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

Experts — Reliance on the Reports of Others

From City of Gary v. Shafer, 2009 U.S. Dist. LEXIS 47113 (N.D. Ind. June 2, 2009): An expert's opinion should not be rejected as unreliable simply because the expert relied on the reports of others. Walker v. Soo Line R. Co., 208 F.3d 581, 588 (7th Cir. 2000). Rather, experts may rely on data and other information that is supplie ...
From City of Gary v. Shafer, 2009 U.S. Dist. LEXIS 47113 (N.D. Ind. June 2, 2009): An expert’s opinion should not be rejected as unreliable simply because the expert relied on the reports of others. Walker v. Soo Line R.…
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American Pipe — Unlike Equitable Tolling Doctrines — Does Toll Statutes of Repose

From Arivella v. Lucent Techs., Inc., 2009 U.S. Dist. LEXIS 48591 (D. Mass. June 8, 2009): Relying primarily on Lampf v. Gilbertson, 501 U.S. 350, 363 (1991), Lucent suggests in its motion that "a statute of repose [like ERISA § 413(1)] may not be judicially tolled" ... and that consequently the plaintiffs' claims are untimely. ...
From Arivella v. Lucent Techs., Inc., 2009 U.S. Dist. LEXIS 48591 (D. Mass. June 8, 2009): Relying primarily on Lampf v. Gilbertson, 501 U.S. 350, 363 (1991), Lucent suggests in its motion that “a statute of repose [like ERISA §…
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RICO — Nationwide Jurisdiction under 18 U.S.C. § 1965 — Circuit Split

The plaintiff in Allstate Ins. Co. v. Plambeck, 2009 U.S. Dist. LEXIS 10302 (N.D. Tex. Jan. 30, 2009), brought this civil RICO action against chiropractors who allegedly submitted fraudulent bills and attorneys allegedly involved in the fraudulent scheme. Only one defendant resided in the district: Most courts have interpreted [18 U.S.C. ...
The plaintiff in Allstate Ins. Co. v. Plambeck, 2009 U.S. Dist. LEXIS 10302 (N.D. Tex. Jan. 30, 2009), brought this civil RICO action against chiropractors who allegedly submitted fraudulent bills and attorneys allegedly involved in the fraudulent scheme. Only one…
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Inherent Power Sanctions for Failure to Comply with Scheduling Order Do Not Require Showing of Bad Faith

From Washburn v. Morgado, 2009 U.S. App. LEXIS 11282 (9th Cir. May 4, 2009): Here, both parties wrote letters to Judge White informing him that they had been unable to meet the court's pretrial scheduling deadlines. He issued a written order stating that their final pretrial conference was cancelled and, in its place, the court would con ...
From Washburn v. Morgado, 2009 U.S. App. LEXIS 11282 (9th Cir. May 4, 2009): Here, both parties wrote letters to Judge White informing him that they had been unable to meet the court’s pretrial scheduling deadlines. He issued a written…
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Work Product Protection as Applicable Only to Parties and Inapplicable Even to Non-Parties Litigating a Related Action

From SEC v. Microtune, Inc., 2009 U.S. Dist. LEXIS 47091 (N.D. Tex. June 4, 2009) (dictum): [Footnote 3] ... Under the plain language of Rule 26(b)(3), only a party can claim work product protection. See, e.g. FTC v. Grolier, 462 U.S. 19, 25, 103 S.Ct. 2209, 2213, 76 L.Ed.2d 387 (1983) (dictum); Tambourine Comercio Internati ...
From SEC v. Microtune, Inc., 2009 U.S. Dist. LEXIS 47091 (N.D. Tex. June 4, 2009) (dictum): [Footnote 3] … Under the plain language of Rule 26(b)(3), only a party can claim work product protection. See, e.g. FTC v. Grolier, 462…
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Arbitration — Order of Priority of the Federal Arbitration Act, New York Convention and Inter-American Convention (Chapters 1, 2 and 3 of Title 9)

