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

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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Arbitration — Fed.R.Civ.P. 60(b) May Be Invoked in District Court to Correct Certain Errors in Arbitration Awards

From AIG Baker Sterling Heights, LLC v. Am. Multi-Cinema, Inc., 2009 U.S. App. LEXIS 18639 (11th Cir. Aug. 18, 2009): Several years ago American Multi-Cinema, Inc. (American) arbitrated a tax dispute with AIG Baker Sterling Heights, LLC and A.B. Olathe II LP (collectively, Baker), from whom American leased space in shopping centers. The ...
From AIG Baker Sterling Heights, LLC v. Am. Multi-Cinema, Inc., 2009 U.S. App. LEXIS 18639 (11th Cir. Aug. 18, 2009): Several years ago American Multi-Cinema, Inc. (American) arbitrated a tax dispute with AIG Baker Sterling Heights, LLC and A.B. Olathe…
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Because of Reputational Impact, Sanction of Reprimand Is a Sufficient Deterrent without an Award of Attorneys’ Fees

From Gary v. Braddock Cemetery, 2009 U.S. App. LEXIS 12431 (3d Cir. June 8, 2009): Appellants ... argue that the District Court abused its discretion by declining to impose monetary sanctions because the mere public filing of the R&R [Report and Recommendations] is not sufficient to "deter baseless filings." Although we may well have bee ...
From Gary v. Braddock Cemetery, 2009 U.S. App. LEXIS 12431 (3d Cir. June 8, 2009): Appellants … argue that the District Court abused its discretion by declining to impose monetary sanctions because the mere public filing of the R&R [Report…
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Expert Testimony on “Zone of Insolvency” Rejected under Daubert as Unreliable — Phrase Has No Accepted Meaning and There Is No Accepted Methodology to Test It

From Kipperman v. Onex Corp., 2009 U.S. Dist. LEXIS 71666 (N.D. Ga. Aug. 13, 2009): Logue testified that ABCO/Magnatrax was in a "zone of insolvency" at the time of the ABCO and Republic acquisitions. *** Defendants contend that this testimony is inadmissible, in part, because there is no scientifically accepted definition of, or methodol ...
From Kipperman v. Onex Corp., 2009 U.S. Dist. LEXIS 71666 (N.D. Ga. Aug. 13, 2009): Logue testified that ABCO/Magnatrax was in a “zone of insolvency” at the time of the ABCO and Republic acquisitions. *** Defendants contend that this testimony…
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RICO/PSLRA Bar — Whether LLC Interests Constitute Securities = Fact Question — Measuring Time for 2-Year Continuity Requirement

From Automated Teller machine Advantage LLC v. Moore, 2009 U.S. Dist. LEXIS 68724 (S.D.N.Y. Aug. 6, 2009): [LLC Interests as Triggering PSLRA Bar] The PSLRA "bars private causes of action under RICO for predicate acts that describe conduct that would otherwise be actionable as securities fraud." Thomas H. Lee Equity F ...
From Automated Teller machine Advantage LLC v. Moore, 2009 U.S. Dist. LEXIS 68724 (S.D.N.Y. Aug. 6, 2009): [LLC Interests as Triggering PSLRA Bar] The PSLRA “bars private causes of action under RICO for predicate acts that describe conduct that would…
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Sarbanes-Oxley — Substantive Requirements Necessary to Establish a Whistleblower Claim

From Van Asdale v. Int’l Game Tech., 2009 U.S. App. LEXIS 18037 (9th Cir. Aug. 13, 2009): This case presents our first opportunity to examine the substantive requirements necessary to establish a claim under the whistleblower-protection provisions of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A. *** We observe at the outset that th ...
From Van Asdale v. Int’l Game Tech., 2009 U.S. App. LEXIS 18037 (9th Cir. Aug. 13, 2009): This case presents our first opportunity to examine the substantive requirements necessary to establish a claim under the whistleblower-protection provisions of the Sarbanes-Oxley…
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Specific Performance of Settlement Agreement

From Nordica S.p.A. v. ICON Health & Fitness, 2009 U.S. Dist. LEXIS 71385 (D.N.H. Aug. 11, 2009): Under both New Hampshire and Utah law, specific performance is an adequate remedy when one party is in breach of a settlement agreement. Poland v. Twomey, 937 A.2d 934, 937 (N.H. 2007) (specific performance is appropriate relief for ...
From Nordica S.p.A. v. ICON Health & Fitness, 2009 U.S. Dist. LEXIS 71385 (D.N.H. Aug. 11, 2009): Under both New Hampshire and Utah law, specific performance is an adequate remedy when one party is in breach of a settlement agreement.…
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Internet Printout of Immunization Schedule Unverified by Medical Professional Not Subject to Judicial Notice

From TR v. LVM, 209 P.3d 879 (Wyo. Sup. Ct. 2009): Appellant, T.R. (Mother), appeals a district court's decision and order finding her unfit and appointing Appellees, L.V.M. and A.R.M. (Grandparents), who are the children's paternal grandparents, guardians of her two minor children, A.R. and C.R. *** Mother first contends that th ...
From TR v. LVM, 209 P.3d 879 (Wyo. Sup. Ct. 2009): Appellant, T.R. (Mother), appeals a district court’s decision and order finding her unfit and appointing Appellees, L.V.M. and A.R.M. (Grandparents), who are the children’s paternal grandparents, guardians of her…
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Repeated Defragging May Constitute Spoliation — Defragging Destroys Evidence of Hard-Drive Wiping — Permissible vs. Impermissible Defragging

From Trustees of Chi. Plastering Institute v. Village of Elwood, 2009 U.S. Dist. LEXIS 42952 (N.D. Ill. May 20, 2009): Defendant hired an expert who admitted at her deposition that there were wiping programs installed on computers belonging to defendant Alberts and Donchez. She also admitted in her deposition that she could not ascertai ...
From Trustees of Chi. Plastering Institute v. Village of Elwood, 2009 U.S. Dist. LEXIS 42952 (N.D. Ill. May 20, 2009): Defendant hired an expert who admitted at her deposition that there were wiping programs installed on computers belonging to defendant…
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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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