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

Lawyer/Auditor Communications: Tax Accrual Workpapers, Prepared by Lawyers and Others to Support Tax Reserves, Are Not Entitled to Work Product Protection — First Circuit En Banc (5-2) [Privilege]

From United States v. Textron, 2009 U.S. App. LEXIS 18103 (1st Cir. Aug. 13, 2009) (en banc): The question for the en banc court is whether the attorney work product doctrine shields from an IRS summons "tax accrual work papers" prepared by lawyers and others in Textron's Tax Department to support Textron's ...
From United States v. Textron, 2009 U.S. App. LEXIS 18103 (1st Cir. Aug. 13, 2009) (en banc): The question for the en banc court is whether the attorney work product doctrine shields from an IRS summons "tax accrual work papers"…
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Credit Crisis Litigation — ABA Litigation Section National Institute — October 23, 2009, New York

Download associated file: ABA Credit Crisis Litigation Institute.pdf  The ABA Section of Litigation is sponsoring a National Institute on Credit Crisis Litigation on Friday, October 23, 2009 at the New York Marriott (downtown). It should be an excellent program. The br ...
Download associated file: ABA Credit Crisis Litigation Institute.pdf  The ABA Section of Litigation is sponsoring a National Institute on Credit Crisis Litigation on Friday, October 23, 2009 at the New York Marriott (downtown). It should be an excellent program.…
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Email Authentication — The “Reply Letter” Doctrine Applied to Email

From Varkonyi v. State, 276 S.W.3d 27 (Tex. App. 2008): [A] letter is properly authenticated under [Texas] Rule [of Evidence] 901(b)(4) if its appearance, contents, substance, or other distinctive characteristics, taken in conjunction with circumstances, support a finding that the document is what its proponent claims. Tex.R.Evid. 901(b ...
From Varkonyi v. State, 276 S.W.3d 27 (Tex. App. 2008): [A] letter is properly authenticated under [Texas] Rule [of Evidence] 901(b)(4) if its appearance, contents, substance, or other distinctive characteristics, taken in conjunction with circumstances, support a finding that the…
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Effective 12/1/09, Immediate Summary Judgment Motions Permitted in Federal Court

By amendment to Federal Rule of Civil Procedure 56(c), effective December 1, 2009, the current prohibition against filing a summary judgment motion until 20 days have passed from the filing of the complaint will be eliminated. A summary judgment motion will be permitted until 30 days after the close of all discovery. Rule 56(c)(1) will provide:
By amendment to Federal Rule of Civil Procedure 56(c), effective December 1, 2009, the current prohibition against filing a summary judgment motion until 20 days have passed from the filing of the complaint will be eliminated. A summary judgment motion…
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Effective 12/1/09, Amendments to Pleadings Following Dismissal Motions Must Be Filed within 21 Days of Motion

Rule 15(a)(1)(B) will be amended as of December 1, 2009, to end the current ability of a party to amend a complaint at any time after dismissal motion has been filed. The amendment will be required within 21 days after service of a motion to dismiss, for a more definite statement or to strike. Rule 15(a)(1)(B) — Amending Pleading After Di ...
Rule 15(a)(1)(B) will be amended as of December 1, 2009, to end the current ability of a party to amend a complaint at any time after dismissal motion has been filed. The amendment will be required within 21 days after…
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Amended Complaint Containing Dismissed Claims Warrants Rule 11 Sanctions Even If It Also Contains New, Non-Frivolous Claims

From Rady Children's Hospital v. Service Employees International Union, Local 2028, 2008 U.S. Dist. LEXIS 109828 (N.D. Cal. May 5, 2008): It was not objectively reasonable for Plaintiff's counsel to refile its claims for breach of contract and declaratory relief. The Court previously dismissed these exact same claims and even w ...
From Rady Children’s Hospital v. Service Employees International Union, Local 2028, 2008 U.S. Dist. LEXIS 109828 (N.D. Cal. May 5, 2008): It was not objectively reasonable for Plaintiff’s counsel to refile its claims for breach of contract and declaratory relief.…
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Sanctions — General Objections Not Improper — Rule 37(c)(1) Inapt as to Lawyers — No Privilege Log for Post-Filing Communications — Parent Company Not Responsible for Subsidiary’s Sins — Improper for One Judge to Recharacterize Ruling of Another

From Grider v. Keystone Health Plan Central, Inc., 2009 U.S. App. LEXIS 19642 (3d Cir. Sept. 1, 2009): [Rule 26(g) — Substantial Justification and General Objections.] Rule 26(g) provides that an attorney will be sanctioned for noncompliance with that rule "[i]f without substantial justification a certification ...
From Grider v. Keystone Health Plan Central, Inc., 2009 U.S. App. LEXIS 19642 (3d Cir. Sept. 1, 2009): [Rule 26(g) — Substantial Justification and General Objections.] Rule 26(g) provides that an attorney will be sanctioned for noncompliance with that rule…
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New Article — Electronic Discovery and Other Problems

A new article prepared for the May 2010 Duke Conference being held by the Standing Committee on Rules of Practice and Procedure of the U.S. Judicial Conference has been posted on the Recent Articles page. It is focused primarily on electronic discovery problems not addressed by current rules and proposing solutions. It also suggests that, if one takes Tw ...
A new article prepared for the May 2010 Duke Conference being held by the Standing Committee on Rules of Practice and Procedure of the U.S. Judicial Conference has been posted on the Recent Articles page. It is focused primarily on…
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Second Circuit Declines to Extend Akin-to-Contempt/Bad Faith Standard for Sua Sponte Rule 11 Sanctions — Holds that PSLRA Trumps Pennie & Edmonds

Six years ago, in In re Pennie & Edmonds LLP, 323 F.3d 86 (2d Cir. 2003), a divided panel of the Second Circuit held that district courts imposing sua sponte sanctions under Rule 11 were required to make a finding of subjective bad faith before imposing sanctions. It is my view that the dissenting opinion of Judge Underhill was correct and that the holding ...
Six years ago, in In re Pennie & Edmonds LLP, 323 F.3d 86 (2d Cir. 2003), a divided panel of the Second Circuit held that district courts imposing sua sponte sanctions under Rule 11 were required to make a finding…
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RICO Post-Bridge: Someone Must Rely on Mail Fraud to Cause Plaintiff to Suffer RICO Injury

From Biggs v. Eaglewood Mortgage LLC, 2009 U.S. Dist. LEXIS 62275 (D. Md. Jan. 5, 2009): In their Amended Complaint, the Biggs asserted that in 2004, Countrywide, through its agents and/or co-conspirators, made false statements to induce them to execute loan documents converting their 5.25% fixed-rate home mortgage with Chase Manhattan Mo ...
From Biggs v. Eaglewood Mortgage LLC, 2009 U.S. Dist. LEXIS 62275 (D. Md. Jan. 5, 2009): In their Amended Complaint, the Biggs asserted that in 2004, Countrywide, through its agents and/or co-conspirators, made false statements to induce them to execute…
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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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