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

Inherent Power Sanction — Case Dismissed for Disclosing Document Produced Pursuant to “Attorneys’ Eyes Only” Agreement before Protective Order Entered — Irrelevant Whether the Document was Entitled to Protection Under Later-Entered Order

From Salmeron v. Enterprise Recovery Sys., Inc., 2009 U.S. App. LEXIS 19316 (7th Cir. Aug. 27, 2009): On June 24, defendants USA Funds, Sallie Mae, and ERS learned that a scanned copy of the confidential document containing the Guarantee Services Agreement between Sallie Mae and USA Funds had been posted on a website known as Wikileaks.or ...
From Salmeron v. Enterprise Recovery Sys., Inc., 2009 U.S. App. LEXIS 19316 (7th Cir. Aug. 27, 2009): On June 24, defendants USA Funds, Sallie Mae, and ERS learned that a scanned copy of the confidential document containing the Guarantee Services…
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In New York State Court, Requesting Party Presumptively Must Bear the Cost of Electronic Discovery, Like All Other

From T.A. Ahern Contr. Corp. v. Dormitory Auth. of State of N.Y., 24 Misc. 3d 416, 875 N.Y.S.2d 862 (Sup. Ct. N.Y. County Mar. 19, 2009): Turning now to the issue of electronic discovery, New York courts have held that raw computer data or electronic documents are discoverable (see Lipco Elec. Corp. v. ASG Consulting Corp., 4 Misc ...
From T.A. Ahern Contr. Corp. v. Dormitory Auth. of State of N.Y., 24 Misc. 3d 416, 875 N.Y.S.2d 862 (Sup. Ct. N.Y. County Mar. 19, 2009): Turning now to the issue of electronic discovery, New York courts have held that…
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Sanctions for Filing Claims Despite Prior Warnings and Court Orders — Recidivism — Client Who Could Not be Sanctioned for Frivolous Legal Claims Sanctioned for Improper Purpose — Prior Sanctions Award as a Benchmark

From Janky v. Batistatos, 2009 U.S. Dist. LEXIS 66680 (N.D. Ind. July 31, 2009): [Ignoring Prior Warnings and Court Orders.] [Plaintiff] Janky and her counsel apparently became convinced that Defendant's arguments were bogus. But they were informed, many times, that this wasn't the case. In the face of those multiple order ...
From Janky v. Batistatos, 2009 U.S. Dist. LEXIS 66680 (N.D. Ind. July 31, 2009): [Ignoring Prior Warnings and Court Orders.] [Plaintiff] Janky and her counsel apparently became convinced that Defendant’s arguments were bogus. But they were informed, many times, that…
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Attorneys’ Fees and Cost of Defense of RICO-Violative Prosecution Afford Standing, But Embarrassment, Humiliation and Inconvenience ≠ RICO Injury

Attorneys' Fees and Cost of Defense of RICO-Violative Prosecution Afford Standing, But Embarrassment, Humiliation and Inconvenience ≠ RICO Injury From Kilper v. City of Arnold, 2009 U.S. Dist. LEXIS 63471 (E.D. Mo. July 23, 2009): The Red Light Camera Ordinance. In June 2005, City passed Bill No. 2102 enacting the original Ord ...
Attorneys’ Fees and Cost of Defense of RICO-Violative Prosecution Afford Standing, But Embarrassment, Humiliation and Inconvenience ≠ RICO Injury From Kilper v. City of Arnold, 2009 U.S. Dist. LEXIS 63471 (E.D. Mo. July 23, 2009): The Red Light Camera Ordinance.…
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Circumstantial Authentication of Email Evidence — Admission that Emails Were Sent + Content of Emails + Email Address Tied to Recipient by His Business Website

