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

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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Rule 60(a) Motion to Correct Clerical Error Filed within 10 Days of Judgment Tolls the time for Filing of Appeal

From Catz v. Chalker, 2009 U.S. App. LEXIS 10908 (9th Cir. May 13, 2009): [This appeal] presents us with an issue of first impression in this circuit: whether a motion to correct a clerical mistake pursuant to Fed. R. Civ. P. 60(a) filed within ten days of the entry of judgment tolls the time for the filing of an appeal under Fed. R. App ...
From Catz v. Chalker, 2009 U.S. App. LEXIS 10908 (9th Cir. May 13, 2009): [This appeal] presents us with an issue of first impression in this circuit: whether a motion to correct a clerical mistake pursuant to Fed. R. Civ.…
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Self-Authentication of Evidence Downloaded from Public Authorities’ Websites — Who Must Create It & What Is a Public Authority?

From Williams v. Long, 2008 U.S. Dist. LEXIS 91110 (D. Md. Nov. 10, 2008): Exhibit # 1 was a copy of printed search results from the Maryland Judiciary Case Search website, which was not authenticated by affidavit or other extrinsic evidence. The printed webpages contained information pertaining to three independent lawsuits…. ...
From Williams v. Long, 2008 U.S. Dist. LEXIS 91110 (D. Md. Nov. 10, 2008): Exhibit # 1 was a copy of printed search results from the Maryland Judiciary Case Search website, which was not authenticated by affidavit or other extrinsic…
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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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Recent Posts

RICO: (1) Assignability of RICO Claims Uncertain — (2) Declining to Decide Whether Indirect-Purchaser Rule Applies to RICO (Given the Directness Requirement, How Much Does It Matter?) — (3) Two Types of Directness of Injury in Proximate Cause Analysis — (4) Proximate Cause As a Court Not Jury Issue in the First Instance

(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

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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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