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

Surveillance Video — Work Product and the Scope of Implied Waiver

From Ward v. AT Sys., Inc., 2008 U.S. Dist. LEXIS 67990 (E.D. Pa. Sept. 9, 2008), a personal injury action in which the plaintiff sought surveillance tapes made by the defendants: Because video surveillance of a plaintiff would tend to show a plaintiff's physical condition, movements and restrictions, courts generally consider such video ...
From Ward v. AT Sys., Inc., 2008 U.S. Dist. LEXIS 67990 (E.D. Pa. Sept. 9, 2008), a personal injury action in which the plaintiff sought surveillance tapes made by the defendants: Because video surveillance of a plaintiff would tend to…
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Standards for Setting Aside Default Judgment Due to Mistake, Inadvertence, Surprise, or Excusable Neglect — Rule 60(b)(1)

From Fine v. Evergreen Aviation Ground Logistics Enter., 2009 U.S. Dist. LEXIS 22611 (E.D. Tex. Mar. 20, 2009): Granting or denying a motion to set aside a default judgment under Federal Rule of Civil Procedure 60(b) rests within the sound discretion of the trial court….Rule 60(b) provides the Court with "a grand reservoir of equitable ...
From Fine v. Evergreen Aviation Ground Logistics Enter., 2009 U.S. Dist. LEXIS 22611 (E.D. Tex. Mar. 20, 2009): Granting or denying a motion to set aside a default judgment under Federal Rule of Civil Procedure 60(b) rests within the sound…
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Daubert — Gatekeeper vs. Cross-Examination — Factors

From Powers v. Union Pac. RR, 2009 U.S. Dist. LEXIS 22131 (E.D. Tex. Mar. 19, 2008): Trial courts are charged with the responsibility of acting as the gatekeepers of expert testimony. *** [Footnote 3] This being said, "the trial court's role as gatekeeper is not intended to serve as a replacement for the adversary ...
From Powers v. Union Pac. RR, 2009 U.S. Dist. LEXIS 22131 (E.D. Tex. Mar. 19, 2008): Trial courts are charged with the responsibility of acting as the gatekeepers of expert testimony. *** [Footnote 3] This being said, “the trial court’s…
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Electronic Discovery — Metadata Discrepancies Warranting Re-Production of Email from Alternate Source in Native Format — Grounds for Obtaining Mirror Image of Hard Drive

From White v. Graceland College Ctr. for Prof’l Dev. & Lifelong Learning, Inc., 2009 U.S. Dist. LEXIS 22068 (D. Kan. Mar. 18, 2009): [Discrepancies Warranting Production of Metadata] The report provided by Plaintiff's computer expert … indicates that he found discrepancies between the creation and sent dates of the ema ...
From White v. Graceland College Ctr. for Prof’l Dev. & Lifelong Learning, Inc., 2009 U.S. Dist. LEXIS 22068 (D. Kan. Mar. 18, 2009): [Discrepancies Warranting Production of Metadata] The report provided by Plaintiff’s computer expert … indicates that he found…
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Experts — Second Report Not “Supplemental” within Rule 26(e)(1), Just Untimely

From Welch v. Eli Lilly & Co. , 2009 U.S. Dist. LEXIS 21417 (S.D. Ind. Mar. 16, 2009): Plaintiffs' claim that Dr. Seberhagen's new report is merely a supplement rings hollow. Rule 26(e) provides that a party must supplement or correct a disclosure or response "if the party learns that in some material respect the disclosure or response i ...
From Welch v. Eli Lilly & Co. , 2009 U.S. Dist. LEXIS 21417 (S.D. Ind. Mar. 16, 2009): Plaintiffs’ claim that Dr. Seberhagen’s new report is merely a supplement rings hollow. Rule 26(e) provides that a party must supplement or…
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RICO — Corporation + Subsidiaries + Respective Officers/Employees ≠ Enterprise

From Cardinal Health Solutions, Inc. v. Valley Baptist Med. Ctr., 2009 U.S. Dist. LEXIS 3909 (S.D. Tex. Jan. 21, 2009)): Defendants allege that "Cardinal Health, Inc., Cardinal Health Solutions, Inc., Cardinal Health 101, Inc., Cardinal Health 109, Inc., Cardinal Health 303, Inc., Cardinal Distribution and their officers, agents and emplo ...
From Cardinal Health Solutions, Inc. v. Valley Baptist Med. Ctr., 2009 U.S. Dist. LEXIS 3909 (S.D. Tex. Jan. 21, 2009)): Defendants allege that “Cardinal Health, Inc., Cardinal Health Solutions, Inc., Cardinal Health 101, Inc., Cardinal Health 109, Inc., Cardinal Health…
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Truth as an Affirmative Defense to Tortious Interference — Not in Virginia or North Carolina

From Smithfield Foods, Inc. v. United Food & Commercial Workers Int’l Union, 593 F.Supp.2d 840 (E.D. Va. 2008): The parties agree that whether "truth" can serve as an affirmative defense to tortious interference would present an issue of first impression in Virginia. In support of its Motion, Smithfield primarily relies on the ...
From Smithfield Foods, Inc. v. United Food & Commercial Workers Int’l Union, 593 F.Supp.2d 840 (E.D. Va. 2008): The parties agree that whether “truth” can serve as an affirmative defense to tortious interference would present an issue of first impression…
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Res Judicata (Merger) Not a Meritorious Defense Where Parties Agree to Claim-Splitting

From Ex-Im Bank of U.S. v. Advanced Polymer Sciences, Inc., 2009 U.S. Dist. LEXIS 18855 (N.D. Ohio Mar. 11, 2009) (applying Ohio law): "Res judicata extinguishes 'all rights of the plaintiff to remedies against the defendant with respect to all or any part or [sic] the transaction, or series of connected transactions, out of which the act ...
From Ex-Im Bank of U.S. v. Advanced Polymer Sciences, Inc., 2009 U.S. Dist. LEXIS 18855 (N.D. Ohio Mar. 11, 2009) (applying Ohio law): “Res judicata extinguishes ‘all rights of the plaintiff to remedies against the defendant with respect to all…
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Special Masters and E-Discovery

Judge Shira A. Scheindlin of the United States District Court for the Southern District of New York and Jonathan M. Redgrave have co-authored an extremely useful article, Special Masters and E-Discovery: The Intersection of Two Recent Revisions to the Federal Rules of Civil Procedure, 30 Cardozo L. Rev. 347 (2008). In addition to a scholarly exposition of t ...
Judge Shira A. Scheindlin of the United States District Court for the Southern District of New York and Jonathan M. Redgrave have co-authored an extremely useful article, Special Masters and E-Discovery: The Intersection of Two Recent Revisions to the Federal…
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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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