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

Spoliation — District Court Predicts Oklahoma Supreme Court Would Not Recognize a Tort of Spoliation — Proper to Consider Dicta in Predicting State Court Law

From Napier v. Cinemark, 2009 U.S. Dist. LEXIS 31318 (N.D. Okla. April 13, 2009): Defendant moves to dismiss plaintiff's claim for tortious spoliation of evidence on the ground that it is not a recognized tort in Oklahoma. Plaintiff concedes that there is no Oklahoma case law recognizing tortious spoliation of evidence, but argues that, ...
From Napier v. Cinemark, 2009 U.S. Dist. LEXIS 31318 (N.D. Okla. April 13, 2009): Defendant moves to dismiss plaintiff’s claim for tortious spoliation of evidence on the ground that it is not a recognized tort in Oklahoma. Plaintiff concedes that…
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United Nations and Foreign Public Records as Falling within Fed.R.Evid. 803(8) and 902(5) and Fed.R.Civ.P. 44(a)(2)

The hearsay exception of Rule 803(8) includes public records kept by the United Nations and foreign governments. U.S. v. Pluta, 176 F.3d 43, 49 (2d Cir. 1999) (“Public records and reports of foreign governments . . . are within scope of Rule 803(8).”) (citation and quotation omitted); Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 505 F.Supp. ...
The hearsay exception of Rule 803(8) includes public records kept by the United Nations and foreign governments. U.S. v. Pluta, 176 F.3d 43, 49 (2d Cir. 1999) (“Public records and reports of foreign governments . . . are within scope…
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Twombly and Civil RICO — Reputational Impact of RICO Claim

From Nichols v. Mahoney, 2009 U.S. Dist. LEXIS 34955 (S.D.N.Y. April 2, 2009): A civil RICO lawsuit has vast implications for the defendants because of the specter of treble damages and the possibility of permanent reputational injury to defendants from the allegation that they are "racketeers." Courts have frequently commented on the "i ...
From Nichols v. Mahoney, 2009 U.S. Dist. LEXIS 34955 (S.D.N.Y. April 2, 2009): A civil RICO lawsuit has vast implications for the defendants because of the specter of treble damages and the possibility of permanent reputational injury to defendants from…
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Internet Evidence — Website Authentication

From Buzz Off Insect Shield, LLC v. S.C. Johnson & Son, Inc., 2009 U.S. Dist. LEXIS 17530 (M.D.N.C. Mar. 6, 2009): In ruling on the Motion in Limine, the Court concluded that [defendant] could authenticate its printouts of various websites by calling witnesses who could testify that they viewed and printed the information, or supervised ...
From Buzz Off Insect Shield, LLC v. S.C. Johnson & Son, Inc., 2009 U.S. Dist. LEXIS 17530 (M.D.N.C. Mar. 6, 2009): In ruling on the Motion in Limine, the Court concluded that [defendant] could authenticate its printouts of various websites…
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Sanctions — Rule 11 Sanctions Impermissible for Oral Misstatement that Does Not Advocate Position from Prior Written Filing

From Columbia Venture LLC v. FEMA, 2009 U.S. App. LEXIS 6926 (4th Cir. April 3, 2009): [Extemporaneous Oral Advocacy Unrelated to Filing Not Sanctionable Under Rule 11] Rule 11 … severely limits a court's ability to sanction counsel for oral statements. It permits a court to impose sanctions only on the basis of a false ...
From Columbia Venture LLC v. FEMA, 2009 U.S. App. LEXIS 6926 (4th Cir. April 3, 2009): [Extemporaneous Oral Advocacy Unrelated to Filing Not Sanctionable Under Rule 11] Rule 11 … severely limits a court’s ability to sanction counsel for oral…
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Spoliation — Secondary Evidence Insufficient — Prejudice from Destruction of Interview Notes Not Remedied by Existence of Typewritten Summaries

From Reed v. Honeywell Int’l, Inc., 2009 U.S. Dist. LEXIS 35384 (D. Ariz. April 27, 2009), a claim by a returning veteran for violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA") for, among other things, discriminating against her because of her military service and discharging her within one year of her re-employmen ...
From Reed v. Honeywell Int’l, Inc., 2009 U.S. Dist. LEXIS 35384 (D. Ariz. April 27, 2009), a claim by a returning veteran for violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) for, among other things,…
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RICO — Speculative Injury Insufficient to Sustain Claim

From Circiello v. Alfano, 2009 U.S. Dist. LEXIS 37795 (D. Mass. May 4, 2009): The injury Circiello claims to have suffered is the lost opportunity to have realized a $ 10 million award against Alfano for the wrongful death of her father. Circiello offers no explanation of the basis for the $ 10 million figure. Moreover, she concedes th ...
From Circiello v. Alfano, 2009 U.S. Dist. LEXIS 37795 (D. Mass. May 4, 2009): The injury Circiello claims to have suffered is the lost opportunity to have realized a $ 10 million award against Alfano for the wrongful death of…
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Civil Discovery, Fed.R.Crim.P. 6(e) (Grand Jury Secrecy) and 26 U.S.C. §6103 (Internal Revenue Code Tax Privilege)

From Alpert v. Riley, 2009 U.S. Dist. LEXIS 36612 (S.D. Tex. April 30, 2009): II. Rule 6(e) of the Federal Rule of Criminal Procedure A. No Secrecy Obligation on a Grand-Jury Witness The defendants argue that "grand-jury secrecy" under Rule 6(e)(2) prevents them from disclosing any information or documents that w ...
From Alpert v. Riley, 2009 U.S. Dist. LEXIS 36612 (S.D. Tex. April 30, 2009): II. Rule 6(e) of the Federal Rule of Criminal Procedure A. No Secrecy Obligation on a Grand-Jury Witness The defendants argue that “grand-jury secrecy” under Rule…
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First-Filed Rule and Forum Shopping — Noerr-Pennington Baselessness = Rule 11

From CBS Interactive Inc. v. NFL Players Ass’n, Inc., 2009 U.S. Dist. LEXIS 36800 (D. Minn. April 28, 2009): [First-Filed Rule and Forum Shopping] As an initial matter, the parties dispute the applicability of the "first-filed rule," which provides that "when parallel litigation has been instituted in separate courts," pri ...
From CBS Interactive Inc. v. NFL Players Ass’n, Inc., 2009 U.S. Dist. LEXIS 36800 (D. Minn. April 28, 2009): [First-Filed Rule and Forum Shopping] As an initial matter, the parties dispute the applicability of the “first-filed rule,” which provides that…
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Statute of Limitations — Complaint Dismissed without Prejudice Does Not Toll Limitations Period as a Matter of Federal Law

From Kucher v. Alternative Treatment Center of Paterson, LLC, 2009 U.S. Dist. LEXIS 36737 (E.D.N.Y. March 27, 2009): In the event of a dismissal without prejudice, the limitations period in this case would be considered to have expired in 2008 [for one claim] since such a dismissal negates the tolling effected by t ...
From Kucher v. Alternative Treatment Center of Paterson, LLC, 2009 U.S. Dist. LEXIS 36737 (E.D.N.Y. March 27, 2009): In the event of a dismissal without prejudice, the limitations period in this case would be considered to have expired in 2008…
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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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