The defendant in United States v. Lane, 2009 U.S. Dist. LEXIS 65828 (S.D. Cal. July 27, 2009), was the second one scheduled for trial for conspiracy to commit kidnapping. The other defendant, Carman, had already been convicted of conspiracy to kidnap Lane’s ex-girlfriend, Kristi: The Government seeks to admit at trial emails found on C ...
The defendant in United States v. Lane, 2009 U.S. Dist. LEXIS 65828 (S.D. Cal. July 27, 2009), was the second one scheduled for trial for conspiracy to commit kidnapping. The other defendant, Carman, had already been convicted of conspiracy to…
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Rule 11 Motion Served 4 Days Before Pending Summary Judgment Motion Granted Rejected Because 21-Day Safe Harbor Period Not Afforded

From Orenshteyn v. Citrix Sys., Inc., 2009 U.S. App. LEXIS 16403 (Fed. Cir. July 24, 2009): On May 20, 2003, four days after Citrix served Fink with its motion for sanctions, the district court granted Citrix's motion for summary judgment of noninfringement.*** On June 19, 2003, Citrix filed its motion for sanctions under Rule 11 ...
From Orenshteyn v. Citrix Sys., Inc., 2009 U.S. App. LEXIS 16403 (Fed. Cir. July 24, 2009): On May 20, 2003, four days after Citrix served Fink with its motion for sanctions, the district court granted Citrix’s motion for summary judgment…
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Email from Senior Agency Executive Admissible as Admission by a Party Opponent in Action against the Government

From Moreno v. United States, 2009 U.S. Claims LEXIS 266 (Cl. Ct. July 27, 2009): The plaintiffs, current and former employees of the United States Department of Homeland Security ("DHS") and one former employee of the United States Immigration and Naturalization Service ("INS") (Arturo Moreno ("Mr. Moreno"), the named plaintiff in the ca ...
From Moreno v. United States, 2009 U.S. Claims LEXIS 266 (Cl. Ct. July 27, 2009): The plaintiffs, current and former employees of the United States Department of Homeland Security (“DHS”) and one former employee of the United States Immigration and…
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Website Authentication — WHOis Search Held Inadequate to Prove Ownership of Website

From Nordica S.p.A. v. ICON Health & Fitness, 2009 U.S. Dist. LEXIS 71385 (D.N.H. Aug. 11, 2009): The alleged printouts from nordictrack.com, although also inadmissible at present, are considerably further along the road toward admission. Nordica submits an affidavit from Chloe A. Hecht, ... as well as a WHOIS report showing that nordict ...
From Nordica S.p.A. v. ICON Health & Fitness, 2009 U.S. Dist. LEXIS 71385 (D.N.H. Aug. 11, 2009): The alleged printouts from nordictrack.com, although also inadmissible at present, are considerably further along the road toward admission. Nordica submits an affidavit from…
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Corporate Attorney-Client Privilege — When an Asset Transfer Conveys the Privilege

From MacKenzie-Childs LLC v. Rowland, 2009 U.S. Dist. LEXIS 71777 (W.D.N.Y. Aug. 14, 2009): Because corporations may only act through representatives, "any privilege that attaches to communications on corporate matters between corporate employees and corporate counsel belongs to the corporation, not to the individual employee[;] employees ...
From MacKenzie-Childs LLC v. Rowland, 2009 U.S. Dist. LEXIS 71777 (W.D.N.Y. Aug. 14, 2009): Because corporations may only act through representatives, “any privilege that attaches to communications on corporate matters between corporate employees and corporate counsel belongs to the corporation,…
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Appeals — Issues Not Considered: (1) First Impression Raised Initially in Reply Brief; (2) Identified in Notice of Appeal but Not Briefed; or (3) Briefed Merely by Incorporating by Reference Arguments Made in District Court

Three cases: • United States v. Jenkins, 2009 U.S. App. LEXIS 17221 (8th Cir. Aug. 4, 2009): In her reply brief and at oral argument, Jenkins argued that her conviction of aggravated identity theft cannot stand because the government did not charge her with access device fraud. Without separate counts and ...
Three cases: • United States v. Jenkins, 2009 U.S. App. LEXIS 17221 (8th Cir. Aug. 4, 2009): In her reply brief and at oral argument, Jenkins argued that her conviction of aggravated identity theft cannot stand because the government did…
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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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