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

D.C. Circuit Declines to Decide whether Sua Sponte Sanctions May Issue Only in Circumstances “Akin to Contempt” — Lingering Circuit Split

From Lucas v. Duncan, 574 F.3d 772 (D.C. Cir. 2009): Although both Karl and the Department of Education agree that this court should review the magistrate judge's order for abuse of discretion with particular care, ... they disagree as to the substantive standard that the judge should himself have applied. Karl notes that Rule 11(c)(2), ...
From Lucas v. Duncan, 574 F.3d 772 (D.C. Cir. 2009): Although both Karl and the Department of Education agree that this court should review the magistrate judge’s order for abuse of discretion with particular care, … they disagree as to…
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RICO — Whistleblower’s Firing Not Caused by RICO Violations about Which He Blew the Whistle

From Donnelli v. County of Sullivan, 2009 U.S. Dist. LEXIS 66994 (S.D.N.Y. July 31, 2009): The gist of the plaintiffs' RICO claim is that the defendants were involved in an enterprise that entailed the purchase of heavy duty highway maintenance equipment in the name of Sullivan County and the illegal appropriation of such equipment for pe ...
From Donnelli v. County of Sullivan, 2009 U.S. Dist. LEXIS 66994 (S.D.N.Y. July 31, 2009): The gist of the plaintiffs’ RICO claim is that the defendants were involved in an enterprise that entailed the purchase of heavy duty highway maintenance…
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Mere Request in Brief for Leave to Amend, without Motion, Justifies Denial — As Does Subsequent Failure to File Proposed Amendment in District Court

From In re Novastar Fin. Inc. Secs. Litg., 2009 U.S. App. LEXIS 19634 (8th Cir. Sept. 1, 2009): "Although leave to amend 'shall be freely given when justice so requires,' see Fed. R. Civ. P. 15(a), plaintiffs do not have an absolute or automatic right to amend." U.S. ex rel. Lee v. Fairview Health Sys., 413 F.3d 748, 749 ( ...
From In re Novastar Fin. Inc. Secs. Litg., 2009 U.S. App. LEXIS 19634 (8th Cir. Sept. 1, 2009): “Although leave to amend ‘shall be freely given when justice so requires,’ see Fed. R. Civ. P. 15(a), plaintiffs do not have…
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Securities — No First Amendment or N.Y. Times v. Sullivan Protections for Allegedly Fraudulent Statements

From SEC v. Pirate Investor LLC, 2009 U.S. App. LEXIS 20455 (4th Cir. Sept. 15, 2009): In challenging the district court's scienter determination, Appellants contend that the First Amendment protections recognized by the Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), apply to ...
From SEC v. Pirate Investor LLC, 2009 U.S. App. LEXIS 20455 (4th Cir. Sept. 15, 2009): In challenging the district court’s scienter determination, Appellants contend that the First Amendment protections recognized by the Supreme Court in New York Times Co.…
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Experts and Summary Judgment — Competing Threads of Decision

Does an expert opinion -- or do conflicting expert opinions -- create a fact issue precluding summary judgment? Fact Issue Created • Harris v. Provident Life & Accident Ins. Co., 310 F.3d 73, 79 (2d Cir. 2002): “Where, as here, there are conflicting expert reports presented, courts are wary of granting summary judg ...
Does an expert opinion — or do conflicting expert opinions — create a fact issue precluding summary judgment? Fact Issue Created • Harris v. Provident Life & Accident Ins. Co., 310 F.3d 73, 79 (2d Cir. 2002): “Where, as here,…
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“Corporate Disclosure of ‘Facts’” without Waiving Attorney-Client Privilege or Work Product Protection — Paper authored by Professor Bruce Green for ABA Task Force on Attorney-Client Privilege

Download associated file: Bruce Green Disclosure of Facts without Waiver.pdf  Bruce Green, the distinguished Louis Stein Professor of Law at Fordham Law School and the Director of the S ...
Download associated file: Bruce Green Disclosure of Facts without Waiver.pdf  Bruce Green, the distinguished Louis Stein Professor of Law at Fordham Law School and the Director of the Stein Center of Law and Ethics, has written an excellent,…
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Noerr-Pennington Doctrine Applies to Government’s Condemnation Litigation, Including Discovery Conduct — Protection Extends to Counsel — Sham Exception Applies Even If Plaintiff was Not Diligent in Seeking to Uncover Sham

The plaintiff Kearney v. Foley & Lardner, LLP, 2009 U.S. App. LEXIS 20950 (9th Cir. Sept. 18, 2009) alleged that, in a prior state court condemnation proceeding, the condemning governmental entity and its counsel falsely denied the existence of, and failed to produce in discovery, test results that bore directly on the value of the property. The governmental ...
The plaintiff Kearney v. Foley & Lardner, LLP, 2009 U.S. App. LEXIS 20950 (9th Cir. Sept. 18, 2009) alleged that, in a prior state court condemnation proceeding, the condemning governmental entity and its counsel falsely denied the existence of, and…
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Name Partners at P.C. Not Liable as Fiduciaries for Other Lawyer’s Pillaging of IOLA Account — Violation of Disciplinary Rules Isn’t Necessarily Evidence of Negligence — N.Y. Bus. Corp. L. § 1505 Imposes No Duties on Lawyers in PC Not Representin

