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

Judicial Estoppel Inappropriate Where Party Changes Position Due to Intervening Change in Law

From Longaberger Co. v. Kolt, 2009 U.S. App. LEXIS 25047 (6th Cir. Nov. 16, 2009): In its motion for injunctive relief, Longaberger stated that "if Kolt disburses or otherwise commingles or uses the settlement funds which he holds in constructive trust for the benefit of the Plan, the Plan will forever lose the ability to recover its prop ...
From Longaberger Co. v. Kolt, 2009 U.S. App. LEXIS 25047 (6th Cir. Nov. 16, 2009): In its motion for injunctive relief, Longaberger stated that “if Kolt disburses or otherwise commingles or uses the settlement funds which he holds in constructive…
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Rule 45 — Party May Object to Subpoena Served on Third Party Seeking Documents to Which Party Has Standing to Invoke Privilege or Personal Interest

From Iron Workers’ Local 25 Pension Fund v. Watson Wyatt & Co., 2009 U.S. Dist. LEXIS 18335 (E.D. Mich. Mar. 10, 2009): Although a party to a lawsuit typically has no standing to object to a subpoena directed at a non-party, standing exists when the party claims a privilege or other personal interest in regard to the requested docum ...
From Iron Workers’ Local 25 Pension Fund v. Watson Wyatt & Co., 2009 U.S. Dist. LEXIS 18335 (E.D. Mich. Mar. 10, 2009): Although a party to a lawsuit typically has no standing to object to a subpoena directed at a…
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Absence of Any Methodology by Expert in “Metaphorical Associations” Warrants Exclusion under Daubert and Rule 702 — Expert Unnecessary Where Jury Is Capable of Comprehending Facts and Drawing Conclusions

From Flagstar Bank, FSB v. Freestar Bank, N.A., 2009 U.S. Dist. LEXIS 106106 (C.D. Ill. Nov. 13, 2009), a trademark infringement action: Dr. Edward Lee Lamoureux holds a Ph.D. from the University of Oregon in Rhetoric and Communication with an emphasis on conversation analysis, rhetoric, qualitative research methods, general speech, and i ...
From Flagstar Bank, FSB v. Freestar Bank, N.A., 2009 U.S. Dist. LEXIS 106106 (C.D. Ill. Nov. 13, 2009), a trademark infringement action: Dr. Edward Lee Lamoureux holds a Ph.D. from the University of Oregon in Rhetoric and Communication with an…
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No Fraud If Recipient of Falsehoods Was Not Deceived — Fraud Action May Not Be Based on Misrepresentations of Law

Calif. Pharm. Mgmt., LLC v. Redwood & Cas. Ins. Co., 2009 U.S. Dist. LEXIS 105770 (C.D. Cal. Oct. 26, 2009) (mail fraud-based RICO action; also upholding assignee’s standing to assert RICO claims without discussion): In dismissing the SAC, this Court identified two deficiencies with Plaintiff's RICO claim. First, the SAC's allegations could ...
Calif. Pharm. Mgmt., LLC v. Redwood & Cas. Ins. Co., 2009 U.S. Dist. LEXIS 105770 (C.D. Cal. Oct. 26, 2009) (mail fraud-based RICO action; also upholding assignee’s standing to assert RICO claims without discussion): In dismissing the SAC, this Court…
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RICO Claim Barred by Res Judicata Because It Was Not Asserted in Prior State Court Action Arising Out of the Same Nucleus of Operative Facts and State Court Did Not Split the Cause of Action

From Crooked Creek Properties, Inc. v. Ensley, 2009 U.S. Dist. LEXIS 100907 (M.D. Ala. Oct. 28, 2009): [A]lthough not all of the causes of action are the same in the present action and the Autauga County Suit, res judicata's same-cause-of-action element will be satisfied if the claims in the former and present actions arise out ...
From Crooked Creek Properties, Inc. v. Ensley, 2009 U.S. Dist. LEXIS 100907 (M.D. Ala. Oct. 28, 2009): [A]lthough not all of the causes of action are the same in the present action and the Autauga County Suit, res judicata’s same-cause-of-action…
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Constitutional Necessity (Ashwander) vs. Constitutional Avoidance

From United States v. Whitted, 541 F.3d 480 (3d Cir. 2008) (Chagares, J., concurring): "It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case." Burton v. United States, 196 U.S. 283, 295, 25 S. Ct. 243, 49 L. Ed. 482 (1905). Such restraint is well-est ...
From United States v. Whitted, 541 F.3d 480 (3d Cir. 2008) (Chagares, J., concurring): “It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.” Burton v.…
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The “Follow-the-Settlements” or “Follow-the-Fortunes” Doctrine in Reinsurance

From Global Reins. Corp. of Am. v. Argonaut Ins. Co., 634 F. Supp. 2d 342 (S.D.N.Y. 2009): The "follow-the-settlements" (or "follow-the-fortunes") doctrine "binds a reinsurer to accept the cedent's good faith decisions on all things concerning the underlying insurance terms and claims against the underlying insured: coverage, tactics, law ...
From Global Reins. Corp. of Am. v. Argonaut Ins. Co., 634 F. Supp. 2d 342 (S.D.N.Y. 2009): The “follow-the-settlements” (or “follow-the-fortunes”) doctrine “binds a reinsurer to accept the cedent’s good faith decisions on all things concerning the underlying insurance terms…
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Authentication of Internet Evidence as Dependent on Purpose of Proffer and Source — Typical Web vs. Internet Archive

From Saadi v. Maroun, 2009 U.S. Dist. LEXIS 102879 (M.D. Fla. Nov. 4, 2009): Federal Rule of Evidence 901 requires that before a court may admit evidence in trial, a party must present evidence sufficient to show "that the matter in question is what its proponent claims." Fed. R. Evid. 901(a). A party can authenticate evidence in several ...
From Saadi v. Maroun, 2009 U.S. Dist. LEXIS 102879 (M.D. Fla. Nov. 4, 2009): Federal Rule of Evidence 901 requires that before a court may admit evidence in trial, a party must present evidence sufficient to show “that the matter…
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Forum Selection Clause Providing that Parties “Submit” to Courts of One Jurisdiction, without More, Is Permissive, Not Mandatory — Failure to Attach a Copy of Served Process with Notice of Removal Does Not Warrant Remand Even If Not Timely Corrected

Plaintiffs do not contest that this court has original jurisdiction over the instant action on the bases of both complete diversity between the parties and the federal questions presented by the Lanham Act and ACCPA [Anticybersquatting Consumer Protection Act] claims. Nevertheless, plaintiffs argue that the instant case should be remanded because, first, the forum- ...
Plaintiffs do not contest that this court has original jurisdiction over the instant action on the bases of both complete diversity between the parties and the federal questions presented by the Lanham Act and ACCPA [Anticybersquatting Consumer Protection Act] claims.…
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Standards for Withdrawal of the Reference to the Bankruptcy Court — Permissive and Mandatory (11th Circuit)

From Smith v. Regions Bank, 2009 U.S. Dist. LEXIS 103586 (S.D. Ga. Nov. 6, 2009): Withdrawal of the reference to the bankruptcy court may be either permissive or mandatory. The statute provides: The district court may withdraw, in whole or in part, any case or proceeding referred under this section, on its own mo ...
From Smith v. Regions Bank, 2009 U.S. Dist. LEXIS 103586 (S.D. Ga. Nov. 6, 2009): Withdrawal of the reference to the bankruptcy court may be either permissive or mandatory. The statute provides: The district court may withdraw, in whole or…
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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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