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

Bulgaria, as an EU Nation, Is an Adequate Alternative Forum for Forum Non Conveniens Purposes, Despite Corruption Concerns, Limited Remedies, and Filing Fee of 4% of Total Claimed Damages

From Stroitelstvo Bulgaria Ltd. v. Bulgarian-Am. Enter. Fund, 2009 U.S. App. LEXIS 27257 (7th Cir. Dec. 14, 2009): A threshold requirement for any forum non conveniens dismissal is the existence of an alternative forum that is both "available" and "adequate." Kamel v. Hill-Rom Co., Inc., 108 F.3d 799, 802 (7th Cir. 1997). ...
From Stroitelstvo Bulgaria Ltd. v. Bulgarian-Am. Enter. Fund, 2009 U.S. App. LEXIS 27257 (7th Cir. Dec. 14, 2009): A threshold requirement for any forum non conveniens dismissal is the existence of an alternative forum that is both “available” and “adequate.”…
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Twombly and Iqbal Do Not Extend to Affirmative Defenses — Caselaw Split

From Charleswell v. Chase Manhattan Bank, N.A., 2009 U.S. Dist. LEXIS 116358 (D.V.I. Dec. 8, 2009): In their motion, plaintiffs assert that Lloyds's Affirmative Defenses Seven, Nine, and Fourteen are insufficiently plead under the standards set by two recent Supreme Court rulings — Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (20 ...
From Charleswell v. Chase Manhattan Bank, N.A., 2009 U.S. Dist. LEXIS 116358 (D.V.I. Dec. 8, 2009): In their motion, plaintiffs assert that Lloyds’s Affirmative Defenses Seven, Nine, and Fourteen are insufficiently plead under the standards set by two recent Supreme…
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Party Cannot Revive Moot Case by Making Its Outcome Determinative of Another, Live Dispute

In Chwarzynski v. Tebbens, 2009 U.S. App. LEXIS 27129 (7th Cir. Dec. 14, 2009), sanctions were entered against the client (Chwarzynski) and his lawyer (Maher) in the amount of $15,324.25. The client appealed the sanction; the lawyer did not. The plaintiff therefore proceeded to collect the full amount of the sanction from the insurance carrier for the lawy ...
In Chwarzynski v. Tebbens, 2009 U.S. App. LEXIS 27129 (7th Cir. Dec. 14, 2009), sanctions were entered against the client (Chwarzynski) and his lawyer (Maher) in the amount of $15,324.25. The client appealed the sanction; the lawyer did not. The…
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Third-Party Defendant May Remove Action, If at All, Only If the Third-Party Claim Is “Separate and Independent” from Main Cause of Action — Caselaw Split

From Bank of N.Y. v. Ukpe, 2009 U.S. Dist. LEXIS 115557 (D.N.J. Dec. 9, 2009): [W]hether a third-party defendant may remove an action has not been addressed by the United States Supreme Court or by the United States Court of Appeals for the Third Circuit. The majority of courts analyzing this issue have decided that a third-party ...
From Bank of N.Y. v. Ukpe, 2009 U.S. Dist. LEXIS 115557 (D.N.J. Dec. 9, 2009): [W]hether a third-party defendant may remove an action has not been addressed by the United States Supreme Court or by the United States Court of…
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Attorney-Client Privilege — Waiver by Use of Employer’s Email System — DOJ Attorney Does Not Waive Privilege by Communicating with Personal Attorney Using DOJ Email System

From Convertino v. U.S. Dep’t of Justice, 2009 U.S. Dist. LEXIS 115050 (D.D.C. Dec. 10, 2009): A party may waive either privilege by disclosing confidential information to a third-party, however, no waiver exists if "(1) the disclosure is inadvertent;" and "(2) the holder of the privilege or protection took reasonable steps to prevent ...
From Convertino v. U.S. Dep’t of Justice, 2009 U.S. Dist. LEXIS 115050 (D.D.C. Dec. 10, 2009): A party may waive either privilege by disclosing confidential information to a third-party, however, no waiver exists if “(1) the disclosure is inadvertent;” and…
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Sanctions — IRS Ordered to Pay $1 Million in Attorneys’ Fees for Fraud on the Tax Court to Counsel Who Agreed to Appear Pro Bono or for Only Those Amounts Awarded by the Court — Interest Awarded

