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

Work Product Protection Waived by Contract — Waiver of Privilege vs. Waiver of Work Product

From Bowman v. Am. Homecare Supply, LLC, 2009 U.S. Dist. LEXIS 54195 (E.D. Pa. June 25, 2009): The issue presented concerns the extent to which the attorney work product must be disclosed in an indemnification claim, arising out of the settlement of underlying litigation. Pending before this Court is Defendant American Homecare Supply's ...
From Bowman v. Am. Homecare Supply, LLC, 2009 U.S. Dist. LEXIS 54195 (E.D. Pa. June 25, 2009): The issue presented concerns the extent to which the attorney work product must be disclosed in an indemnification claim, arising out of the…
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RICO — Same Act Cannot Constitute Both Predicate Offense and Requisite Investment within § 1962(a), as Investment Injury Must Be Distinct from Pattern Injury

From Guy’s Mechanical Sys., Inc., v. FIA Card Servs., N.A., 2009 U.S. App. LEXIS 14065 (3d Cir. June 22, 2009) (unpublished): GMSI is a small company in western Pennsylvania that performs mechanical contracting services. Its principal owner, Wilbur Guy, has a credit card account with FIA that he mainly uses for business purchases. GMS ...
From Guy’s Mechanical Sys., Inc., v. FIA Card Servs., N.A., 2009 U.S. App. LEXIS 14065 (3d Cir. June 22, 2009) (unpublished): GMSI is a small company in western Pennsylvania that performs mechanical contracting services. Its principal owner, Wilbur Guy, has…
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New York Recognizes a Claim for Fraudulent Misrepresentation and Concealment Based on Intentional Spoliation by Third Party Subpoena Recipient Even Though State Rejects an Independent Tort of Third-Party Negligent Spoliation

From IDT Corp. v. Morgan Stanley Dean Witter & Co. 2009 NY Slip Op 5253, 2009 N.Y. App. Div. LEXIS 5167 (1st Dept. June 25, 2009): The issue on this appeal is whether cognizable claims for fraudulent misrepresentation and fraudulent concealment may be based on intentional spoliation of evidence, notwithstanding that New York does not r ...
From IDT Corp. v. Morgan Stanley Dean Witter & Co. 2009 NY Slip Op 5253, 2009 N.Y. App. Div. LEXIS 5167 (1st Dept. June 25, 2009): The issue on this appeal is whether cognizable claims for fraudulent misrepresentation and fraudulent…
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When May a District Court Abstain from Entertaining a Declaratory Judgment Action that Includes a Claim for Monetary Relief? Circuit Split over Wilton/Brillhart Doctrine

From R.R. Street & Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA., 2009 U.S. App. LEXIS 13780 (7th Cir. June 25, 2009): Under what is known as the Wilton/Brillhart abstention doctrine, district courts possess significant discretion to dismiss or stay claims seeking declaratory relief, even though they have subject matte ...
From R.R. Street & Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA., 2009 U.S. App. LEXIS 13780 (7th Cir. June 25, 2009): Under what is known as the Wilton/Brillhart abstention doctrine, district courts possess significant discretion to dismiss…
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Improper Ex Parte Correspondence with Court — Intended to Influence Proceedings — Is a Sanctionable “Other Paper” within Rule 11

From Pritchard v. Dow Agro Sciences, 2009 U.S. Dist. LEXIS 53905 (W.D. Pa. June 25, 2009): The instant dispute arose from Plaintiff Robert Ted Pritchard's ("Mr. Pritchard") numerous ex parte communications with the Court and his dissemination of a letter containing allegedly defamatory communications regarding his former counsel an ...
From Pritchard v. Dow Agro Sciences, 2009 U.S. Dist. LEXIS 53905 (W.D. Pa. June 25, 2009): The instant dispute arose from Plaintiff Robert Ted Pritchard’s (“Mr. Pritchard”) numerous ex parte communications with the Court and his dissemination of a letter…
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Retroactive Agency Action — Cases of First Impression — Competing Validity Tests

From Networkip, LLC v. FCC, 548 F.3d 116 (D.C. Cir. 2008): Though agencies are entitled to deference, they may not retroactively change the rules at will. Indeed, that "[e]lementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly" has been well ...
From Networkip, LLC v. FCC, 548 F.3d 116 (D.C. Cir. 2008): Though agencies are entitled to deference, they may not retroactively change the rules at will. Indeed, that “[e]lementary considerations of fairness dictate that individuals should have an opportunity to…
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Whether Spoliation Was Committed in Bad Faith Is Properly Left to Jury in Jurisdictions in Which Bad Faith Is Prerequisite to an Adverse Inference Instruction

From University Med. Ctr., Inc. v. Beglin, 2009 Ky. App. Unpub. LEXIS 361 (Ky. Ct. App. Jan. 16, 2009): The Hospital's first argument is that the trial court erred by giving the following missing evidence instruction to the jury: If you find from the evidence that an incident report was in fact prepared by Nurse Ba ...
From University Med. Ctr., Inc. v. Beglin, 2009 Ky. App. Unpub. LEXIS 361 (Ky. Ct. App. Jan. 16, 2009): The Hospital’s first argument is that the trial court erred by giving the following missing evidence instruction to the jury: If…
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Termination of Employment of Non-Party for Dishonesty Admitted under Rule 608

From EEOC v. Whirlpool Corp., 2009 U.S. Dist. LEXIS 50844 (M.D. Tenn. June 15, 2009): This is a Title VII action alleging sexual and racial hostile work place harassment. Plaintiff Equal Employment Opportunity Commission ("EEOC") and Intervenor Plaintiff Carlota Freemen ("Freemen") (collectively, "Plaintiffs") allege that Willie Baker (" ...
From EEOC v. Whirlpool Corp., 2009 U.S. Dist. LEXIS 50844 (M.D. Tenn. June 15, 2009): This is a Title VII action alleging sexual and racial hostile work place harassment. Plaintiff Equal Employment Opportunity Commission (“EEOC”) and Intervenor Plaintiff Carlota Freemen…
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The Odds Against a Civil RICO Plaintiff: Statistics

From Gross v. Waywell, 628 F. Supp. 2d 475 (S.D.N.Y.  2009): Not surprisingly, RICO's enchantment, like the siren's song, has again drawn another crew of spellbound plaintiffs foundering against the rocks. This outcome should come as no surprise to any counsel versed in the formidable intricacies and pitfalls inherent in RICO ...
From Gross v. Waywell, 628 F. Supp. 2d 475 (S.D.N.Y.  2009): Not surprisingly, RICO's enchantment, like the siren's song, has again drawn another crew of spellbound plaintiffs foundering against the rocks. This outcome should come as no surprise to any…
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When Loss of Earnings May, and May Not, Be Recovered under RICO

From Kalomiris v. Monroe County Syndicate, 2009 U.S. Dist. LEXIS 1264 (M.D. Pa. Jan. 8, 2009): RICO requires that the plaintiff sustain injury to "business or property." 18 U.S.C. § 1964(c). Personal injuries, loss of earnings, and other indirect injuries do not confer standing under RICO. See Anderson v. Ayling, 396 F.3d 265, ...
From Kalomiris v. Monroe County Syndicate, 2009 U.S. Dist. LEXIS 1264 (M.D. Pa. Jan. 8, 2009): RICO requires that the plaintiff sustain injury to “business or property.” 18 U.S.C. § 1964(c). Personal injuries, loss of earnings, and other indirect injuries…
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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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