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

Waiver of Attorney-Client Privilege by Use of Employer’s Email System by Employee and Employee’s Lawyer — Four-Factor Test

From Alamar Ranch, LLC v. County of Boise, 2009 U.S. Dist. LEXIS 101866 (D. Idaho Nov. 2, 2009): Does use of work e-mail waive any privilege? Although there are no Ninth Circuit cases on-point, cases from other jurisdictions have developed a four factor test to balance the expectation of privacy against the lack of confidentiality: (1 ...
From Alamar Ranch, LLC v. County of Boise, 2009 U.S. Dist. LEXIS 101866 (D. Idaho Nov. 2, 2009): Does use of work e-mail waive any privilege? Although there are no Ninth Circuit cases on-point, cases from other jurisdictions have developed…
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RICO — Association-in-Fact Enterprise Composed Exclusively of the Defendants Violates the Distinctiveness Requirement of § 1962(c)

From De Lage Landen Fin. Servs. V. Rasa Floors, LP, 2009 U.S. Dist. LEXIS 19994 (E.D. Pa. Mar. 5, 2009): [Defendant and Counterclaimant] Rasa also brings a claim against [Plaintiff and Counterclaim Defendant] DLL under the Racketeer Influenced Corrupt Organization Act ("RICO"), 18 U.S.C. § 1961 et seq. Rasa alleges that DLL and Defenda ...
From De Lage Landen Fin. Servs. V. Rasa Floors, LP, 2009 U.S. Dist. LEXIS 19994 (E.D. Pa. Mar. 5, 2009): [Defendant and Counterclaimant] Rasa also brings a claim against [Plaintiff and Counterclaim Defendant] DLL under the Racketeer Influenced Corrupt Organization…
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Violation of Internal Corporate Policy as Proof of Securities Fraud

From In re Sadia, S.A. Secs. Litig., 2009 U.S. Dist. LEXIS 66998 (S.D.N.Y., July 29, 2009): Sadia further argues that even if plaintiffs could establish that it had entered into currency hedging contracts in violation of its internal hedging policy, allegations that a corporation violated its own internal policy "amount to nothing more t ...
From In re Sadia, S.A. Secs. Litig., 2009 U.S. Dist. LEXIS 66998 (S.D.N.Y., July 29, 2009): Sadia further argues that even if plaintiffs could establish that it had entered into currency hedging contracts in violation of its internal hedging policy,…
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Sanctions — Factors Militating for Reductions in Court-Ordered Attorneys’ Fees

From the sanctions decision of the magistrate judge in Brigham Young Univ. v. Pfizer, Inc., 2009 U.S. Dist. LEXIS 101052 (D. Utah Oct. 28, 2009): Having concluded that fees and expenses are appropriate, the Court now turns to the reasonableness of BYU's request. At the outset the Court notes that it has reviewed the rates charged by comp ...
From the sanctions decision of the magistrate judge in Brigham Young Univ. v. Pfizer, Inc., 2009 U.S. Dist. LEXIS 101052 (D. Utah Oct. 28, 2009): Having concluded that fees and expenses are appropriate, the Court now turns to the reasonableness…
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Attorney-Client Privilege — Subject Matter Waiver — Discovery Allowed into Whether Client Authorized Counsel to Submit Memorandum and Exhibits to Prosecutors

From Mainstay High Yield Corporate Bond Fund v. Heartland Industrial Partners, LP, 2009 U.S. Dist. LEXIS 100475 (E.D. Mich. Oct. 28, 2009): Following the failure of Collins & Aikman, the United States Attorney for the Southern District of New York commenced a criminal investigation in which Defendant McCallum was a target. Mr. McCallum ...
From Mainstay High Yield Corporate Bond Fund v. Heartland Industrial Partners, LP, 2009 U.S. Dist. LEXIS 100475 (E.D. Mich. Oct. 28, 2009): Following the failure of Collins & Aikman, the United States Attorney for the Southern District of New York…
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Twombly and Iqbal Apply to All Four Elements of Civil RICO Claim — Nexus Must Exist Between Racketeering Activity and Enterprise

