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

Evidence of Spoliation Admissible to Show Consciousness of Guilt under Fed.R.Evid. 404(b)

From United States v. Anderson, 2009 U.S. App. LEXIS 12532 (6th Cir. May 26, 2009): Next, Remble contends that the district court erred by *** admitting testimony that Remble had attempted to bribe a witness, Antwan Atkins, into not testifying at trial. *** The district court ... did not err in permitting Atkins to testify that ...
From United States v. Anderson, 2009 U.S. App. LEXIS 12532 (6th Cir. May 26, 2009): Next, Remble contends that the district court erred by *** admitting testimony that Remble had attempted to bribe a witness, Antwan Atkins, into not testifying…
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Sanctions — Blame-Shifting — Good Quote and an 1871 Cartoon

From Ameriquest Mortgage Co. v. U.S. Bankruptcy Court, 2009 U.S. Dist. LEXIS 44835 (D. Mass. May 26, 2009) (Young, J.) Oscar Wilde once said "It's not whether you win or lose, it's how you place the blame." This case presents the unedifying spectacle of a litigant and its lawyers engaging in egregious misrepresentations and, now that the ...
From Ameriquest Mortgage Co. v. U.S. Bankruptcy Court, 2009 U.S. Dist. LEXIS 44835 (D. Mass. May 26, 2009) (Young, J.) Oscar Wilde once said “It’s not whether you win or lose, it’s how you place the blame.” This case presents…
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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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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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