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

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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Issuer Owes No Contractual Duty to Noteholders to File Timely Reports with SEC — Fifth Circuit Agrees with Eighth

From Affiliated Computer Servs., Inc. v. Wilmington Trust Co., 2009 U.S. App. LEXIS 8011 (5th Cir. April 16, 2009): Section 314(a) of the TIA [Turst Indenture Act] requires an issuer of bonds to file with the trustee copies of the annual reports which it is "required to file" with the SEC. See 15 U.S.C. § 77nnn(a). The Indentur ...
From Affiliated Computer Servs., Inc. v. Wilmington Trust Co., 2009 U.S. App. LEXIS 8011 (5th Cir. April 16, 2009): Section 314(a) of the TIA [Turst Indenture Act] requires an issuer of bonds to file with the trustee copies of the…
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RICO — Competitor Not Proximately Injured by Defendant Hospitals’ Fraudulently Inflated Medicare Billing of the Government

From Longmont United Hosp. v. St. Barnabas Corp., 2009 U.S. App. LEXIS 63 (3d Cir. Jan. 5, 2009): This case arises out of a purported scheme to defraud the federal government through the practice of "turbocharging." At its simplest level, the Saint Barnabas Corporation ("SBC"), through a consortium of hospitals that it owned and operated ...
From Longmont United Hosp. v. St. Barnabas Corp., 2009 U.S. App. LEXIS 63 (3d Cir. Jan. 5, 2009): This case arises out of a purported scheme to defraud the federal government through the practice of “turbocharging.” At its simplest level,…
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Ultimate Sanctions, Appellate Review and Evidence; Relationship of Inherent Power and Rule-Specific Sanctions

From Sentis Group, Inc. v. Shell Oil Co., 559 F.3d 888 (8th Cir. 2009): [Appellate Review of Ultimate Sanction] "[A]lthough we review the district court's discovery decisions for an abuse of discretion, we more closely scrutinize dismissal imposed as a discovery sanction because 'the opportunity to be heard is a litigant' ...
From Sentis Group, Inc. v. Shell Oil Co., 559 F.3d 888 (8th Cir. 2009): [Appellate Review of Ultimate Sanction] “[A]lthough we review the district court’s discovery decisions for an abuse of discretion, we more closely scrutinize dismissal imposed as a…
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Email Evidence — Authentication by Production in a Prior Action

From Phillip M. Adams & Assocs., LLC v. Dell, Inc., 2009 U.S. Dist. LEXIS 26964 (D. Utah Mar. 27, 2009)): As to the emails, ASUS says "Plaintiff has not submitted a sworn testimony that the emails attached as Exhibits A through D to its memorandum are authentic under Fed. R. Evid. 901, which requires a witness with "knowledge . . . that ...
From Phillip M. Adams & Assocs., LLC v. Dell, Inc., 2009 U.S. Dist. LEXIS 26964 (D. Utah Mar. 27, 2009)): As to the emails, ASUS says “Plaintiff has not submitted a sworn testimony that the emails attached as Exhibits A…
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Waiver of Work Product Protection by Production Pursuant to Grand Jury Subpoena and Understanding with Government

From United States v. Thompson, 2009 U.S. App. LEXIS 8087 (D.C. Cir. April 17, 2009): This is a third-party appeal of a discovery order in a criminal case compelling the government to produce "all materials disclosed" by the third party pursuant to its cooperation with federal investigators during a criminal investigation of the third par ...
From United States v. Thompson, 2009 U.S. App. LEXIS 8087 (D.C. Cir. April 17, 2009): This is a third-party appeal of a discovery order in a criminal case compelling the government to produce “all materials disclosed” by the third party…
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Recent Posts

RICO: (1) Continuity: 4th Circuit Factors — (2) 4th Circuit Reserves RICO Liability for Unlawful Activities That Pose A Special Threat to Social Well-Being — (3) For Purposes of Determining Closed-Ended Continuity, Even Time-Barred Conduct Considered — (4) No Open-Ended Continuity If Racketeering Activity Has Built-In Ending Point — (5) Unlike General Federal Conspiracy, RICO Conspiracy Doesn’t Require Each Defendant to Perform an Overt Act in Furtherance of the Conspiracy

Whether Party Waived Arbitration by Litigating Is a Question for the Court, Not the Arbitrator

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

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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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