Hernandez was initially represented by Ferguson. During their initial meeting, Hernandez told Ferguson that Tanninen witnessed the discrimination and would corroborate Hernandez's story. In the course of investigating Hernandez's claims, Ferguson had a series ...
From Hernandez v. Tanninen, 2010 U.S. App. LEXIS 9681 (9th Cir. May 12, 2010): Hernandez was initially represented by Ferguson. During their initial meeting, Hernandez told Ferguson that Tanninen witnessed the discrimination and would corroborate Hernandez’s story. In the course…
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RICO — Foreseeability, Alone, Insufficient to State Causation After Hemi Group

From Couch v. Cate, 2010 U.S. App. LEXIS 9956 (9th Cir. May 14, 2010)(unpublished): Officers Couch, Jimenez, and Torres, all corrections officers at the California Department of Corrections and Rehabilitation ("CDCR"), appeal from the district court's Rule 12(b)(6) dismissal of their two causes of action under 42 U.S.C. § 1983 and their ...
From Couch v. Cate, 2010 U.S. App. LEXIS 9956 (9th Cir. May 14, 2010)(unpublished): Officers Couch, Jimenez, and Torres, all corrections officers at the California Department of Corrections and Rehabilitation (“CDCR”), appeal from the district court’s Rule 12(b)(6) dismissal of…
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Legal Standards Governing the Creation of Private Rights of Action by Statute

From Logan v. U.S. Bank N.A., 2010 U.S. Dist. LEXIS 46314 (C.D. Cal. April 12, 2010): A statute explicitly creates a private right of action when the statute contains language that defines a cause of action. *** Statutes that expressly provide for a private right of action identify the person(s) able to bring suit, those that are potentia ...
From Logan v. U.S. Bank N.A., 2010 U.S. Dist. LEXIS 46314 (C.D. Cal. April 12, 2010): A statute explicitly creates a private right of action when the statute contains language that defines a cause of action. *** Statutes that expressly…
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Legal Principles of Claim Construction

From Leader Techs., Inc. v. Facebook, Inc., 2010 U.S. Dist. LEXIS 21100 (D. Del. Mar. 9, 2010): Claim construction is a question of law. Markman v. Westview Instruments, Inc., 52 F.3d 967, 977-78 (Fed. Cir. 1995), aff'd, 517 U.S. 370, 388-90, 116 S. Ct. 1384, 134 L. Ed. 2d 577 (1996). When construing the claims of a patent ...
From Leader Techs., Inc. v. Facebook, Inc., 2010 U.S. Dist. LEXIS 21100 (D. Del. Mar. 9, 2010): Claim construction is a question of law. Markman v. Westview Instruments, Inc., 52 F.3d 967, 977-78 (Fed. Cir. 1995), aff’d, 517 U.S. 370,…
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If Expert Evidence Is Critical to Class Certification, Court Must Perform Full Daubert Analysis Before Ruling on Certification

From Am. Honda Motor Co. v. Allen, 600 F.3d 813 (7th Cir. 2010): We hold that when an expert's report or testimony is critical to class certification, as it is here, ... a district court must conclusively rule on any challenge to the expert's qualifications or submissions prior to ruling on a class certification motion. That is, the dist ...
From Am. Honda Motor Co. v. Allen, 600 F.3d 813 (7th Cir. 2010): We hold that when an expert’s report or testimony is critical to class certification, as it is here, … a district court must conclusively rule on any…
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Recall of Appellate Mandate Is Extraordinary Remedy Reserved for Matters of Last Resort, Requiring Grave Unforeseen Contingency, and Unwarranted Where Other Avenues to Raise Intervening Supreme Court Decision Exist

From Kashner Davidson Securities Corp. v. Mscisz, 601 F.3d 19 (1st Cir. 2010): Kashner Davidson argues that a recent Supreme Court decision, Hall Street Assocs. v. Mattel, Inc., 552 U.S. 576, 128 S. Ct. 1396, 170 L. Ed. 2d 254 (2008), undermines our earlier mandate in this case. In Hall Street, the Supreme Court held that ...
From Kashner Davidson Securities Corp. v. Mscisz, 601 F.3d 19 (1st Cir. 2010): Kashner Davidson argues that a recent Supreme Court decision, Hall Street Assocs. v. Mattel, Inc., 552 U.S. 576, 128 S. Ct. 1396, 170 L. Ed. 2d 254…
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Rooker-Feldman Does Not Apply to the Decision of a State Administrative Agency

From Gifford v. Meda, 2010 U.S. Dist. LEXIS 45322 (E.D. Mich. May 10, 2010): Under the Rooker-Feldman doctrine, "lower federal courts are precluded from exercising appellate jurisdiction over final state-court judgments." Lance v. Dennis, 546 U.S. 459, 463 (2006). The Supreme Court in Lance, and in its prior term in ...
From Gifford v. Meda, 2010 U.S. Dist. LEXIS 45322 (E.D. Mich. May 10, 2010): Under the Rooker-Feldman doctrine, “lower federal courts are precluded from exercising appellate jurisdiction over final state-court judgments.” Lance v. Dennis, 546 U.S. 459, 463 (2006). The…
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A Preservation Rule for the Federal Rules of Civil Procedure

Download associated file: Elements of a Preservation Rule.pdf  The Advisory Committee on the Federal Rules of Civil Procedure and the Standing Committee on Rules of Practice and Procedure sponsored the Duke Conference on Civil Litigation on Monday and Tuesday of this wee ...
Download associated file: Elements of a Preservation Rule.pdf  The Advisory Committee on the Federal Rules of Civil Procedure and the Standing Committee on Rules of Practice and Procedure sponsored the Duke Conference on Civil Litigation on Monday and Tuesday…
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Only Individual Lawyers, Not Law Firms, Subject to Sanction under 28 U.S.C. § 1927

From BDT Prods., Inc. v. Lexmark Int’l, Inc., 2010 U.S. App. LEXIS 8203 (6th Cir. April 21, 2010): Meisenheimer's first argument is that the district court erred to the extent that it imposed sanctions under 28 U.S.C. § 1927, as § 1927 permits the imposition of sanctions against individual lawyers, but not against law firms. ...
From BDT Prods., Inc. v. Lexmark Int’l, Inc., 2010 U.S. App. LEXIS 8203 (6th Cir. April 21, 2010): Meisenheimer’s first argument is that the district court erred to the extent that it imposed sanctions under 28 U.S.C. § 1927, as…
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Printout of Official Record from Government Website Self-Authenticating within Fed.R.Evid. 902(5)

From Weingartner Lumber & Supply Co. v. Kadant Composites, LLC, 2010 U.S. Dist. LEXIS 24918 (E.D. Ky. Mar. 10, 2010): In this internet, tech-savvy age, accessing official records from government websites is commonplace. Publicly maintained records downloaded from a government website would likely be self-authenticating under Fed. R. Evid. ...
From Weingartner Lumber & Supply Co. v. Kadant Composites, LLC, 2010 U.S. Dist. LEXIS 24918 (E.D. Ky. Mar. 10, 2010): In this internet, tech-savvy age, accessing official records from government websites is commonplace. Publicly maintained records downloaded from a government…
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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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