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

Noerr-Pennington Doctrine Applies to Government’s Condemnation Litigation, Including Discovery Conduct — Protection Extends to Counsel — Sham Exception Applies Even If Plaintiff was Not Diligent in Seeking to Uncover Sham

The plaintiff Kearney v. Foley & Lardner, LLP, 2009 U.S. App. LEXIS 20950 (9th Cir. Sept. 18, 2009) alleged that, in a prior state court condemnation proceeding, the condemning governmental entity and its counsel falsely denied the existence of, and failed to produce in discovery, test results that bore directly on the value of the property. The governmental ...
The plaintiff Kearney v. Foley & Lardner, LLP, 2009 U.S. App. LEXIS 20950 (9th Cir. Sept. 18, 2009) alleged that, in a prior state court condemnation proceeding, the condemning governmental entity and its counsel falsely denied the existence of, and…
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Name Partners at P.C. Not Liable as Fiduciaries for Other Lawyer’s Pillaging of IOLA Account — Violation of Disciplinary Rules Isn’t Necessarily Evidence of Negligence — N.Y. Bus. Corp. L. § 1505 Imposes No Duties on Lawyers in PC Not Representin

From Gianoukas v. Campitiello, 2009 U.S. Dist. LEXIS 95354 (S.D.N.Y. Oct. 13, 2009): Levy and Boonshoft are lawyers and officers of L&B, a New York professional services corporation. (Amended Complaint.... At times relevant to this action, Campitiello, who is also a lawyer, was a partner in, and employed by, L&B.... The Amended Complaint ...
From Gianoukas v. Campitiello, 2009 U.S. Dist. LEXIS 95354 (S.D.N.Y. Oct. 13, 2009): Levy and Boonshoft are lawyers and officers of L&B, a New York professional services corporation. (Amended Complaint…. At times relevant to this action, Campitiello, who is also…
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Bank of America Privilege Waiver Order — Not Authorized by Federal Rule of Evidence 502

Download associated file: B of A Waiver Order.pdf  The Southern District Judge presiding over the SEC/Bank of America action entered the selective waiver order drafted by counsel for Bank of America and the Securities and Exchange Commission (attached). In my view, it d ...
Download associated file: B of A Waiver Order.pdf  The Southern District Judge presiding over the SEC/Bank of America action entered the selective waiver order drafted by counsel for Bank of America and the Securities and Exchange Commission (attached). In…
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Abuse of Discretion & Experts — That Court 1 Is Affirmed in Admitting Certain Expert Testimony as Helpful to the Jury Does Not Mean that Court 2 Erred in Excluding Essentially the Same Testimony as Unnecessary to Assist Another Jury

From North American Specialty Ins. Co. v. Britt Paulk Ins. Agency, Inc., 579 F.3d 1106 (10th Cir. 2009): Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), establishes a two-part test for admission of expert testimony under Federal Rule of Evidence 702. First, evidence must be r ...
From North American Specialty Ins. Co. v. Britt Paulk Ins. Agency, Inc., 579 F.3d 1106 (10th Cir. 2009): Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), establishes a two-part…
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Trust 1 Is Not Collaterally Estopped by Judgment Against Trust 2 — Even Though They Share the Same Testators, Counsel and a Majority of Trustees — Given the Supreme Court’s Limitations on the Doctrine of “Virtual Representation”

From Henry E. and Nancy Horton Bartels Trust for the Benefit of Cornell Univ. v. United States, 88 Fed. Cl. 105, 2009 U.S. Claims LEXIS 236, 2009-2 U.S. Tax Cas. (CCH) ¶50,475 (U.S. Claims Ct. July 1, 2009): Plaintiff, the Henry E. and Nancy Horton Bartels Trust for the Benefit of Cornell University ("Cornell Trust"), is a tax-exempt non ...
From Henry E. and Nancy Horton Bartels Trust for the Benefit of Cornell Univ. v. United States, 88 Fed. Cl. 105, 2009 U.S. Claims LEXIS 236, 2009-2 U.S. Tax Cas. (CCH) ¶50,475 (U.S. Claims Ct. July 1, 2009): Plaintiff, the…
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SLUSA Removal ≠ Complete Preemption — Removal Requires Only Consent of, Not Signatures from, All Defendants (Circuit Split) — After Dismissing SLUSA-Precluded Claim, Remand Appropriate — Quasi-Appraisal — Good Quote

