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

Sanctions — An Argument May be Frivolous Even If It Concerns a Matter of First Impression

From John Richards Homes Building Co. 2009 U.S. Dist. LEXIS 117913 (E.D. Mich. Dec. 17, 2009): It simply cannot be the case that a party who raises an issue of first impression in a jurisdiction is entitled to absolute immunity from sanctions in raising the issue. Such a rule would require that a patently frivolous, yet novel, le ...
From John Richards Homes Building Co. 2009 U.S. Dist. LEXIS 117913 (E.D. Mich. Dec. 17, 2009): It simply cannot be the case that a party who raises an issue of first impression in a jurisdiction is entitled to absolute immunity…
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FOIA — Second Circuit Recognizes Glomar Doctrine, Allowing Agency to Refuse to Confirm or Deny the Existence of Records Where to Do So Would Cause Harm Cognizable under FOIA — In Camera Review Unnecessary If Affidavits Sufficient

From Wilner v. Nat’l Security Agency, 2009 U.S. App. LEXIS 28610 (2d Cir. Dec. 30, 2009): Plaintiffs submitted FOIA requests to the NSA and DOJ seeking records showing whether the government has intercepted plaintiffs' communications relating to the representation of their detainee clients. The NSA and DOJ served and filed so-called
From Wilner v. Nat’l Security Agency, 2009 U.S. App. LEXIS 28610 (2d Cir. Dec. 30, 2009): Plaintiffs submitted FOIA requests to the NSA and DOJ seeking records showing whether the government has intercepted plaintiffs’ communications relating to the representation of…
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RICO — Distinctiveness Requirement of § 1962(c) Held Unsatisfied Where Defendants = Constituents of Enterprise

From Pena v. International Union of Operating Engineers Local 150, 2009 U.S. Dist. LEXIS 62263 (N.D. Ill. July 21, 2009): It is well-established that a RICO "person" must be distinct from the RICO "enterprise." Haroco, Inc. v. American National Bank & Trust Co. of Chicago, 747 F.2d 384, 400 (7th Cir. 1984). RICO prohibits defendan ...
From Pena v. International Union of Operating Engineers Local 150, 2009 U.S. Dist. LEXIS 62263 (N.D. Ill. July 21, 2009): It is well-established that a RICO “person” must be distinct from the RICO “enterprise.” Haroco, Inc. v. American National Bank…
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Where Expert Testimony Depends on Disputed Factual Testimony, Proper Procedure Is to Introduce the Disputed Witness Testimony First and then Frame the Expert Questions as Hypotheticals

From Evans v. Washington Met. Area Transit Auth., 2009 U.S. Dist. LEXIS 117608 (D.D.C. Dec. 16, 2009): WMATA agrees that Mr. Stopper is an expert in accident reconstruction and does not challenge his background, education or experience. Rather, it asserts that Mr. Stopper relied solely upon the two pedestrians whose versions of events could not be phys ...
From Evans v. Washington Met. Area Transit Auth., 2009 U.S. Dist. LEXIS 117608 (D.D.C. Dec. 16, 2009): WMATA agrees that Mr. Stopper is an expert in accident reconstruction and does not challenge his background, education or experience. Rather, it asserts…
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Enforcing Injunction Against Non-Party — Terms of Service Inadequate to Link Website Provider to Poster of Defamatory Statements Sufficiently to Subject Provider to Injunction

From Blockowicz v. Williams, 2009 U.S. Dist. LEXIS 118599 (N.D. Ill. Dec. 21, 2009): The Communications Decency Act ("CDA"), 47 U.S.C. § 230, limits the ability of an aggrieved party to sue an internet website host for defamatory statements posted on its site by third-parties. See 47 U.S.C. § 230(c). Avoiding the CDA's limitati ...
From Blockowicz v. Williams, 2009 U.S. Dist. LEXIS 118599 (N.D. Ill. Dec. 21, 2009): The Communications Decency Act (“CDA”), 47 U.S.C. § 230, limits the ability of an aggrieved party to sue an internet website host for defamatory statements posted…
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The Fiduciary Exception to the Attorney-Client Privilege — History and Circuit Survey