From Gianoukas v. Campitiello, 2009 U.S. Dist. LEXIS 95354 (S.D.N.Y. Oct. 13, 2009): Levy and Boonshoft are lawyers and officers of L&B, a New York professional services corporation. (Amended Complaint.... At times relevant to this action, Campitiello, who is also a lawyer, was a partner in, and employed by, L&B.... The Amended Complaint ...
From Gianoukas v. Campitiello, 2009 U.S. Dist. LEXIS 95354 (S.D.N.Y. Oct. 13, 2009): Levy and Boonshoft are lawyers and officers of L&B, a New York professional services corporation. (Amended Complaint…. At times relevant to this action, Campitiello, who is also…
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Bank of America Privilege Waiver Order — Not Authorized by Federal Rule of Evidence 502

Download associated file: B of A Waiver Order.pdf  The Southern District Judge presiding over the SEC/Bank of America action entered the selective waiver order drafted by counsel for Bank of America and the Securities and Exchange Commission (attached). In my view, it d ...
Download associated file: B of A Waiver Order.pdf  The Southern District Judge presiding over the SEC/Bank of America action entered the selective waiver order drafted by counsel for Bank of America and the Securities and Exchange Commission (attached). In…
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Abuse of Discretion & Experts — That Court 1 Is Affirmed in Admitting Certain Expert Testimony as Helpful to the Jury Does Not Mean that Court 2 Erred in Excluding Essentially the Same Testimony as Unnecessary to Assist Another Jury

From North American Specialty Ins. Co. v. Britt Paulk Ins. Agency, Inc., 579 F.3d 1106 (10th Cir. 2009): Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), establishes a two-part test for admission of expert testimony under Federal Rule of Evidence 702. First, evidence must be r ...
From North American Specialty Ins. Co. v. Britt Paulk Ins. Agency, Inc., 579 F.3d 1106 (10th Cir. 2009): Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), establishes a two-part…
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Recent Posts

Rule 37 Discovery Sanctions: Ninth Circuit’s Five-Factor Test for Gauging Appropriateness of Dismissal — The Limited Utility of Rule 12(f) Motions to Strike

RICO: Employer Suffered Harm to Business or Propoerty When Kickbacks Paid to Employees in Real Estate Transactions Done for Employer — Expert Testimony Sufficient to Prove Harm — Proof That Employer Paid Above-Market Prices Not Essential — Non-Disclosure of Certain Damages in Initial Disclosures Cured by Expert Report, Which Also Rendered Initial Non-Disclosure Harmless

Spoliation: Dismissal Under Rule 37(e)(2) and Monetary Sanctions Under Rule 37(e)(1), Implicitly Reading The “Or” Between 37(e)(1) and 37(e)(2) As Conjunctive, Not Disjunctive — Clear Error Standard of Review for District Court’s Intent (= Bad Faith) Finding under 37(e)(2)(C) — Additional Monetary Sanctions Imposed on Claimants under 28 U.S.C. § 1927 and Rule 37(a)(5) — No Right to Jury Determination of Intent under Rule 37(e)(2) — “Substantially Justified” in Rule 37(a)(5) Has Same Meaning As In Equal Access to Justice Act and Thus Rule 11 — Meaning of “Unreasonable and Vexatious” in 7th Circuit

Inherent Power Sanction of Dismissal — Preponderance of the Evidence Burden of Proof, Not Clear and Convincing Evidence (7th Circuit)

§ 1927 Sanctions — Must A Lawyer Who Unreasonably and Vexatiously Multiplies Federal Court Proceedings Be Acting “As An Attorney” When Committing the Misconduct To Be Subject to Sanction under § 1927?

Rule 37 Sanctions — Unfamiliarity With Litigation Process Does Not Excuse Intentional Disregard of Court Order — Also Affirming Rule 26(g) Sanctions on Clients and Counsel for False Representations That All Responsive Documents Had Been Produced

Supreme Court: Notice of Appeal Filed After The Original Deadline But Before Reopening by The District Court Is Timely — It Relates Forward to The Date of The Order Making The Appeal Possible — Second Notice of Appeal After Reopening Unnecessary

Rule 37 Default Judgment: Second Circuit’s Four-Factor Test for Imposing Defaults and Three-Factor Test for Lifting Them

Rule 37 Default Judgment — Tenth Circuit Multifactor Test Is Not Exhaustive But a Non-Exclusive List of “Sometimes-Helpful Criteria Or Guide Posts”— Appeal from Preliminary Injunction Mooted by Entry of Permanent Injunction — Difficulty in Collecting Damages Award May Equal Irreparable Injury — A Monetary Award For Past Conduct Does Not Preclude A Permanent Injunction Against Similar Wrongful Conduct Likely To Occur In The Future

RICO: Cover-Up Within Limitations Period of Untimely RICO Violation “Was Merely A Continuation” Of The Original Injury And Could Not Be Used “As A ‘Bootstrap’ To Salvage [The] Time-Barred Claims–Declining to Apply Pinkerton Doctrine to Civil RICO Claims

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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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