From Proctor v. Vishay Intertechnology, Inc., 2009 U.S. App. LEXIS 22254 (9th Cir. 2009): [Quasi-Appraisal] "Quasi-appraisal" is a term of art under Delaware corporations law.... Where the statutory appraisal remedy will not make a plaintiff whole—for example, when a plaintiff has been "wrongfully deprived, e ...
From Proctor v. Vishay Intertechnology, Inc., 2009 U.S. App. LEXIS 22254 (9th Cir. 2009): [Quasi-Appraisal] “Quasi-appraisal” is a term of art under Delaware corporations law…. Where the statutory appraisal remedy will not make a plaintiff whole—for example, when a plaintiff…
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Michigan Issues Model Jury Instructions Prohibiting Jurors from Using Computers or PDAs to Search for Information About the Case

Effective September 1, 2009, the Michigan Supreme Court adopted Model Civil Jury Instruction 2.06(3)-(4), which bars the use by jurors of handheld devices and computers to obtain information relevant to the case, and directs judges to instruct jurors as follows: (3) While you are in the courtroom and while you are deliberating, you are prohibite ...
Effective September 1, 2009, the Michigan Supreme Court adopted Model Civil Jury Instruction 2.06(3)-(4), which bars the use by jurors of handheld devices and computers to obtain information relevant to the case, and directs judges to instruct jurors as follows:…
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Protective / Confidentiality Orders — Factors Governing In-House Counsel’s Access to Highly Confidential Trade Secrets Disclosed in Discovery

From Biovail Labs., Inc. v. Anchen Pharms., Inc., 463 F. Supp. 2d 1073, 1084 (C.D. Cal. 2006): Finally, the Court must consider whether Biovail 's new general counsel, Wendy Kelley, may review Anchen's confidential documents without executing a declaration stating she would not be involved in competitive decision-making at Biovail, as h ...
From Biovail Labs., Inc. v. Anchen Pharms., Inc., 463 F. Supp. 2d 1073, 1084 (C.D. Cal. 2006): Finally, the Court must consider whether Biovail ‘s new general counsel, Wendy Kelley, may review Anchen’s confidential documents without executing a declaration stating…
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Jury Trials in the Internet Era

Jurors, like everyone else, overwhelmingly use the Internet. They have access to information, however dubious, on the subject-matter of the case, the parties, the lawyers, the witnesses and even the evidence. I attended an excellent program at the Annual Meeting of the American College of Trial Lawyers on Saturday, October 9, 2009, on this subject. Some take-away ...
Jurors, like everyone else, overwhelmingly use the Internet. They have access to information, however dubious, on the subject-matter of the case, the parties, the lawyers, the witnesses and even the evidence. I attended an excellent program at the Annual Meeting…
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Evidence Drawn from Corporate Defendant’s Website Excluded

From McReynolds v. Lowe’s Cos., 2008 U.S. Dist. LEXIS 100594 (D. Idaho Dec. 12, 2008): Lowe's objects to Plaintiffs' Exhibits F, G, I, and L - W which are attached to the affidavit of Plaintiffs' counsel in response to the motion to dismiss arguing they are unauthenticated. Plaintiffs' counsel purports to authenticate the documents by ...
From McReynolds v. Lowe’s Cos., 2008 U.S. Dist. LEXIS 100594 (D. Idaho Dec. 12, 2008): Lowe’s objects to Plaintiffs’ Exhibits F, G, I, and L – W which are attached to the affidavit of Plaintiffs’ counsel in response to the…
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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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