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 Designation of State’s Law as Governing Does Not Evidence Parties’ Intent to Preclude Application of Federal Arbitration Act

From Precision Press, Inc. v. MLP USA, Inc., 2009 U.S. Dist. LEXIS 46107 (N.D. Iowa June 1, 2009): MLP argues that the Sales Agreement's arbitration clause is governed by federal law, the FAA. Anderson Brothers contends that state law should govern because of the parties' incorporation of a choice of law clause in paragraph 13(g) of the ...
From Precision Press, Inc. v. MLP USA, Inc., 2009 U.S. Dist. LEXIS 46107 (N.D. Iowa June 1, 2009): MLP argues that the Sales Agreement’s arbitration clause is governed by federal law, the FAA. Anderson Brothers contends that state law should…
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RICO Standing Unaffected by Plaintiff’s Post-Injury Change of State of Incorporation — RICO Conspiracy Claim Contingent on Viable Substantive Claim

From Blythe Holdings, Inc. v. Flawless Fin. Corp., 2009 U.S. Dist. LEXIS 2727 (N.D. Ill. Jan. 15, 2009): [Change of State of Incorporation.] …[Defendant] Coleman contends that Plaintiffs do not have standing pursuant to § 1962(c) to bring their RICO claims because of the six predicate acts upon which the RICO claims are based ...
From Blythe Holdings, Inc. v. Flawless Fin. Corp., 2009 U.S. Dist. LEXIS 2727 (N.D. Ill. Jan. 15, 2009): [Change of State of Incorporation.] …[Defendant] Coleman contends that Plaintiffs do not have standing pursuant to § 1962(c) to bring their RICO…
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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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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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