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 — 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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Civil RICO and Extraterritoriality

From Wiwa v. Royal Dutch Petroleum Co., 2009 U.S. Dist. LEXIS 34843 (S.D.N.Y. Mar. 18, 2009): The RICO statute is silent as to its extraterritorial application. See North South Fin. Corp. v. Al-Turki, 100 F.3d 1046, 1051 (2d Cir. 1996). The Second Circuit Court of Appeals ("Second Circuit") has not determined what test district c ...
From Wiwa v. Royal Dutch Petroleum Co., 2009 U.S. Dist. LEXIS 34843 (S.D.N.Y. Mar. 18, 2009): The RICO statute is silent as to its extraterritorial application. See North South Fin. Corp. v. Al-Turki, 100 F.3d 1046, 1051 (2d Cir. 1996).…
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Expert Report and Deposition Testimony as Party Admission

Reports of retained experts and their deposition testimony constitute party admissions under Rule 801(d)(2)(B), (C), and/or (D). See Kreppel v. Guttman Breast Diagnostic Inst., Inc., No. 95 Civ. 10830(SWK)(MHD), 1999 WL 1243891 (S.D.N.Y. Dec. 21, 1999) (Rule 801(d)(2)(B)); Dean, by Williams v. Watson, 1995 WL 692020, at **9-10 (N.D. Ill. Feb. 28, 1996 ...
Reports of retained experts and their deposition testimony constitute party admissions under Rule 801(d)(2)(B), (C), and/or (D). See Kreppel v. Guttman Breast Diagnostic Inst., Inc., No. 95 Civ. 10830(SWK)(MHD), 1999 WL 1243891 (S.D.N.Y. Dec. 21, 1999) (Rule 801(d)(2)(B)); Dean, by…
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Lawyer-Witness Disqualification — Standards under New York Law

From Pu v. Greenthal Mgmt. Corp., 2009 U.S. Dist. LEXIS 19554 (S.D.N.Y. Mar. 10, 2009): The current New York Lawyer's Code of Professional Responsibility addresses circumstances meriting attorney disqualification where counsel may be required to serve as a trial witness. See DR 5-102, codified as N.Y. COMP. CODES R. & REGS. tit. 2 ...
From Pu v. Greenthal Mgmt. Corp., 2009 U.S. Dist. LEXIS 19554 (S.D.N.Y. Mar. 10, 2009): The current New York Lawyer’s Code of Professional Responsibility addresses circumstances meriting attorney disqualification where counsel may be required to serve as a trial witness.…
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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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Recent Posts

Patently Frivolous RICO Complaint Fails to Confer Federal Question Jurisdiction — Subject to Rule 12(b)(1) for Lack of Subject Matter Jurisdiction

Inherent Power Sanctions — Dismissal — Abuse of Discretion Review Is “More Exacting” When Judge is “Accuser, Fact Finder and Sentencing Judge All in One” — Client Responsible for Her Lawyer’s Discovery Defalcations — No Need for Evidentiary Hearing When Sanctions Based Entirely on an Established Record — Lesser Sanctions Reasonably Determined to be Ineffective Given Record of Repeated Discovery Abuses

Inherent Power Sanction of Dismissal for Fraud on the Court — Fabrication of Evidence and Lying about It to the Court — 2-Part Test for Dismissal Sanction (Eleventh Circuit) — Whether Fraud on Court Was Committed for the Court, Not a Jury

New York Law Firm That Advised Florida Resident for Years Subject to Personal Jurisdiction in Florida, Thus Subject to 28 U.S.C. § 1782 in Florida — Court Cannot Amend Protective Order Following Dismissal of Case Unless the Order Retains Jurisdiction Post-Dismissal — Parties Can Enforce Stipulated Protective Order Post-Dismissal Through Breach of Contract Action

Rule 37(e)/Spoliation — “Intent to Deprive” Determined under the Preponderance of the Evidence Standard — Court May Make Determination Or Allow Jury to Do So — Lesser “Culpable Conduct” Standard of Residential Funding Continues to Apply in Second Circuit Outside ESI Context — Once Judge Has Definitively Ruled on the Record Denying A Requested Instruction, Counsel Is Not Required to Object to the Charge Again at Trial to Preserve Issue for Appeal

Rule 11 (9011) and Inherent Power Sanctions for “Unapologetic [Refusal to Apologize] Defiance” of Court’s Rules and Orders — Advising Client to Take Steps That Same Judge Had Told Lawyer Were Improper in Prior Case — Obstinate Recidivism — Silence upon Withdrawal of Motion As Rule 11 (9011) Violation (Noted But Not Addressed on Appeal)

Rule 37 Sanctions Properly Denied for Failure to Produce Documents That Were Already in the Requester’s Possession And Were Not Relevant to The Principal Issue in the Lawsuit — Experts/Daubert: Exclusion Appropriate Where Opinion Was Predicated on Erroneous Assumptions of Law

Supreme Court: Obtaining a Preliminary Injunction Does Not Render the Plaintiff a “Prevailing Party” Entitled to Attorney’s Fees — Must Win “Enduring Relief” On The Merits From A Judicial Order — Extraneous Events, Like Legislation, That Preserve The Outcome And Moot The Lawsuit Do Not Turn The Plaintiff into A Prevailing Party (Note, However, That A Defendant Need Not Obtain A Favorable Judgment On The Merits In Order To Be A “Prevailing Party”)

Supreme Court: When A Plaintiff Amends The Complaint To Delete The Federal-Law Claims That Enabled Removal To Federal Court, Leaving Only State-Law Claims, The Federal Court Loses Supplemental Jurisdiction, And The Case Must Be Remanded To State Court

Supreme Court: A Rule 41(a) Voluntary Dismissal Without Prejudice = A Final Proceeding Within Rule 60(b) — Advisory Committee Notes Are “A Reliable Source Of Insight Into The Meaning Of A Rule” — Prior to Dismissal or Entry of Judgment, A District Court May Always Rehear and Reconsider Prior Rulings

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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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