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

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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Summary Judgment Granted to Plaintiff on Champerty Claim — Expert Opinion as to Law Barred

From Del Webb Communities, Inc. v. Partington, 2009 U.S. Dist. LEXIS 85616 (D. Nev. Sept. 18, 2009): MAINTENANCE AND CHAMPERTY Both parties have moved for summary judgment as to Del Webb's claims for maintenance and champerty. Maintenance and champerty are closely related common law doctrines. Maintenance "is ...
From Del Webb Communities, Inc. v. Partington, 2009 U.S. Dist. LEXIS 85616 (D. Nev. Sept. 18, 2009): MAINTENANCE AND CHAMPERTY Both parties have moved for summary judgment as to Del Webb’s claims for maintenance and champerty. Maintenance and champerty are…
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Sanctions — Refusal to Hold Law Firm Vicariously Liable Upheld — No Interest on Award Despite Seven Year Delay in Issuing Sanctions Where Interest Not Requested in Motion

In Rents v. Dynasty Apparel Indus., 2009 U.S. App. LEXIS 2623 (6th Cir. Feb. 11, 2009), the court found that there was no factual basis for the claims asserted against certain defendants (the Warfield Defendants). The plaintiff was not sanctioned because he did not distort the facts and was not blamed for his lawyers’ pursuit of mixed claims of law and fac ...
In Rents v. Dynasty Apparel Indus., 2009 U.S. App. LEXIS 2623 (6th Cir. Feb. 11, 2009), the court found that there was no factual basis for the claims asserted against certain defendants (the Warfield Defendants). The plaintiff was not sanctioned…
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Spoliation — Bribery and Intimidation of Witness by Third Party Is Spoliation If Attributable to Party, and Evidence Not Precluded by Rule 404(b)

From Holloway v. Trombly, 2009 U.S. Dist. LEXIS 8439 (E.D. Mich. Feb. 3, 2009), a habeas corpus proceeding: Barbee [the victim] said at trial that he was worried and scared and did not want to testify. He explained that on the morning of the preliminary examination, an unknown gunman appeared on his porch, although he did not know if th ...
From Holloway v. Trombly, 2009 U.S. Dist. LEXIS 8439 (E.D. Mich. Feb. 3, 2009), a habeas corpus proceeding: Barbee [the victim] said at trial that he was worried and scared and did not want to testify. He explained that on…
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RICO — § 1962(b) Requirements — Inadequacy of 18 U.S.C. § 1346, Alone, as a Predicate Act

From Adams v. County of Erie, 2009 U.S. Dist. LEXIS 87289 (W.D. Pa. Sept. 23, 2009): To establish a claim under § 1962(b), the Plaintiff must allege an injury from the Defendants' acquisition or control of an interest in a RICO enterprise, in addition to injury from the predicate acts. Lightening Lube, Inc. v. Witco Corp., 4 F.3d ...
From Adams v. County of Erie, 2009 U.S. Dist. LEXIS 87289 (W.D. Pa. Sept. 23, 2009): To establish a claim under § 1962(b), the Plaintiff must allege an injury from the Defendants’ acquisition or control of an interest in a…
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Email Authentication — Recipient’s Testimony Sufficient — No Rule 37(c)(1) Prejudice from 26(a)(1) Nondisclosure of Person Actually Deposed

From U.S. EEOC v. Olsten Staffing Servs. Corp., 2009 U.S. Dist. LEXIS 88903 (W.D. Wis. Sept. 28, 2009): The EEOC authenticates the e-mail through the testimony of Sue Horne, who is the human resources manager for Main Street Ingredients and who personally retrieved the e-mail from Main Street's computer. Olsten argues that only the
From U.S. EEOC v. Olsten Staffing Servs. Corp., 2009 U.S. Dist. LEXIS 88903 (W.D. Wis. Sept. 28, 2009): The EEOC authenticates the e-mail through the testimony of Sue Horne, who is the human resources manager for Main Street Ingredients and…
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§ 1404(a) Transfer of Venue — Location of Physical Evidence Remains a Relevant Consideration Even in the Age of Electronic Discovery

From Novartis Vaccines and Diagnostics, Inc. v. Bayer Healthcare LLC, 2009 U.S. Dist. LEXIS 89117 (E.D. Tex. Sept. 28, 2009): That access to some sources of proof presents a lesser inconvenience now than it might have absent recent developments does not render this factor superfluous." [Volkswagen of America, Inc., 545 F.3d 304, 3 ...
From Novartis Vaccines and Diagnostics, Inc. v. Bayer Healthcare LLC, 2009 U.S. Dist. LEXIS 89117 (E.D. Tex. Sept. 28, 2009): That access to some sources of proof presents a lesser inconvenience now than it might have absent recent developments does…
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Effect of Corporate Counsel’s Failure to Document Upjohn Warning Is Privilege — Ninth Circuit Declines to Adopt Special Test for Assessing Whether Officer’s Statement to Corporate Counsel Is Privileged and, If So, Whether Company May Waive It