From Smartix International Corporation v. MasterCard Int’l LLC, 2009 U.S. App. LEXIS 23810 (2d Cir. Oct. 29, 2009): "[I]n order to establish a RICO violation under § 1962(c), a plaintiff . . . must allege and prove four elements: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." City of N.Y. v. ...
From Smartix International Corporation v. MasterCard Int’l LLC, 2009 U.S. App. LEXIS 23810 (2d Cir. Oct. 29, 2009): “[I]n order to establish a RICO violation under § 1962(c), a plaintiff . . . must allege and prove four elements: (1)…
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Supplemental Jurisdiction Appropriately Declined Over State Law Issue that Is Novel, Complex or a Matter of First Impression

From Mt Holly Citizens in Action, Inc. v. Township of Mount Holly, 2009 U.S. Dist. LEXIS 100032 (D.N.J. Oct. 23, 2009): Plaintiffs claim that the Township's use of its municipal powers to redevelop existing low income residential neighborhoods violates the General Welfare Clause of the New Jersey Constitution. Plaintiffs' claim is bas ...
From Mt Holly Citizens in Action, Inc. v. Township of Mount Holly, 2009 U.S. Dist. LEXIS 100032 (D.N.J. Oct. 23, 2009): Plaintiffs claim that the Township’s use of its municipal powers to redevelop existing low income residential neighborhoods violates the…
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Sanctions — Inclusion of Show-Cause Language in Magistrate Judge’s Report Rather than Stand-Alone Order Satisfies Rule 11(c)(3)

From Brunig v. Clark, 2009 U.S. App. LEXIS 3513 (5th Cir. Feb. 17, 2009): Brunig's brief asserts that the district court never issued a show cause order. This assertion misstates the record — the magistrate report's final section described Brunig's conduct, recommended that the district court judge impose sanctions, and directed Bruni ...
From Brunig v. Clark, 2009 U.S. App. LEXIS 3513 (5th Cir. Feb. 17, 2009): Brunig’s brief asserts that the district court never issued a show cause order. This assertion misstates the record — the magistrate report’s final section described Brunig’s…
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FSIA — Expropriation Exception — Foreign State Defendant Need Not Be the State that Wrongfully Expropriated — Foreign Exhaustion Discretionary — Commercial Activity Includes Ads, Press Releases

From Cassirer v. Kingdom of Spain, 580 F.3d 1048 (9th Cir. 2009): Claude Cassirer ("Cassirer") filed this action in federal district court against the Kingdom of Spain ("Spain") and the Thyssen-Bornemisza Collection Foundation (the "Foundation") 1 to recover a Camille Pissarro painting now on display at the Foundation's museum in Madrid, ...
From Cassirer v. Kingdom of Spain, 580 F.3d 1048 (9th Cir. 2009): Claude Cassirer (“Cassirer”) filed this action in federal district court against the Kingdom of Spain (“Spain”) and the Thyssen-Bornemisza Collection Foundation (the “Foundation”) 1 to recover a Camille…
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Alien Tort Statute — Sosa Does Not Incorporate Customary International Law, Wholesale, into ATS; RICO — § 1962(b) Elements

From In re Xe Servs. Alien Tort Litig., 2009 U.S. Dist. LEXIS 97994 (E.D. Va. Oct. 21, 2009): [Alien Tort Statute] Importantly, Sosa counsels the federal courts to engage in "vigilant doorkeeping" when determining whether to recognize a cause of action under the ATS for five reasons, each of which relates to the need ...
From In re Xe Servs. Alien Tort Litig., 2009 U.S. Dist. LEXIS 97994 (E.D. Va. Oct. 21, 2009): [Alien Tort Statute] Importantly, Sosa counsels the federal courts to engage in “vigilant doorkeeping” when determining whether to recognize a cause of…
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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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