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

Contractual Jury Trial Waiver Unenforceable in Diversity Action Governed by Georgia Law Despite U.S. Supreme Court Statements to Contrary

From GE Commercial Finance Bus. Prop. Corp. v. Heard, 2009 U.S. Dist. LEXIS 41882 (M.D. Ga. May 18, 2009): Under Georgia law, a pre-litigation contractual jury trial waiver is unenforceable. Bank S., N.A. v. Howard, 264 Ga. 339, 340, 444 S.E.2d 799, 800 (1994) (holding that "pre-litigation contractual waivers of jury trial are no ...
From GE Commercial Finance Bus. Prop. Corp. v. Heard, 2009 U.S. Dist. LEXIS 41882 (M.D. Ga. May 18, 2009): Under Georgia law, a pre-litigation contractual jury trial waiver is unenforceable. Bank S., N.A. v. Howard, 264 Ga. 339, 340, 444…
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Supreme Court: If State Law Permits Non-Signatory to Compel Arbitration, Federal Arbitration Act Does Not Bar It and Permits Appeal of Denial of Stay of Litigation

From Arthur Andersen LLP v. Carlisle, 129 S. Ct. 1896 (May 4, 2009): [Non-Party May Enforce Arbitration Agreement under FAA If Permitted to Do So under State Law] Section 2 — the FAA's substantive mandate — makes written arbitration agreements "valid, irrevocable, and enforceable, save upon such grounds as exist at law ...
From Arthur Andersen LLP v. Carlisle, 129 S. Ct. 1896 (May 4, 2009): [Non-Party May Enforce Arbitration Agreement under FAA If Permitted to Do So under State Law] Section 2 — the FAA’s substantive mandate — makes written arbitration agreements…
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Supreme Court Holds that Decision Declining Supplemental Jurisdiction Is Appealable Despite § 1447(d) — But Likely Only Because No One Challenged Thermtron

From Carlsbad Technology, Inc. v. HIF BIO, Inc., 129 S. Ct. 1862 (May 4, 2009): In this case, we decide whether a federal court of appeals has jurisdiction to review a district court's order that remands a case to state court after declining to exercise supplemental jurisdiction over state-law claims under 28 U.S.C. § 1367(c). The Cour ...
From Carlsbad Technology, Inc. v. HIF BIO, Inc., 129 S. Ct. 1862 (May 4, 2009): In this case, we decide whether a federal court of appeals has jurisdiction to review a district court’s order that remands a case to state…
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Supreme Court on Twombly: We Really Mean It

From Ashcroft v. Iqbal, No. 07-1015, 2009 U.S. LEXIS 3472 (U.S. May 18, 2009): Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." As the Court held in Twombly, 550 U.S. 544, the pleading standard Rule 8 announces does not ...
From Ashcroft v. Iqbal, No. 07-1015, 2009 U.S. LEXIS 3472 (U.S. May 18, 2009): Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to…
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RICO — Dismissal for Failure to Plead Enterprise with Specificity

Before Twombly, courts vacillated as to whether non-fraud elements of a civil RICO claim must be pled with specificity. Since Twombly (and now, Iqbal), vacillation has largely disappeared. From Brunig v. Clark, 2009 U.S. App. LEXIS 3513 (5th Cir. Feb. 17, 2009): In order to state a claim under RICO, a plaintiff mus ...
Before Twombly, courts vacillated as to whether non-fraud elements of a civil RICO claim must be pled with specificity. Since Twombly (and now, Iqbal), vacillation has largely disappeared. From Brunig v. Clark, 2009 U.S. App. LEXIS 3513 (5th Cir. Feb.…
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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 — Pro Se Status Not an “Impenetrable Shield” from Sanctions

From McKenna v. Nestle Purina Petcare Co., 2009 U.S. Dist. LEXIS 30171 (S.D. Ohio Mar. 24, 2009): Being a pro se litigant is not a license for McKenna to state and do whatever he wants. There is not a different standard for Rule 11 sanctions for attorneys and non-attorneys. Spurlock v. Demby, No. 92-3842, 1995 WL 89003, at *2 (6t ...
From McKenna v. Nestle Purina Petcare Co., 2009 U.S. Dist. LEXIS 30171 (S.D. Ohio Mar. 24, 2009): Being a pro se litigant is not a license for McKenna to state and do whatever he wants. There is not a different…
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Civil RICO and Extraterritoriality

From Wiwa v. Royal Dutch Petroleum Co., 2009 U.S. Dist. LEXIS 34843 (S.D.N.Y. Mar. 18, 2009): The RICO statute is silent as to its extraterritorial application. See North South Fin. Corp. v. Al-Turki, 100 F.3d 1046, 1051 (2d Cir. 1996). The Second Circuit Court of Appeals ("Second Circuit") has not determined what test district c ...
From Wiwa v. Royal Dutch Petroleum Co., 2009 U.S. Dist. LEXIS 34843 (S.D.N.Y. Mar. 18, 2009): The RICO statute is silent as to its extraterritorial application. See North South Fin. Corp. v. Al-Turki, 100 F.3d 1046, 1051 (2d Cir. 1996).…
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Expert Report and Deposition Testimony as Party Admission

Reports of retained experts and their deposition testimony constitute party admissions under Rule 801(d)(2)(B), (C), and/or (D). See Kreppel v. Guttman Breast Diagnostic Inst., Inc., No. 95 Civ. 10830(SWK)(MHD), 1999 WL 1243891 (S.D.N.Y. Dec. 21, 1999) (Rule 801(d)(2)(B)); Dean, by Williams v. Watson, 1995 WL 692020, at **9-10 (N.D. Ill. Feb. 28, 1996 ...
Reports of retained experts and their deposition testimony constitute party admissions under Rule 801(d)(2)(B), (C), and/or (D). See Kreppel v. Guttman Breast Diagnostic Inst., Inc., No. 95 Civ. 10830(SWK)(MHD), 1999 WL 1243891 (S.D.N.Y. Dec. 21, 1999) (Rule 801(d)(2)(B)); Dean, by…
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Lawyer-Witness Disqualification — Standards under New York Law

From Pu v. Greenthal Mgmt. Corp., 2009 U.S. Dist. LEXIS 19554 (S.D.N.Y. Mar. 10, 2009): The current New York Lawyer's Code of Professional Responsibility addresses circumstances meriting attorney disqualification where counsel may be required to serve as a trial witness. See DR 5-102, codified as N.Y. COMP. CODES R. & REGS. tit. 2 ...
From Pu v. Greenthal Mgmt. Corp., 2009 U.S. Dist. LEXIS 19554 (S.D.N.Y. Mar. 10, 2009): The current New York Lawyer’s Code of Professional Responsibility addresses circumstances meriting attorney disqualification where counsel may be required to serve as a trial witness.…
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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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