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

Effective 12/1/09, CAFA Typo re: Appeal Timing Fixed

28 U.S.C. § 1453 — the removal provision of the Class Action Fairness Act — confers a right of appeal of any remand order, providing that the defense must appeal “not less than 7 days after entry of the [remand] order.” Every Circuit to consider this language has ruled it is a typo — that not “less than” should read “not more than” because it wou ...
28 U.S.C. § 1453 — the removal provision of the Class Action Fairness Act — confers a right of appeal of any remand order, providing that the defense must appeal “not less than 7 days after entry of the [remand]…
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Spoliation — Adverse Inference Inadequate and Awkward in Bench Trial — Results of Testing Precluded at Trial and on Summary Judgment and Daubert Motions

From Innis Arden Golf Club v. Pitney Bowes, Inc., 2009 U.S. Dist. LEXIS 45828 (D. Conn. May 21, 2009) (after testing soil sediment, the samples were destroyed despite awareness of the prospect of litigation): Even if this course of conduct may not warrant outright dismissal, a severe sanction nevertheless is necessary, because overlooking ...
From Innis Arden Golf Club v. Pitney Bowes, Inc., 2009 U.S. Dist. LEXIS 45828 (D. Conn. May 21, 2009) (after testing soil sediment, the samples were destroyed despite awareness of the prospect of litigation): Even if this course of conduct…
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In Judging Futility of Amendment of Complaint, Court Considers All Possible Amendments, Not Just Proposed Amended Complaint — Standards for Denial of Leave to Amend and for Reconsideration Motion

From Panther Partners, Inc. v. Ikanos Commc’ns, Inc., 2009 U.S. App. LEXIS 20652 (2d Cir. Sept. 17, 2009): Leave to Amend We review denial of leave to amend under an "abuse of discretion" standard. *** First, it is well established that although leave to amend should be "freely given," Fed. R. Civ. P. 15(a), ther ...
From Panther Partners, Inc. v. Ikanos Commc’ns, Inc., 2009 U.S. App. LEXIS 20652 (2d Cir. Sept. 17, 2009): Leave to Amend We review denial of leave to amend under an “abuse of discretion” standard. *** First, it is well established…
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RICO — Direct vs. Derivative Injury — Shareholder in Close Corporation

From Siddle v. Crants, 2009 U.S. Dist. LEXIS 52997 (M.D. Tenn. June 18, 2009): From October 2001 thru October 2006, defendant Crants, Jr. was the Chairman, CEO and majority shareholder of Homeland Security Corporation (HSC). In 2003, his son, defendant Crants, III, acquired five percent ownership of HSC. During this time period, Crants, ...
From Siddle v. Crants, 2009 U.S. Dist. LEXIS 52997 (M.D. Tenn. June 18, 2009): From October 2001 thru October 2006, defendant Crants, Jr. was the Chairman, CEO and majority shareholder of Homeland Security Corporation (HSC). In 2003, his son, defendant…
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Internet, Cell Phones, Blogs, BlackBerrys — and Jurors

From Henri v. Curto, 908 N.E.2d 196, 202-03 (Ind. Sup. Ct. 2009): [P]ermitting jurors, other trial participants, and observers to retain or access mobile telephones or other electronic communication devices, while undoubtedly often helpful and convenient, is fraught with significant potential problems impacting the fair administration of ...
From Henri v. Curto, 908 N.E.2d 196, 202-03 (Ind. Sup. Ct. 2009): [P]ermitting jurors, other trial participants, and observers to retain or access mobile telephones or other electronic communication devices, while undoubtedly often helpful and convenient, is fraught with significant…
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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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Recent Posts

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

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

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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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