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

Expert Whose Testimony Is to Be Based on Evidence at Trial Per Rule 703 Is Properly Exempted from Rule 615(3) Sequestration Order

From United States v. Abdallah, 2009 U.S. Dist. LEXIS 36172 (S.D. Tex. April 29, 2009): [T]he Abdallahs argue that this court erred by failing to exclude Patterson from the courtroom, in violation of Rule 615 of the Federal Rules of Evidence. Rule 615 directs that upon a party's request or upon its own motion "the court shall order witne ...
From United States v. Abdallah, 2009 U.S. Dist. LEXIS 36172 (S.D. Tex. April 29, 2009): [T]he Abdallahs argue that this court erred by failing to exclude Patterson from the courtroom, in violation of Rule 615 of the Federal Rules of…
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“Some Recollection” of Email Sufficient to Authenticate It

From Baker v. Chrysler, 179 Ohio App. 3d 351, 2008 Ohio 6032, 901 N.E.2d 875 (2008): Donald Anspaugh authenticated exhibit 39 — an e-mail from his law partner to Bill Chrysler, in which he was copied — when he stated that he had "some recollection" of seeing it and he "had to conclude" that the printout was a copy of the e-mail he had ...
From Baker v. Chrysler, 179 Ohio App. 3d 351, 2008 Ohio 6032, 901 N.E.2d 875 (2008): Donald Anspaugh authenticated exhibit 39 — an e-mail from his law partner to Bill Chrysler, in which he was copied — when he stated…
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RICO: Parent + Subsidiaries + “Something More” = Association-in-Fact Enterprise

From In re Countrywide Fin. Corp. Mortg. Mktg. & Sales Pracs. Litig., 2009 U.S. Dist. LEXIS 18227 (S.D. Cal. Feb. 5, 2009): Relying on the text of § 1962(c), courts have consistently held that "the 'person' must be a separate and distinct entity from the 'enterprise.'" Schreiber Distributing Co. v. Serv-Well Furniture Co., Inc.,
From In re Countrywide Fin. Corp. Mortg. Mktg. & Sales Pracs. Litig., 2009 U.S. Dist. LEXIS 18227 (S.D. Cal. Feb. 5, 2009): Relying on the text of § 1962(c), courts have consistently held that “the ‘person’ must be a separate…
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SLUSA Does Not Require Dismissal of Entire Action Simply Because Some Claims Are Precluded

From In re Lord Abbett Mut. Funds Fee Litig., 553 F.3d 248 (3d Cir. 2009): This appeal presents the question whether SLUSA [the Securities Litigation Uniform Standards Act of 1998, 15 U.S.C. § 78bb(f)] requires the dismissal of the entire action when the action includes some state law class action claims that clearly may not be maintaine ...
From In re Lord Abbett Mut. Funds Fee Litig., 553 F.3d 248 (3d Cir. 2009): This appeal presents the question whether SLUSA [the Securities Litigation Uniform Standards Act of 1998, 15 U.S.C. § 78bb(f)] requires the dismissal of the entire…
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Law Firm Must Act with Bad Faith Independent of Its Partner to Warrant Inherent Power Sanctions Against Firm

From Wolters Kluwer Fin. Servs. v. Scivantage, 2009 U.S. App. LEXIS 8246 (2d Cir. April 21, 2009): [Law Firm Must Act with Bad Faith Independent of Partner’s, in Order to Warrant Inherent Power Sanctions Against the Firm] The district court found that Dorsey's [the law firm’s] main purpose in filing a Rule 41 volunt ...
From Wolters Kluwer Fin. Servs. v. Scivantage, 2009 U.S. App. LEXIS 8246 (2d Cir. April 21, 2009): [Law Firm Must Act with Bad Faith Independent of Partner’s, in Order to Warrant Inherent Power Sanctions Against the Firm] The district court…
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Work Product Protection Waived By Creating It in Plain Sight of Opponent

From Pahl v. Robinson, 2009 U.S. Dist. LEXIS 34668 (M.D. Ga. April 22, 2009): On January 14, 2008, Defendant was driving his Crown Victoria on Georgia 137 when he struck Plaintiff Paul Pahl, who was riding a bicycle. Defendant's counsel hired videographers and photographers to videotape and photograph the collision scene on January 13 an ...
From Pahl v. Robinson, 2009 U.S. Dist. LEXIS 34668 (M.D. Ga. April 22, 2009): On January 14, 2008, Defendant was driving his Crown Victoria on Georgia 137 when he struck Plaintiff Paul Pahl, who was riding a bicycle. Defendant’s counsel…
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When Reasonable Attorneys’ Fees Are an Element of Damages, Defendant Has a Seventh Amendment Right to a Jury Trial to Quantify Them, Unless Summary Judgment Is Appropriate

From J.R. Simplot Co. v. Chevron Pipeline Co., 2009 U.S. App. LEXIS 8398 (10th Cir. April 23, 2009): J.R. Simplot Company… sued Chevron Pipeline Company… for failure to defend and indemnify Simplot pursuant to two sales agreements. Chevron denied its liability and asserted counterclaims. The district court granted summary judgment in ...
From J.R. Simplot Co. v. Chevron Pipeline Co., 2009 U.S. App. LEXIS 8398 (10th Cir. April 23, 2009): J.R. Simplot Company… sued Chevron Pipeline Company… for failure to defend and indemnify Simplot pursuant to two sales agreements. Chevron denied its…
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No Pendent Appellate Jurisdiction Over Denial of Summary Judgment Is Conferred by Appealable, Intertwined Denial of Preliminary Injunction — At Least, Where Possibility of Prevailing Still Exists

From Byrum v. Landreth, 2009 U.S. App. LEXIS 8312 (5th Cir. April 22, 2009): In this commercial speech case, the appellants would prevent Texas from enforcing its interior design "titling" law, which prohibits unlicensed practitioners from using the terms "interior designer" or "interior design" to describe their trade and the services ...
From Byrum v. Landreth, 2009 U.S. App. LEXIS 8312 (5th Cir. April 22, 2009): In this commercial speech case, the appellants would prevent Texas from enforcing its interior design “titling” law, which prohibits unlicensed practitioners from using the terms “interior…
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Spoliation Inference on Summary Judgment — Ready Availability of Evidence Elsewhere Precludes Finding of Spoliation, Despite Destruction

From Rattray v. Lippmann-Milwaukee, Inc., 2009 U.S. Dist. LEXIS 18045 (E.D. Wis. Mar. 5, 2009), an employment discrimination action brought by an African American: The main focus of Rattray's harassment claim is the note stating "dirty n****r" that was placed on his locker at work. This racial epithet is unambiguously serious and offensiv ...
From Rattray v. Lippmann-Milwaukee, Inc., 2009 U.S. Dist. LEXIS 18045 (E.D. Wis. Mar. 5, 2009), an employment discrimination action brought by an African American: The main focus of Rattray’s harassment claim is the note stating “dirty n****r” that was placed…
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What Is an “Action?” — Defendant Does Not “Bring an Action” in Filing a Compulsory Counterclaim

From Jonathan H. v. Souderton Area School Dist., 2009 U.S. App. LEXIS 7794 (3d Cir. April 14, 2009): This appeal presents a question of first impression concerning the timing of a compulsory counterclaim under the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004 ...
From Jonathan H. v. Souderton Area School Dist., 2009 U.S. App. LEXIS 7794 (3d Cir. April 14, 2009): This appeal presents a question of first impression concerning the timing of a compulsory counterclaim under the Individuals with Disabilities Education Act,…
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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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