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

Filing Documents under Seal with Complaint Waives Attorney-Client Privilege and Work Product Protection — Extent of Waiver

From U.S. ex rel. Schweitzer v. Oce, N.V., 2008 U.S. Dist. LEXIS 108119 (D.D.C. Sept. 15, 2008): Stated succinctly, the question before the Court is whether filing documents under seal along with one's complaint waives the attorney-client and work product privileges. It appears that no court in this Circuit has yet addressed this particu ...
From U.S. ex rel. Schweitzer v. Oce, N.V., 2008 U.S. Dist. LEXIS 108119 (D.D.C. Sept. 15, 2008): Stated succinctly, the question before the Court is whether filing documents under seal along with one’s complaint waives the attorney-client and work product…
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Federal Arbitration Act & Diversity Jurisdiction (Part 2) — Jurisdiction to Confirm Award Based on Unarbitrated, Stayed Claims

Following up on our post of August 23, 2008, concerning the D.C. Circuit’s decision Karsner v. Lothian, 532 F.3d 876, 882-883 (D.C. Cir. 2008), the following is from U-Save Auto Rental of Am., Inc. v. Furlo, 2009 U.S. Dist. LEXIS 26341 (S.D. Miss. Mar. 31, 2009)): At issue on defendants' motion is whether this court had jurisdic ...
Following up on our post of August 23, 2008, concerning the D.C. Circuit’s decision Karsner v. Lothian, 532 F.3d 876, 882-883 (D.C. Cir. 2008), the following is from U-Save Auto Rental of Am., Inc. v. Furlo, 2009 U.S. Dist. LEXIS…
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Sanctions — Not Chilling Creativity vs. Acquiescing in Misconduct

Three cases: From Colliton v. Donnelly, 2009 U.S. Dist. LEXIS 26072 (S.D.N.Y. Mar. 27, 2009): The Supreme Court has noted that Rule 11 "must be read in light of concerns that it will . . . chill vigorous advocacy." Cooter & Gell v. Hartmarx Corp. , 496 U.S. 384, 393, 110 S. Ct. 2447 (1990). Therefore, "[w] divining the p ...
Three cases: From Colliton v. Donnelly, 2009 U.S. Dist. LEXIS 26072 (S.D.N.Y. Mar. 27, 2009): The Supreme Court has noted that Rule 11 “must be read in light of concerns that it will . . . chill vigorous advocacy.” Cooter…
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Spoliation — Destruction of Laptop Leads to Dismissal of Plaintiff’s Complaint and Adverse Inference on Counterclaims

From Kvitka v. Puffin Co., 2009 U.S. Dist. LEXIS 11214 (M.D. Pa. Feb. 13, 2009): Plaintiff Nancy Kvitka ("Kvitka") and Plaintiff Nikel Enterprises, Inc. ("Nikel") (collectively "Plaintiffs") purchase and sell antique French and German bisque-headed dolls made during the late Nineteenth and early Twentieth Century…. Antique Doll Collector ...
From Kvitka v. Puffin Co., 2009 U.S. Dist. LEXIS 11214 (M.D. Pa. Feb. 13, 2009): Plaintiff Nancy Kvitka (“Kvitka”) and Plaintiff Nikel Enterprises, Inc. (“Nikel”) (collectively “Plaintiffs”) purchase and sell antique French and German bisque-headed dolls made during the late…
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Email Evidence — Admissibility

From CA, Inc. v. Simple.com, Inc., 2009 U.S. Dist. LEXIS 25242 (E.D.N.Y. Mar. 5, 2009): When proffering emails as evidence, parties have to contend with hearsay objections, just as they would with hand written correspondences. 5 -900 Weinstein's Federal Evidence § 900.07; see also Fed. R. Evid. 802 (the hearsay rule); Gregory ...
From CA, Inc. v. Simple.com, Inc., 2009 U.S. Dist. LEXIS 25242 (E.D.N.Y. Mar. 5, 2009): When proffering emails as evidence, parties have to contend with hearsay objections, just as they would with hand written correspondences. 5 -900 Weinstein’s Federal Evidence…
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RICO — PSLRA Bar — Irrelevant whether Plaintiff Could File a Securities Fraud Action — Bar Applies if Anyone Could

