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

Colorado Would Not Recognize an Independent Tort of Spoliation — Erie Prognosis

From Johnson v. Liberty Mut. Fire Ins. Co.,, 2009 U.S. Dist. LEXIS 79452 (D. Colo. Sept. 2, 2009): Having carefully considered the issue, this Court believes that, were the Colorado Supreme Court to consider the question, it would join the majority of jurisdictions that decline t[o] recognize a standalone tort claim for spoliation of evi ...
From Johnson v. Liberty Mut. Fire Ins. Co.,, 2009 U.S. Dist. LEXIS 79452 (D. Colo. Sept. 2, 2009): Having carefully considered the issue, this Court believes that, were the Colorado Supreme Court to consider the question, it would join the…
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Email — Business Practice as Business Duty for Business Records Exception Purposes

From Goss v. Tommy Burney Homes, Inc., 2009 Tenn. App. LEXIS 604 (Tenn. Ct. App. Sept. 2, 2009): The Gosses contend that the trial court erred in admitting the emails because TBH failed to prove that Ms. Barnes had a business duty to record or transmit the communications in question. We disagree. In laying the foundation for introducing ...
From Goss v. Tommy Burney Homes, Inc., 2009 Tenn. App. LEXIS 604 (Tenn. Ct. App. Sept. 2, 2009): The Gosses contend that the trial court erred in admitting the emails because TBH failed to prove that Ms. Barnes had a…
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Summary Exhibits — Calculations by Non-Expert Permitted under Federal Rule of Evidence 1006

From United States v. Hemphill, 514 F.3d 1350, 1358-59 (D.C. Cir. 2008): Next, Hemphill's challenge to the government's summary evidence is groundless. *** Rule 1006 of the Federal Rules of Evidence allows a party to introduce a chart summarizing "[t]he contents of voluminous writings . . . which cannot conveniently be examined in ...
From United States v. Hemphill, 514 F.3d 1350, 1358-59 (D.C. Cir. 2008): Next, Hemphill’s challenge to the government’s summary evidence is groundless. *** Rule 1006 of the Federal Rules of Evidence allows a party to introduce a chart summarizing “[t]he…
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Federal Jurisdiction — “Related to” Bankruptcy Jurisdiction under 28 U.S.C. § 157

From Lawrence v. Goldberg, 573 F.3d 1265 (11th Cir. 2009): Bankruptcy courts have jurisdiction to hear "any or all cases under title 11 and any or all proceedings arising under title 11 or arising in or related to a case under title 11," upon referral by a district court. 28 U.S.C. § 157(a) (2006). "'Arising under' proceedings are matt ...
From Lawrence v. Goldberg, 573 F.3d 1265 (11th Cir. 2009): Bankruptcy courts have jurisdiction to hear “any or all cases under title 11 and any or all proceedings arising under title 11 or arising in or related to a case…
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Computer-Generated Animation Offered to Depict Witnesses’ Memories Must be Authenticated as Accurate by Those Witnesses

From State v. Denton, 768 N.W.2d 250 (Wis. Ct. App. 2009): Contrary to the State’s assertions, the computer-generated animation was not simply a demonstrative exhibit-like a rough drawing on a chalkboard-used to illustrate a testifying lay witness's testimony.... Rather, as Ambach testified at trial, it was intended to depict the State's ...
From State v. Denton, 768 N.W.2d 250 (Wis. Ct. App. 2009): Contrary to the State’s assertions, the computer-generated animation was not simply a demonstrative exhibit-like a rough drawing on a chalkboard-used to illustrate a testifying lay witness’s testimony…. Rather, as…
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Spoliation — Just When Is Litigation “Reasonably Anticipated,” Triggering the Duty to Preserve Evidence?

From Dong Ah Tire & Rubber Co., Ltd. v. Glasforms, Inc., 2009 U.S. Dist. LEXIS 62668 (N.D. Cal. July 2, 2009): The Ninth Circuit has not expressly defined the term "anticipated litigation," Hynix Semiconductor Inc. v. Rambus, Inc., No. C-00-20905 RMW, 2006 WL 565893, at * 21, 24 (N.D. Cal. Jan. 5, 2006), and trial courts have craf ...
From Dong Ah Tire & Rubber Co., Ltd. v. Glasforms, Inc., 2009 U.S. Dist. LEXIS 62668 (N.D. Cal. July 2, 2009): The Ninth Circuit has not expressly defined the term “anticipated litigation,” Hynix Semiconductor Inc. v. Rambus, Inc., No. C-00-20905…
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§ 1927 Sanctions Imposed on Non-Lawyer, Pro Se Litigant

From Gitler v. State of Ohio, 2009 U.S. Dist. LEXIS 61295 (N.D. Ohio July 6, 2009): Although § 1927 on its face limits who may be sanctioned to an attorney or other person allowed to conduct cases, courts in the Sixth Circuit can sanction pro se litigants under that provision even after dismissing a case for lack of subject matter ...
From Gitler v. State of Ohio, 2009 U.S. Dist. LEXIS 61295 (N.D. Ohio July 6, 2009): Although § 1927 on its face limits who may be sanctioned to an attorney or other person allowed to conduct cases, courts in the…
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Scienter Required of Mail Fraud Predicate Precludes Certification of RICO Class Action

From Agostino v. Quest Diagnostics Inc., 2009 U.S. Dist. LEXIS 10451 (D.N.J. Feb. 11, 2009): To successfully prosecute a RICO claim, it is well settled that a plaintiff must make a showing regarding scienter. See United States v. Boyer, 694 F.2d 58, 60 (3d Cir. 1982) (specific intent to deceive requirement of 18 U.S.C. § 1341 may ...
From Agostino v. Quest Diagnostics Inc., 2009 U.S. Dist. LEXIS 10451 (D.N.J. Feb. 11, 2009): To successfully prosecute a RICO claim, it is well settled that a plaintiff must make a showing regarding scienter. See United States v. Boyer, 694…
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Electronic Discovery — Presumption against Production of Metadata vs. Specific Need

From Ojeda-Sanchez v. Bland Farms, LLC, 2009 U.S. Dist. LEXIS 66238 (S.D. Ga. July 31, 2009): Defendants do not object to the production of the information in their databases, just their metadata. *** Defendants rely upon Kentucky Speedway, LLC v. National Ass'n of Stock Car AutoRacing, Inc., 2006 WL 5097354 (E.D. Ky. ...
From Ojeda-Sanchez v. Bland Farms, LLC, 2009 U.S. Dist. LEXIS 66238 (S.D. Ga. July 31, 2009): Defendants do not object to the production of the information in their databases, just their metadata. *** Defendants rely upon Kentucky Speedway, LLC v.…
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In Multiparty Action, Supplemental Jurisdiction Retained over One Defendant as to Whom All Federal Claims Have Been Dismissed Where State Claims Are Related to the Federal Claims Against Other Defendants — PSLRA RICO Bar

From Armstrong v. Am. Pallet Leasing, Inc., 2009 U.S. Dist. LEXIS 77138 (N.D. Iowa Aug. 26, 2009): The court is confronted in this case with a myriad of claims brought under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), both the Securities Act of 1933 and the Securities Exchange Act of 1934, as well as several state law ...
From Armstrong v. Am. Pallet Leasing, Inc., 2009 U.S. Dist. LEXIS 77138 (N.D. Iowa Aug. 26, 2009): The court is confronted in this case with a myriad of claims brought under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), both…
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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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