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

Trustee of Litigation Trust Succeeds to Attorney-Client Privilege of Creditors’ Committee for Reports Prepared by Committee Counsel — Common Interest and Work Product also Extend to Reports

The Creditors’ Committee in Osherow v. Vann, 2009 Bankr. LEXIS 1152 (Bankr. W.D. Tex. April 13, 2009), retained counsel to evaluate claims held by the debtor. After the reports were prepared, a Litigation Trust was appointed. It was assigned the claims and designated a successor-in-interest to the Committee. The Trustee of the Litigation Trust asserted a ...
The Creditors’ Committee in Osherow v. Vann, 2009 Bankr. LEXIS 1152 (Bankr. W.D. Tex. April 13, 2009), retained counsel to evaluate claims held by the debtor. After the reports were prepared, a Litigation Trust was appointed. It was assigned the…
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Cross-Examination of Expert Using Treatise to be Authenticated by Subsequently-Testifying Expert

Under Fed.R.Evid. 803(18), learned treatises need not be acknowledged as reliable by the testifying expert. They are “not excluded by the hearsay rule . . . [t]o the extent called to the attention of an expert witness upon cross-examination [and] established as a reliable authority . . . by other expert testimony or by judicial notice.” They can be authenticat ...
Under Fed.R.Evid. 803(18), learned treatises need not be acknowledged as reliable by the testifying expert. They are “not excluded by the hearsay rule . . . [t]o the extent called to the attention of an expert witness upon cross-examination [and]…
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Sanctions — Unasserted, After-the-Fact Rationale Insufficient to Defeat Rule 11 or § 1927 Sanctions — Vicarious Liability

From Vazquez v. Central States Joint Bd., 2009 U.S. Dist. LEXIS 16987 (N.D. Ill. Mar. 3, 2009): [After-the-Fact Research.] ***Plaintiffs' newly developed argument in support of their previous position is irrelevant to the issue of sanctions. What matters is whether Plaintiffs made a non-frivolous argument in support of their p ...
From Vazquez v. Central States Joint Bd., 2009 U.S. Dist. LEXIS 16987 (N.D. Ill. Mar. 3, 2009): [After-the-Fact Research.] ***Plaintiffs’ newly developed argument in support of their previous position is irrelevant to the issue of sanctions. What matters is whether…
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Sanctions — Prejudgment Appeal of Sanction Order Premature and Not Revived by Subsequent Entry of Judgment — Separate, Timely Post-Judgment Appeal Required

From Adams v. Ford Motor Co., 2009 U.S. App. LEXIS 6460 (3d Cir. Mar. 26, 2009): On May 27, 2008, the District Court entered an order declaring, inter alia, that "the Court finds that Vincent A. Colianni, Sr., [counsel for the plaintiff] has engaged in misconduct by his post-verdict communication with a juror in contravention of Am ...
From Adams v. Ford Motor Co., 2009 U.S. App. LEXIS 6460 (3d Cir. Mar. 26, 2009): On May 27, 2008, the District Court entered an order declaring, inter alia, that “the Court finds that Vincent A. Colianni, Sr., [counsel for…
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RICO — Both Deprivation and Acquisition of Property Right Essential to Hobbs Act Predicate

From US Airline Pilots Ass’n v AWAPPA, LLC, 2008 U.S. Dist. LEXIS 106440 (W.D.N.C. July 11, 2008): Until recently, the phrase "the obtaining of property from another" as found in the Hobbs Act was construed broadly by the courts. *** In 2003, however, the Supreme Court significantly restricted the scope of the phrase "the obtaini ...
From US Airline Pilots Ass’n v AWAPPA, LLC, 2008 U.S. Dist. LEXIS 106440 (W.D.N.C. July 11, 2008): Until recently, the phrase “the obtaining of property from another” as found in the Hobbs Act was construed broadly by the courts. ***…
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Post-Iqbal, Limited Discovery at Best Is Appropriate Pending Decision on 12(b)(6) Motion in Complex Cases

From Coss v. Playtex Prods., LLC, 2009 U.S. Dist. LEXIS 42933 (N.D. Ill. May 21, 2009), a consumer class action: Antitrust cases are typical of the types of cases where discovery is so burdensome and costly to parties that a stay pending decision on a motion to dismiss may be appropriate. Bell Atlantic Corp v. Twombly, 550 U.S. 54 ...
From Coss v. Playtex Prods., LLC, 2009 U.S. Dist. LEXIS 42933 (N.D. Ill. May 21, 2009), a consumer class action: Antitrust cases are typical of the types of cases where discovery is so burdensome and costly to parties that a…
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Noerr-Pennington Applicable to Lawsuits Brought by Governmental Entities

From Kearney v. Foley & Lardlner, LLP, 2009 U.S. App. LEXIS 10917 (9th Cir. May 12, 2009): [Appellant] Kearney claims that the [Noerr-Pennington] doctrine was meant to protect a citizen's right to petition the government, and never intended to bar suit by a private citizen against government officials. In support of her argument, ...
From Kearney v. Foley & Lardlner, LLP, 2009 U.S. App. LEXIS 10917 (9th Cir. May 12, 2009): [Appellant] Kearney claims that the [Noerr-Pennington] doctrine was meant to protect a citizen’s right to petition the government, and never intended to bar…
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RICO Causation ≠ But-For Causation

From Marlow v. v. Allianz Life Ins. Co. of N. Am., 2009 U.S. Dist. LEXIS 43502 (D. Colo. May 12, 2009): [E]ven if Plaintiff had stated a § 1962(c) violation, he has not sufficiently alleged that his injuries were caused by that violation. Causation in the RICO context requires a plaintiff to show both "but for" causation and proximate c ...
From Marlow v. v. Allianz Life Ins. Co. of N. Am., 2009 U.S. Dist. LEXIS 43502 (D. Colo. May 12, 2009): [E]ven if Plaintiff had stated a § 1962(c) violation, he has not sufficiently alleged that his injuries were caused…
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Rule 60(a) Motion to Correct Clerical Error Filed within 10 Days of Judgment Tolls the time for Filing of Appeal

From Catz v. Chalker, 2009 U.S. App. LEXIS 10908 (9th Cir. May 13, 2009): [This appeal] presents us with an issue of first impression in this circuit: whether a motion to correct a clerical mistake pursuant to Fed. R. Civ. P. 60(a) filed within ten days of the entry of judgment tolls the time for the filing of an appeal under Fed. R. App ...
From Catz v. Chalker, 2009 U.S. App. LEXIS 10908 (9th Cir. May 13, 2009): [This appeal] presents us with an issue of first impression in this circuit: whether a motion to correct a clerical mistake pursuant to Fed. R. Civ.…
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Self-Authentication of Evidence Downloaded from Public Authorities’ Websites — Who Must Create It & What Is a Public Authority?

From Williams v. Long, 2008 U.S. Dist. LEXIS 91110 (D. Md. Nov. 10, 2008): Exhibit # 1 was a copy of printed search results from the Maryland Judiciary Case Search website, which was not authenticated by affidavit or other extrinsic evidence. The printed webpages contained information pertaining to three independent lawsuits…. ...
From Williams v. Long, 2008 U.S. Dist. LEXIS 91110 (D. Md. Nov. 10, 2008): Exhibit # 1 was a copy of printed search results from the Maryland Judiciary Case Search website, which was not authenticated by affidavit or other extrinsic…
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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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