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

Post-Mohawk, Mandamus Available for Interlocutory Review of Denial of Privilege Assertion (Here, First Amendment Defense to Production of Internal Campaign Deliberations)

From Perry v. Schwarzenegger, 2009 U.S. App. LEXIS 27064 (9th Cir. Dec. 11, 2009): In the event that we do not have jurisdiction under the collateral order doctrine [in light of the Supreme Court’s decision in Mohawk Indus. v. Carpenter, 558 U.S. ___ (Dec. 8, 2009)], we would have authority to grant the remedy of mandamus. ...
From Perry v. Schwarzenegger, 2009 U.S. App. LEXIS 27064 (9th Cir. Dec. 11, 2009): In the event that we do not have jurisdiction under the collateral order doctrine [in light of the Supreme Court’s decision in Mohawk Indus. v. Carpenter,…
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No Injunctive Relief Available to Private Plaintiffs under RICO

From Minter v. Wells Fargo Bank, N.A., 2009 U.S. Dist. LEXIS 6230 (D. Md. Jan. 14, 2009): Unlike most of the issues raised by Defendants in their motion for summary judgment, whether injunctive relief is available under … civil RICO, is a purely legal question…. The only two courts of appeals to have addressed this issue directly, th ...
From Minter v. Wells Fargo Bank, N.A., 2009 U.S. Dist. LEXIS 6230 (D. Md. Jan. 14, 2009): Unlike most of the issues raised by Defendants in their motion for summary judgment, whether injunctive relief is available under … civil RICO,…
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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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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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