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

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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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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Recent Posts

New York Law Firm That Advised Florida Resident for Years Subject to Personal Jurisdiction in Florida, Thus Subject to 28 U.S.C. § 1782 in Florida — Court Cannot Amend Protective Order Following Dismissal of Case Unless the Order Retains Jurisdiction Post-Dismissal — Parties Can Enforce Stipulated Protective Order Post-Dismissal Through Breach of Contract Action

Rule 37(e)/Spoliation — “Intent to Deprive” Determined under the Preponderance of the Evidence Standard — Court May Make Determination Or Allow Jury to Do So — Lesser “Culpable Conduct” Standard of Residential Funding Continues to Apply in Second Circuit Outside ESI Context — Once Judge Has Definitively Ruled on the Record Denying A Requested Instruction, Counsel Is Not Required to Object to the Charge Again at Trial to Preserve Issue for Appeal

Rule 11 (9011) and Inherent Power Sanctions for “Unapologetic [Refusal to Apologize] Defiance” of Court’s Rules and Orders — Advising Client to Take Steps That Same Judge Had Told Lawyer Were Improper in Prior Case — Obstinate Recidivism — Silence upon Withdrawal of Motion As Rule 11 (9011) Violation (Noted But Not Addressed on Appeal)

Rule 37 Sanctions Properly Denied for Failure to Produce Documents That Were Already in the Requester’s Possession And Were Not Relevant to The Principal Issue in the Lawsuit — Experts/Daubert: Exclusion Appropriate Where Opinion Was Predicated on Erroneous Assumptions of Law

Supreme Court: Obtaining a Preliminary Injunction Does Not Render the Plaintiff a “Prevailing Party” Entitled to Attorney’s Fees — Must Win “Enduring Relief” On The Merits From A Judicial Order — Extraneous Events, Like Legislation, That Preserve The Outcome And Moot The Lawsuit Do Not Turn The Plaintiff into A Prevailing Party (Note, However, That A Defendant Need Not Obtain A Favorable Judgment On The Merits In Order To Be A “Prevailing Party”)

Supreme Court: When A Plaintiff Amends The Complaint To Delete The Federal-Law Claims That Enabled Removal To Federal Court, Leaving Only State-Law Claims, The Federal Court Loses Supplemental Jurisdiction, And The Case Must Be Remanded To State Court

Supreme Court: A Rule 41(a) Voluntary Dismissal Without Prejudice = A Final Proceeding Within Rule 60(b) — Advisory Committee Notes Are “A Reliable Source Of Insight Into The Meaning Of A Rule” — Prior to Dismissal or Entry of Judgment, A District Court May Always Rehear and Reconsider Prior Rulings

Rule 37(c)(1) Sanctions — Exclusion of Untimely Expert Report — Burden Is On Noncompliant Party to Prove Harmlessness — Court Need Not Hold Hearing If Noncompliant Party Fails to Argue Harmlessness, Even When Exclusion Is Tantamount to Dismissal

RICO: (1) Continuity: 4th Circuit Factors — (2) 4th Circuit Reserves RICO Liability for Unlawful Activities That Pose A Special Threat to Social Well-Being — (3) For Purposes of Determining Closed-Ended Continuity, Even Time-Barred Conduct Considered — (4) No Open-Ended Continuity If Racketeering Activity Has Built-In Ending Point — (5) Unlike General Federal Conspiracy, RICO Conspiracy Doesn’t Require Each Defendant to Perform an Overt Act in Furtherance of the Conspiracy

Whether Party Waived Arbitration by Litigating Is a Question for the Court, Not the Arbitrator

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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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