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

Absolute vs. Limited Protection for Opinion Work Product — Caselaw Split

From Monarch Fire Protection Dist. V. Freedom Consulting & Auditing Servs., Inc., 2009 U.S. Dist. LEXIS 60988 (E.D. Mo. July 16, 2009): The work product doctrine "is broader than and distinct from the attorney-client privilege." In re Foster, 188 F.3d 1259, 1272 (10th Cir. 1999) (citing United States v. Nobles, 42 U.S. 225, ...
From Monarch Fire Protection Dist. V. Freedom Consulting & Auditing Servs., Inc., 2009 U.S. Dist. LEXIS 60988 (E.D. Mo. July 16, 2009): The work product doctrine “is broader than and distinct from the attorney-client privilege.” In re Foster, 188 F.3d…
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Senate Bill Introduced to Reverse Twombly and Iqbal

Download associated file: Notice Pleading Restoration Act of 2009.pdf  Senator Arlen Specter has introduced the attached Notice Pleading Restoration Act of 2009, which would revive Conley v. Gibson as the sole standard pursuant to which 12(b)(6) motions could be de ...
Download associated file: Notice Pleading Restoration Act of 2009.pdf  Senator Arlen Specter has introduced the attached Notice Pleading Restoration Act of 2009, which would revive Conley v. Gibson as the sole standard pursuant to which 12(b)(6) motions could be…
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Second Circuit Recognizes that Initial Complaint May Warrant Sanctions under 28 U.S.C. § 1927

From Gollomp v. Spitzer, 568 F.3d 355 (2d Cir. 2009): As discussed above, the District Court made three findings of "conduct constituting or akin to bad faith," In re 60 E. 80th St. Equities, 218 F.3d at 115: (1) the "incredible" assertion by plaintiff's counsel that they had "researched all legal arguments and made no legal argum ...
From Gollomp v. Spitzer, 568 F.3d 355 (2d Cir. 2009): As discussed above, the District Court made three findings of “conduct constituting or akin to bad faith,” In re 60 E. 80th St. Equities, 218 F.3d at 115: (1) the…
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Waiver of Work Product Protection by Disclosure in Settlement Discussions — Waiver as to One Defendant Effects Waiver as to All

From In re Urethane Antitrust Litig., 2009 U.S. Dist. LEXIS 60496 (D. Kan. July 15, 2009): Work-product protection is waived when privileged documents are voluntarily disclosed to an adversary because "[d]isclosure to an adversary is clearly inconsistent with the rule's goal of promoting the adversarial system." "Such a waiver occurs eve ...
From In re Urethane Antitrust Litig., 2009 U.S. Dist. LEXIS 60496 (D. Kan. July 15, 2009): Work-product protection is waived when privileged documents are voluntarily disclosed to an adversary because “[d]isclosure to an adversary is clearly inconsistent with the rule’s…
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PSLRA Mandates Rule 11 Inquiry Even If Securities Litigation Dismissed on State Law Grounds — Circuit May Make Determination without Remand

From Citibank Global Markets, Inc. v. Santana, 2009 U.S. App. LEXIS 15788 (1st Cir. July 17, 2009): The final question we must resolve is one of first impression in this circuit: whether the district court is required to make findings regarding compliance with Rule 11(b) of the Federal Rules of Civil Procedure, in a case in which a claim ...
From Citibank Global Markets, Inc. v. Santana, 2009 U.S. App. LEXIS 15788 (1st Cir. July 17, 2009): The final question we must resolve is one of first impression in this circuit: whether the district court is required to make findings…
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Willful Disobedience of Court Order Warrants Case-Ending Sanction Where Obedience Is within the Party’s Control

From Pray v. Michaels, 2008 U.S. App. LEXIS 27190 (9th Cir. Dec. 17, 2008): [T]he district court did not abuse its discretion in using its inherent powers to impose terminating sanctions on [Defendant] Soderberg. Willful disobedience of a court order may justify terminating sanctions. See Stars' Desert Inn Hotel & Country Club, Inc. ...
From Pray v. Michaels, 2008 U.S. App. LEXIS 27190 (9th Cir. Dec. 17, 2008): [T]he district court did not abuse its discretion in using its inherent powers to impose terminating sanctions on [Defendant] Soderberg. Willful disobedience of a court order…
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Expert Testimony into State of Mind or Motivation of an Individual as Inadmissible

“Inferences about the intent or motive of parties or others lie outside the bounds of expert testimony.” Highland Capital Mgmt., L.P. v. Schneider, 551 F. Supp.2d 173, 182 (S.D.N.Y. 2008) (excluding an expert’s testimony regarding various individuals’ beliefs as to, inter alia, the value of the securities at issue in that case, and holding that “ ...
“Inferences about the intent or motive of parties or others lie outside the bounds of expert testimony.” Highland Capital Mgmt., L.P. v. Schneider, 551 F. Supp.2d 173, 182 (S.D.N.Y. 2008) (excluding an expert’s testimony regarding various individuals’ beliefs as to,…
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Inherent Power Sanctions — Appeal Dismissed for Appellant’s Failure to Pay Sanction Imposed in Prior Action

From Smith v. United States, 2009 U.S. App. LEXIS 14736 (10th Cir. July 6, 2009): We dismiss the matter for Mr. Smith's failure to pay the sanctions we imposed in Smith v. C.I.R., 160 Fed. Appx. 666, 670 (10th Cir. 2005). *** This court ... previously imposed sanctions for Mr. Smith's "blatant waste of judicial time a ...
From Smith v. United States, 2009 U.S. App. LEXIS 14736 (10th Cir. July 6, 2009): We dismiss the matter for Mr. Smith’s failure to pay the sanctions we imposed in Smith v. C.I.R., 160 Fed. Appx. 666, 670 (10th Cir.…
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Government Website as Self-Authenticating

From Schaghticoke Tribal Nation v. Kempthorne, 2008 WL 4000179, at *3 (D. Conn. Aug. 26, 2008) :Petitioner's Exhibit 31, the press release issued by Representative Christopher Shays on March 12, 2004, may also be considered self-authenticating. Press releases by government authorities may be self-authenticating under Rule 902(5) as offic ...
From Schaghticoke Tribal Nation v. Kempthorne, 2008 WL 4000179, at *3 (D. Conn. Aug. 26, 2008) :Petitioner’s Exhibit 31, the press release issued by Representative Christopher Shays on March 12, 2004, may also be considered self-authenticating. Press releases by government…
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Spoliation — Trigger Date for Preservation Duty — Timeliness of Motion

From Goodman v. Praxair Servs., Inc., 2009 U.S. Dist. LEXIS 58263 (D. Md. July 7, 2009): [Trigger Date.] The mere existence of a dispute does not necessarily mean that parties should reasonably anticipate litigation or that the duty to preserve arises. See Treppel v. Biovail Corp., 233 F.R.D. 363, 371 (S.D.N. ...
From Goodman v. Praxair Servs., Inc., 2009 U.S. Dist. LEXIS 58263 (D. Md. July 7, 2009): [Trigger Date.] The mere existence of a dispute does not necessarily mean that parties should reasonably anticipate litigation or that the duty to preserve…
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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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