When it is not just the Government but the Internal Revenue Service that is sanctioned for more than one million dollars, one can’t help but wonder if life gets better than this. From Dixon v. Comm’r of Internal Revenue, 2009 U.S. Tax Ct. LEXIS 5 (U.S. Tax Court Mar. 23, 2009): These cases are part of the Kersting tax shelter litigat ...
When it is not just the Government but the Internal Revenue Service that is sanctioned for more than one million dollars, one can’t help but wonder if life gets better than this. From Dixon v. Comm’r of Internal Revenue, 2009…
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No Interlocutory Appeal of Privilege Decisions via Collateral Order Doctrine

Resolving a Circuit split, the Supreme Court, in Mohawk Indus. v. Carpenter, 2009 U.S. LEXIS 8942 (Dec. 8, 2009), declined to extend the collateral order doctrine to permit interlocutory appeals of district court decisions overruling assertions of attorney-client privilege. The Court pointed to “rulemaking, ‘not expansion by court decision,’ as the pre ...
Resolving a Circuit split, the Supreme Court, in Mohawk Indus. v. Carpenter, 2009 U.S. LEXIS 8942 (Dec. 8, 2009), declined to extend the collateral order doctrine to permit interlocutory appeals of district court decisions overruling assertions of attorney-client privilege. The…
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Lawyer Providing Conventional Legal Advice Does Not Violate RICO — Non-Moving Defendants Standing in the Same Posture as Moving Defendants May Be Dismissed on Court’s Initiative

From Melton v. Blankenship, 2009 U.S. App. LEXIS 686 (6th Cir. Jan 13, 2009): Plaintiffs filed a civil RICO claim against defendants, arguing that defendants conspired against them in a previous suit by maliciously filing a counterclaim that lacked a factual basis. Because we conclude that the remedy for this alleged injury lies in state ...
From Melton v. Blankenship, 2009 U.S. App. LEXIS 686 (6th Cir. Jan 13, 2009): Plaintiffs filed a civil RICO claim against defendants, arguing that defendants conspired against them in a previous suit by maliciously filing a counterclaim that lacked a…
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Mere Inability to Locate Cell Phone Photos Does Not Necessarily Constitute Spoliation

From McClain v. Norfolk So. Rwy. Co., 2009 U.S. Dist. LEXIS 22474 (N.D. Ohio Mar. 16, 2009): Through counsel, plaintiff volunteered during his deposition that he took pictures of the catwalk. Now he can't retrieve them from his cell phone. He doesn't know what happened. According to the plaintiff's opposition to defendant's motio ...
From McClain v. Norfolk So. Rwy. Co., 2009 U.S. Dist. LEXIS 22474 (N.D. Ohio Mar. 16, 2009): Through counsel, plaintiff volunteered during his deposition that he took pictures of the catwalk. Now he can’t retrieve them from his cell phone.…
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Spoliation — Two Tests Used to Determine Appropriate Sanction

From One Beacon Ins. Co. v. Elec. Power Eng’g (Scotland), Ltd., 2009 U.S. Dist. LEXIS 111048 (E.D. La. Nov. 24, 2009): The spoliation of evidence doctrine concerns the intentional destruction of evidence. See Menges v. Cliffs Drilling Co. , 2000 U.S. Dist. LEXIS 8478, 2000 WL 765082 at *1 (E.D. La.) (Vance, J.) (citing Voduse ...
From One Beacon Ins. Co. v. Elec. Power Eng’g (Scotland), Ltd., 2009 U.S. Dist. LEXIS 111048 (E.D. La. Nov. 24, 2009): The spoliation of evidence doctrine concerns the intentional destruction of evidence. See Menges v. Cliffs Drilling Co. , 2000…
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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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