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

Authentication of MySpace Communications = Email Authentication; No Need for Testimony from Representative of MySpace

From Dockery v. Dockery, 2009 Tenn. App. LEXIS 717 (Tenn. App. Oct. 29, 2009) (note: Tennessee Rule of Evidence 901(a) = Federal Rule of Evidence 901(a)): Husband was found guilty of two counts of criminal contempt based on the content of communications he had with Ms. Lowe. Ms. Lowe was called as a witness at trial. Ms. Lowe testified ...
From Dockery v. Dockery, 2009 Tenn. App. LEXIS 717 (Tenn. App. Oct. 29, 2009) (note: Tennessee Rule of Evidence 901(a) = Federal Rule of Evidence 901(a)): Husband was found guilty of two counts of criminal contempt based on the content…
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Non-Collusive Naming of Citizen of Forum as Defendant Bars Removal Even If Defendant Is Not “Properly Joined and Served” Before Removal, Despite Text of 28 U.S.C. § 1441(b) — Caselaw Split

From NFC Acquisition, LLC v. Comerica Bank, 640 F. Supp. 2d 964 (N.D. Ohio 2009): Under 28 U.S.C. § 1441(b), federal courts have authority to exercise diversity jurisdiction if "none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." Referred to a ...
From NFC Acquisition, LLC v. Comerica Bank, 640 F. Supp. 2d 964 (N.D. Ohio 2009): Under 28 U.S.C. § 1441(b), federal courts have authority to exercise diversity jurisdiction if “none of the parties in interest properly joined and served as…
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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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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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