From RZS Holdings AVV v. PDVSA Petroleos S.A., 2009 U.S. Dist. LEXIS 47126 (E.D. Va. Feb. 5, 2009): The Court holds that the terms and provisions of the Inter-American Convention on International Commercial Arbitration ("the Inter-American Convention" or "Chapter Three") govern this arbitral award, and not Chapter One of the Federal Arbi ...
From RZS Holdings AVV v. PDVSA Petroleos S.A., 2009 U.S. Dist. LEXIS 47126 (E.D. Va. Feb. 5, 2009): The Court holds that the terms and provisions of the Inter-American Convention on International Commercial Arbitration (“the Inter-American Convention” or “Chapter Three”)…
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Authentication of Chat Room Evidence

From State v. Bell, 2009 Ohio 2335; 2009 Ohio App. LEXIS 2112 (Ohio Ct. App. May 18, 2009): [A]ppellant argues that the trial court erred by admitting printouts of the alleged on-line conversations and e-mail messages between T.W., one of the teenage victims, and appellant "that took place through MySpace" because the disputed documents w ...
From State v. Bell, 2009 Ohio 2335; 2009 Ohio App. LEXIS 2112 (Ohio Ct. App. May 18, 2009): [A]ppellant argues that the trial court erred by admitting printouts of the alleged on-line conversations and e-mail messages between T.W., one of…
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Rule 701 vs. Rule 702 — Lay Opinion Testimony — Is the Absence of Expertise an Advantage?

From San Luis & Delta-Mendota Water Authority v. Salazar, 2009 U.S. Dist. LEXIS 45137 (E.D. Cal. May 29, 2009): Federal Rule of Evidence 602 limits lay witness testimony to factual matters of which the witness has personal knowledge. Federal Rule of Evidence 701 limits opinion testimony by lay witnesses to "opinions or inferences which ...
From San Luis & Delta-Mendota Water Authority v. Salazar, 2009 U.S. Dist. LEXIS 45137 (E.D. Cal. May 29, 2009): Federal Rule of Evidence 602 limits lay witness testimony to factual matters of which the witness has personal knowledge. Federal Rule…
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Contractual Designation of State’s Law as Governing Does Not Evidence Parties’ Intent to Preclude Application of Federal Arbitration Act

From Precision Press, Inc. v. MLP USA, Inc., 2009 U.S. Dist. LEXIS 46107 (N.D. Iowa June 1, 2009): MLP argues that the Sales Agreement's arbitration clause is governed by federal law, the FAA. Anderson Brothers contends that state law should govern because of the parties' incorporation of a choice of law clause in paragraph 13(g) of the ...
From Precision Press, Inc. v. MLP USA, Inc., 2009 U.S. Dist. LEXIS 46107 (N.D. Iowa June 1, 2009): MLP argues that the Sales Agreement’s arbitration clause is governed by federal law, the FAA. Anderson Brothers contends that state law should…
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RICO Standing Unaffected by Plaintiff’s Post-Injury Change of State of Incorporation — RICO Conspiracy Claim Contingent on Viable Substantive Claim

From Blythe Holdings, Inc. v. Flawless Fin. Corp., 2009 U.S. Dist. LEXIS 2727 (N.D. Ill. Jan. 15, 2009): [Change of State of Incorporation.] …[Defendant] Coleman contends that Plaintiffs do not have standing pursuant to § 1962(c) to bring their RICO claims because of the six predicate acts upon which the RICO claims are based ...
From Blythe Holdings, Inc. v. Flawless Fin. Corp., 2009 U.S. Dist. LEXIS 2727 (N.D. Ill. Jan. 15, 2009): [Change of State of Incorporation.] …[Defendant] Coleman contends that Plaintiffs do not have standing pursuant to § 1962(c) to bring their RICO…
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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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