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

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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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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Recent Posts

(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

FRAP 38 Sanctions for Frivolous Opposition to Arbitration

Extrinsic Fraud Exception to Rooker-Feldman — Where Defendants’ Perjury, False Evidence, Flawed Legal Arguments Prevented Plaintiffs from Presenting Their Claim in State Court

Federal Jurisdiction: Party Can Waive Subject Matter Jurisdiction — While Federal Courts Must Ensure They Do Not Lack Subject Matter Jurisdiction, There Is No Duty to Find and Exercise It

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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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