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

Inappropriate for Expert to Opine as to State of Mind, Summarize Documents with a “Tilt” or Offer Legal Conclusions — But Testimony as to the Reasonableness of a Party’s Behavior May Be Permissible

From In Re Genetically Modified Rice Litigation, 2009 U.S. Dist. LEXIS 98302 (E.D. Mo. Oct. 9, 2002): Rule 702 permits expert testimony if it "will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed. R. Evid. 702. The key inquiries are the (1) factual basis of the opinion, (2) reliability of the m ...
From In Re Genetically Modified Rice Litigation, 2009 U.S. Dist. LEXIS 98302 (E.D. Mo. Oct. 9, 2002): Rule 702 permits expert testimony if it “will assist the trier of fact to understand the evidence or to determine a fact in…
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Multidistrict Litigation — When Transferee (MDL) Court May Overturn Decision of Transferor (Caselaw Split) — Mandamus to Review Transferee Court’s Refusal to Reconsider Decision of Transferor

From In re: Ford Motor Co., 580 F.3d 308 (5th Cir. 2009) [Note: Corrected opinion filed 12/16/09, reported at 2009 U.S. App. LEXIS 27637]: :The issue—whether we can grant mandamus on a district court's refusal to reconsider a pretrial MDL decision—is one of first impression in this circuit. *** We begin by addressing ho ...
From In re: Ford Motor Co., 580 F.3d 308 (5th Cir. 2009) [Note: Corrected opinion filed 12/16/09, reported at 2009 U.S. App. LEXIS 27637]: :The issue—whether we can grant mandamus on a district court’s refusal to reconsider a pretrial MDL…
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“Excusable Neglect” within Federal Rule of Civil Procedure 6(b) — Unawareness of ECF Message

From Kucik v. Yamaha Motor Corp., 2009 U.S. Dist. LEXIS 96704 (N.D. Ind. Oct. 16, 2009): Before this Court can consider the merits of the spoliation argument, it must address a procedural wrinkle that presented itself when the Plaintiff failed to timely respond to the Defendant's Motion to Dismiss. The Plaintiff's counsel advised during ...
From Kucik v. Yamaha Motor Corp., 2009 U.S. Dist. LEXIS 96704 (N.D. Ind. Oct. 16, 2009): Before this Court can consider the merits of the spoliation argument, it must address a procedural wrinkle that presented itself when the Plaintiff failed…
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Arbitration — Generic Choice of Law Provision Does Not Opt Out of Federal Arbitration Act and Permit Expanded Appellate Review Under State Law

From Oberwager v. McKenchnie Ltd., 2009 U.S. App. LEXIS 23006 (3d Cir. Oct. 20, 2009): This case arises from a stock purchase agreement ("SPA") entered into by the parties in 1999, providing for arbitration of any dispute arising from the agreement. The SPA also contained a generic choice-of-law provision which stated that the agreemen ...
From Oberwager v. McKenchnie Ltd., 2009 U.S. App. LEXIS 23006 (3d Cir. Oct. 20, 2009): This case arises from a stock purchase agreement (“SPA”) entered into by the parties in 1999, providing for arbitration of any dispute arising from the…
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D.C. Circuit Declines to Decide whether Sua Sponte Sanctions May Issue Only in Circumstances “Akin to Contempt” — Lingering Circuit Split

From Lucas v. Duncan, 574 F.3d 772 (D.C. Cir. 2009): Although both Karl and the Department of Education agree that this court should review the magistrate judge's order for abuse of discretion with particular care, ... they disagree as to the substantive standard that the judge should himself have applied. Karl notes that Rule 11(c)(2), ...
From Lucas v. Duncan, 574 F.3d 772 (D.C. Cir. 2009): Although both Karl and the Department of Education agree that this court should review the magistrate judge’s order for abuse of discretion with particular care, … they disagree as to…
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RICO — Whistleblower’s Firing Not Caused by RICO Violations about Which He Blew the Whistle

From Donnelli v. County of Sullivan, 2009 U.S. Dist. LEXIS 66994 (S.D.N.Y. July 31, 2009): The gist of the plaintiffs' RICO claim is that the defendants were involved in an enterprise that entailed the purchase of heavy duty highway maintenance equipment in the name of Sullivan County and the illegal appropriation of such equipment for pe ...
From Donnelli v. County of Sullivan, 2009 U.S. Dist. LEXIS 66994 (S.D.N.Y. July 31, 2009): The gist of the plaintiffs’ RICO claim is that the defendants were involved in an enterprise that entailed the purchase of heavy duty highway maintenance…
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Mere Request in Brief for Leave to Amend, without Motion, Justifies Denial — As Does Subsequent Failure to File Proposed Amendment in District Court

From In re Novastar Fin. Inc. Secs. Litg., 2009 U.S. App. LEXIS 19634 (8th Cir. Sept. 1, 2009): "Although leave to amend 'shall be freely given when justice so requires,' see Fed. R. Civ. P. 15(a), plaintiffs do not have an absolute or automatic right to amend." U.S. ex rel. Lee v. Fairview Health Sys., 413 F.3d 748, 749 ( ...
From In re Novastar Fin. Inc. Secs. Litg., 2009 U.S. App. LEXIS 19634 (8th Cir. Sept. 1, 2009): “Although leave to amend ‘shall be freely given when justice so requires,’ see Fed. R. Civ. P. 15(a), plaintiffs do not have…
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Securities — No First Amendment or N.Y. Times v. Sullivan Protections for Allegedly Fraudulent Statements

From SEC v. Pirate Investor LLC, 2009 U.S. App. LEXIS 20455 (4th Cir. Sept. 15, 2009): In challenging the district court's scienter determination, Appellants contend that the First Amendment protections recognized by the Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), apply to ...
From SEC v. Pirate Investor LLC, 2009 U.S. App. LEXIS 20455 (4th Cir. Sept. 15, 2009): In challenging the district court’s scienter determination, Appellants contend that the First Amendment protections recognized by the Supreme Court in New York Times Co.…
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Experts and Summary Judgment — Competing Threads of Decision

Does an expert opinion -- or do conflicting expert opinions -- create a fact issue precluding summary judgment? Fact Issue Created • Harris v. Provident Life & Accident Ins. Co., 310 F.3d 73, 79 (2d Cir. 2002): “Where, as here, there are conflicting expert reports presented, courts are wary of granting summary judg ...
Does an expert opinion — or do conflicting expert opinions — create a fact issue precluding summary judgment? Fact Issue Created • Harris v. Provident Life & Accident Ins. Co., 310 F.3d 73, 79 (2d Cir. 2002): “Where, as here,…
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“Corporate Disclosure of ‘Facts’” without Waiving Attorney-Client Privilege or Work Product Protection — Paper authored by Professor Bruce Green for ABA Task Force on Attorney-Client Privilege

Download associated file: Bruce Green Disclosure of Facts without Waiver.pdf  Bruce Green, the distinguished Louis Stein Professor of Law at Fordham Law School and the Director of the S ...
Download associated file: Bruce Green Disclosure of Facts without Waiver.pdf  Bruce Green, the distinguished Louis Stein Professor of Law at Fordham Law School and the Director of the Stein Center of Law and Ethics, has written an excellent,…
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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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