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

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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Interlocutory Appeal under 28 U.S.C. § 1292(b) — Merely Because Issue is One of First Impression Does Not Necessarily Mean that There Is a Substantial Ground for Difference of Opinion

From Stuart v. RadioShack Corp., 2009 U.S. Dist. LEXIS 57963 (N.D. Cal. June 25, 2009): [T]here are three factors that a trial court considers in determining whether certification of an interlocutory appeal is appropriate [under 28 U.S.C. § 1292(b)]: (1) whether the moving party seeks to appeal an order involving a controlling question ...
From Stuart v. RadioShack Corp., 2009 U.S. Dist. LEXIS 57963 (N.D. Cal. June 25, 2009): [T]here are three factors that a trial court considers in determining whether certification of an interlocutory appeal is appropriate [under 28 U.S.C. § 1292(b)]: (1)…
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RICO — Proximate and Intervening Cause as Matters of Law for the Court

From Ideal Steel Supply Corp. v. Anza, 2009 U.S. Dist. LEXIS 55233 (S.D.N.Y. June 30, 2009): When factors other than the defendant's alleged misconduct are an intervening direct cause of a plaintiff's injury, that injury cannot be said to have occurred by reason of the defendant's actions. See McLaughlin v. Am. Tobacco Co., 522 F. ...
From Ideal Steel Supply Corp. v. Anza, 2009 U.S. Dist. LEXIS 55233 (S.D.N.Y. June 30, 2009): When factors other than the defendant’s alleged misconduct are an intervening direct cause of a plaintiff’s injury, that injury cannot be said to have…
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Contractual Warranties under New York Law — Reliance on Warranty Despite Knowledge of Falsity of Warranted Information Permitted

From Wells Fargo Bank, N.A. v. LaSalle Bank N.A., 2009 U.S. Dist. LEXIS 57812 (S.D. Ohio July 7, 2009): Although both parties have moved for summary judgment, these are not true cross-motions. See Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d §2720 (1998), on the situation where parties make cross-motions for summary j ...
From Wells Fargo Bank, N.A. v. LaSalle Bank N.A., 2009 U.S. Dist. LEXIS 57812 (S.D. Ohio July 7, 2009): Although both parties have moved for summary judgment, these are not true cross-motions. See Wright, Miller & Kane, Federal Practice and…
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Absent Class Members’ Right of Access to Class Counsel’s Files Depends on Their Stake in the Outcome and Demonstrable Need for the Materials

Updating our post of December 28, 2007 (reporting the intermediate appellate court's decision): From Wyly v. Milberg Weiss Bershad & Schulman, LLP, 12 N.Y.3d 400 (N.Y. Ct. App. 2009): Petitioner Sam Wyly was an absent class member in a federal securities class action lawsuit; an absent class member is a member of a putative or certified ...
Updating our post of December 28, 2007 (reporting the intermediate appellate court’s decision): From Wyly v. Milberg Weiss Bershad & Schulman, LLP, 12 N.Y.3d 400 (N.Y. Ct. App. 2009): Petitioner Sam Wyly was an absent class member in a federal…
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“Settlement Payment” Doctrine — Exemption from Bankruptcy Avoidance — Extends to Privately-Traded Securities Acquired in Leveraged Buyout; Caselaw Split

From QSI Holdings, Inc. v. Alford, 2009 U.S. App. LEXIS 14744 (6th Cir. July 6, 2009): In this appeal, we must determine whether § 546(e) of the Bankruptcy Code applies to privately traded securities. If that is indeed the case, then the settlement payments made to defendant shareholders are exempt from avoidance. This is an issue of ...
From QSI Holdings, Inc. v. Alford, 2009 U.S. App. LEXIS 14744 (6th Cir. July 6, 2009): In this appeal, we must determine whether § 546(e) of the Bankruptcy Code applies to privately traded securities. If that is indeed the case,…
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Dismissal of State Law Claim for Lack of Subject Matter Jurisdiction — with State Court Remaining an Open Alternative — Is Not a Favorable Termination Permitting an Award of Costs under Fed.R.Civ.P. 54(d)

From Adams v. Monumental Gen. Cas. Co., 2009 U.S. Dist. LEXIS 55194 (M.D. Ga. June 30, 2009), a Class Action Fairness Act (“CAFA”) action in which class certification was denied and the Court declined to exercise supplemental jurisdiction: Presently pending before the Court is Plaintiff's Motion to Strike Defendant's Bill of Costs.... ...
From Adams v. Monumental Gen. Cas. Co., 2009 U.S. Dist. LEXIS 55194 (M.D. Ga. June 30, 2009), a Class Action Fairness Act (“CAFA”) action in which class certification was denied and the Court declined to exercise supplemental jurisdiction: Presently pending…
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Sanctions under the PSLRA — Error Not to Consider Viability of Each Plaintiff’s Claim against Each Defendant — Attorneys’ Fees for Entire Litigation Awarded

From Ledford v. Peeples, 568 F.3d 1258 (11th Cir. 2009): In this case, two parties, X and Y, each owned a fifty percent interest in a limited liability company that manufactured and sold carpets. X provided the financing; Y ran the company and marketed its product. The parties had a buy-sell agreement that enabled either party to buy ou ...
From Ledford v. Peeples, 568 F.3d 1258 (11th Cir. 2009): In this case, two parties, X and Y, each owned a fifty percent interest in a limited liability company that manufactured and sold carpets. X provided the financing; Y ran…
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Limits of the Sham Affidavit Doctrine

From Concordance Corp. v. Amazon.com, Inc., 2009 U.S. Dist. LEXIS 55359 (D.Del. June 30, 2009): "A sham affidavit is a contradictory affidavit that indicates only that the affiant cannot maintain a consistent story or is willing to offer a statement solely for the purpose of defeating summary judgment." [Jiminex v. All Am. Rathskell ...
From Concordance Corp. v. Amazon.com, Inc., 2009 U.S. Dist. LEXIS 55359 (D.Del. June 30, 2009): “A sham affidavit is a contradictory affidavit that indicates only that the affiant cannot maintain a consistent story or is willing to offer a statement…
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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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