From United States v. Ruehle, 2009 U.S. App. LEXIS 21450 (9th Cir. Sept. 30, 2009) (Irell is corporate counsel for Broadcom, and Ruehle was the CFO of the Company at the time of Irell’s internal investigation): [Failure to Document Upjohn Warnings] [Footnote 3] At the evidentiary hearing the Irell attorneys t ...
From United States v. Ruehle, 2009 U.S. App. LEXIS 21450 (9th Cir. Sept. 30, 2009) (Irell is corporate counsel for Broadcom, and Ruehle was the CFO of the Company at the time of Irell’s internal investigation): [Failure to Document Upjohn…
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Does a Forum Selection Clause that Specifies a Particular County — But Not a Court System — Confer Jurisdiction on the Federal District Court that Encompasses, But Is Not Located in, the County? Circuit Split

From Nahigian v. Juno-Louduon, LLC, 2009 U.S. Dist. LEXIS 89133 (E.D. Va. Sept. 28, 2008): [Geographic vs. Sovereign Restriction] The Agreement provides that: "In connection with any litigation between Buyer and Seller arising out of this Agreement . . . [t]he sole venue for any litigation shall be Loudoun County, Vir ...
From Nahigian v. Juno-Louduon, LLC, 2009 U.S. Dist. LEXIS 89133 (E.D. Va. Sept. 28, 2008): [Geographic vs. Sovereign Restriction] The Agreement provides that: “In connection with any litigation between Buyer and Seller arising out of this Agreement . . .…
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Erie May Trump Deferral to Federal Precedent Construing State Law

From Rutherford Columbia Gas, 575 F.3d 616 (6th Cir. 2009) (dissenting opinion): In certain cases, our "duty" to properly determine and apply state law comes into conflict with the interests that normally would support our deferring to prior precedent. In such cases, some courts have recognized that the obligation to properly determine ...
From Rutherford Columbia Gas, 575 F.3d 616 (6th Cir. 2009) (dissenting opinion): In certain cases, our “duty” to properly determine and apply state law comes into conflict with the interests that normally would support our deferring to prior precedent. In…
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Recent Posts

Rule 11 (9011) and Inherent Power Sanctions for “Unapologetic [Refusal to Apologize] Defiance” of Court’s Rules and Orders — Advising Client to Take Steps That Same Judge Had Told Lawyer Were Improper in Prior Case — Obstinate Recidivism — Silence upon Withdrawal of Motion As Rule 11 (9011) Violation (Noted But Not Addressed on Appeal)

Rule 37 Sanctions Properly Denied for Failure to Produce Documents That Were Already in the Requester’s Possession And Were Not Relevant to The Principal Issue in the Lawsuit — Experts/Daubert: Exclusion Appropriate Where Opinion Was Predicated on Erroneous Assumptions of Law

Supreme Court: Obtaining a Preliminary Injunction Does Not Render the Plaintiff a “Prevailing Party” Entitled to Attorney’s Fees — Must Win “Enduring Relief” On The Merits From A Judicial Order — Extraneous Events, Like Legislation, That Preserve The Outcome And Moot The Lawsuit Do Not Turn The Plaintiff into A Prevailing Party (Note, However, That A Defendant Need Not Obtain A Favorable Judgment On The Merits In Order To Be A “Prevailing Party”)

Supreme Court: When A Plaintiff Amends The Complaint To Delete The Federal-Law Claims That Enabled Removal To Federal Court, Leaving Only State-Law Claims, The Federal Court Loses Supplemental Jurisdiction, And The Case Must Be Remanded To State Court

Supreme Court: A Rule 41(a) Voluntary Dismissal Without Prejudice = A Final Proceeding Within Rule 60(b) — Advisory Committee Notes Are “A Reliable Source Of Insight Into The Meaning Of A Rule” — Prior to Dismissal or Entry of Judgment, A District Court May Always Rehear and Reconsider Prior Rulings

Rule 37(c)(1) Sanctions — Exclusion of Untimely Expert Report — Burden Is On Noncompliant Party to Prove Harmlessness — Court Need Not Hold Hearing If Noncompliant Party Fails to Argue Harmlessness, Even When Exclusion Is Tantamount to Dismissal

RICO: (1) Continuity: 4th Circuit Factors — (2) 4th Circuit Reserves RICO Liability for Unlawful Activities That Pose A Special Threat to Social Well-Being — (3) For Purposes of Determining Closed-Ended Continuity, Even Time-Barred Conduct Considered — (4) No Open-Ended Continuity If Racketeering Activity Has Built-In Ending Point — (5) Unlike General Federal Conspiracy, RICO Conspiracy Doesn’t Require Each Defendant to Perform an Overt Act in Furtherance of the Conspiracy

Whether Party Waived Arbitration by Litigating Is a Question for the Court, Not the Arbitrator

RICO: (1) Assignability of RICO Claims Uncertain — (2) Declining to Decide Whether Indirect-Purchaser Rule Applies to RICO (Given the Directness Requirement, How Much Does It Matter?) — (3) Two Types of Directness of Injury in Proximate Cause Analysis — (4) Proximate Cause As a Court Not Jury Issue in the First Instance

(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

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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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