From In re United States, 2009 U.S. App. LEXIS 28598 (Fed. Cir. Dec. 30, 2009): The United States petitions for a writ of mandamus to direct the Court of Federal Claims ("trial court") to vacate its orders requiring the United States to produce documents that it asserts are protected by the attorney-client privilege. Jicarilla Apache Nati ...
From In re United States, 2009 U.S. App. LEXIS 28598 (Fed. Cir. Dec. 30, 2009): The United States petitions for a writ of mandamus to direct the Court of Federal Claims (“trial court”) to vacate its orders requiring the United…
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The Ten Most Important Developments in Federal Civil Practice in the 00s

1. Twiqbal 2. Federal Rule of Evidence 502 3. The War Against Punitive Damages 4. The Eruption of Spoliation (Fewer than 180 state and federal decisions in 1999; more than 600 in 2009) 5. The Accretion of Federal Jurisdiction (E.g., CAFA, Exxon M ...
1. Twiqbal 2. Federal Rule of Evidence 502 3. The War Against Punitive Damages 4. The Eruption of Spoliation (Fewer than 180 state and federal decisions in 1999; more than 600 in 2009) 5. The Accretion of Federal Jurisdiction (E.g.,…
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The Five Most Important Developments in Federal Civil Practice in 2009

1. Iqbal and Congressional efforts to reverse it. 2. December 1, 2009 Civil Rules amendments — permitting post-answer amendment of complaint; limiting the time to amend after service of a motion to dismiss; and changing time periods and time computation rules 3. Mohawk Indus. v. Carpenter, 2009 U ...
1. Iqbal and Congressional efforts to reverse it. 2. December 1, 2009 Civil Rules amendments — permitting post-answer amendment of complaint; limiting the time to amend after service of a motion to dismiss; and changing time periods and time computation…
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RICO — Concrete, Definite, Tangible Losses Necessary to Establish RICO Injury

From Fisher v. Halliburton, 2009 U.S. Dist. LEXIS 117427 (S.D. Tex. Dec. 17, 2009): [P]laintiffs can only bring RICO claims for concrete, definite, and tangible losses. Price v. Pinnacle Brands, Inc., 138 F.3d 602, 607 (5th Cir. 1998) ("Injury to mere expectancy interests or to an 'intangible property interest' is not sufficient t ...
From Fisher v. Halliburton, 2009 U.S. Dist. LEXIS 117427 (S.D. Tex. Dec. 17, 2009): [P]laintiffs can only bring RICO claims for concrete, definite, and tangible losses. Price v. Pinnacle Brands, Inc., 138 F.3d 602, 607 (5th Cir. 1998) (“Injury to…
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Test for Obtaining Deposition of Trial Counsel — Sixth Circuit (and Eighth)

From No. Am. Rescue Prods., Inc. v. Bound Tree Medical, LLC, 2009 U.S. Dist. LEXIS 118316 (S.D. Ohio Nov. 19, 2009): [A] deposition of a trial attorney, for obvious reasons, is generally discouraged and may be ordered only under limited circumstances. In the Sixth Circuit, the party seeking the deposition must establish that (1) no other ...
From No. Am. Rescue Prods., Inc. v. Bound Tree Medical, LLC, 2009 U.S. Dist. LEXIS 118316 (S.D. Ohio Nov. 19, 2009): [A] deposition of a trial attorney, for obvious reasons, is generally discouraged and may be ordered only under limited…
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Recent Posts

Inherent Power Sanctions — Dismissal for Threatening Defendant and Magistrate Judge — No First Amendment Right to Threaten Violence

RICO: Domestic Injury — Delivery of Fraudulently Non-Conforming Goods FOB Los Angeles for Shipment to China Means Injury Arose Domestically When Purchaser Took Title —Other Relevant Factors Include That The Non-Conforming Goods Were Sourced and Made in the U.S. and The Racketeering Activity (Mail/Wire Fraud) Occurred in, and Was Directed from, the United States — Irrelevant to Domestic Injury Inquiry Whether Property Is Tangible or Intangible — 7th Circuit’s “Injury-Felt” Test of Domestic Injury Rejected by Supreme Court — RICO Standing Requires Concrete Financial Loss, Not Merely Injury to Valuable Intangible Property Interest (9th Circuit)

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

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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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