From Thomas H. Lee Equity Fund V, LP v. Mayer Brown, Rowe & Maw LLP, 2009 U.S. Dist. LEXIS 23611 (S.D.N.Y. Mar. 23, 2009): The THL Funds contend that they have pleaded a RICO claim only in event that the Court determines that the equity interests that the THL Funds acquired in Refco through the 2004 Purchase are not securities and therefo ...
From Thomas H. Lee Equity Fund V, LP v. Mayer Brown, Rowe & Maw LLP, 2009 U.S. Dist. LEXIS 23611 (S.D.N.Y. Mar. 23, 2009): The THL Funds contend that they have pleaded a RICO claim only in event that the…
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Withdrawal of Rule 36 Admissions — Standards

From Craft v. Flagg, 2009 U.S. Dist. LEXIS 23529 (N.D. Ill. Mar. 20, 2009): Federal Rule of Civil Procedure 36(b) invests discretion in the Court to permit a party to withdraw admissions. Banos v. City of Chicago, 398 F.3d 889, 892 (7th Cir. 2005). Rule 36(b) provides: A matter admitted under this rule is con ...
From Craft v. Flagg, 2009 U.S. Dist. LEXIS 23529 (N.D. Ill. Mar. 20, 2009): Federal Rule of Civil Procedure 36(b) invests discretion in the Court to permit a party to withdraw admissions. Banos v. City of Chicago, 398 F.3d 889,…
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Party Admissions Need Not Otherwise Satisfy Rule 701 or 702

Admissions of a party fall within the hearsay exception of 801(d)(2) and may be admitted even though they would not otherwise satisfy Rule 701 or 702. Aliotta v. Nat’l Railroad Passenger Corp., 315 F. 3d 756, 761 (7th Cir. 2003) (testimony that was barred under Fed.R.Evid. 702 because it was scientific but unreliable can be admissible under Rule 801(d)(2) ...
Admissions of a party fall within the hearsay exception of 801(d)(2) and may be admitted even though they would not otherwise satisfy Rule 701 or 702. Aliotta v. Nat’l Railroad Passenger Corp., 315 F. 3d 756, 761 (7th Cir. 2003)…
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Delay in Asserting Claim as Evidence of Lack of Merit of Claim

Lengthy delay in asserting a claim, without explanation, may be taken by the finder of fact as evidence that the claim lacks merit. Lumbra v. U.S. , 290 U.S. 551, 560-561 (1934) (“And in the absence of clear and satisfactory evidence explaining, excusing or justifying it, petitioner’s long delay before bringing suit is to be taken as strong evidence” h ...
Lengthy delay in asserting a claim, without explanation, may be taken by the finder of fact as evidence that the claim lacks merit. Lumbra v. U.S. , 290 U.S. 551, 560-561 (1934) (“And in the absence of clear and satisfactory…
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Outside Reverse Piercing of Corporate Veil Rejected under California Law — Bi-Directional Alter Ego Doctrine Distinguished

From Greiling v. Zahoudanis, 2009 U.S. Dist. LEXIS 22890 (C.D. Cal. Mar. 13, 2009): Although Plaintiff attempts to apply an alter ego theory, the instant factual scenario calls for application of the outside reverse piercing theory. Plaintiff, a third party creditor, seeks to pierce the corporate veil from the outside, attempting to have ...
From Greiling v. Zahoudanis, 2009 U.S. Dist. LEXIS 22890 (C.D. Cal. Mar. 13, 2009): Although Plaintiff attempts to apply an alter ego theory, the instant factual scenario calls for application of the outside reverse piercing theory. Plaintiff, a third party…
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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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