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

Implied Waiver of the Attorney-Client Privilege — Assertion of Good Faith Defense and Mention of Consultation with Counsel

From Henry v. Quicken Loans, Inc., 2008 U.S. Dist. LEXIS 112025 (E.D. Mich. Dec. 24, 2008): Magistrate Judge Pepe did *** find that statements by the defendants in their Good Faith Motion provided what he called the "plus factor" that pushed the defendants' assertions into an area of implied waiver. Specifically, in their Good Faith Moti ...
From Henry v. Quicken Loans, Inc., 2008 U.S. Dist. LEXIS 112025 (E.D. Mich. Dec. 24, 2008): Magistrate Judge Pepe did *** find that statements by the defendants in their Good Faith Motion provided what he called the “plus factor” that…
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What Constitute “Substantial Grounds for Difference of Opinion” for Purposes of 28 U.S.C. § 1292(b) — Second Circuit Standards

From U.S. ex rel Colucci v. Beth Israel Med. Ctr., 2009 U.S. Dist. LEXIS 117587 (S.D.N.Y. Dec. 15, 2009): Courts have found substantial ground for difference of opinion where there is conflicting authority on the issue or the issue is particularly difficult and one of first impression in the Second Circuit. Klinqhoffer, 921 F.2d ...
From U.S. ex rel Colucci v. Beth Israel Med. Ctr., 2009 U.S. Dist. LEXIS 117587 (S.D.N.Y. Dec. 15, 2009): Courts have found substantial ground for difference of opinion where there is conflicting authority on the issue or the issue is…
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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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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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