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

Public Records on Dismissal Motions — Eighth Circuit Standard

From Vacanti v. Sunset Fin. Servs., Inc., 2009 U.S. Dist. LEXIS 23173 (D. Neb. Mar. 23, 2009): In deciding the issues raised by the Motion to Dismiss, the Court is "not precluded in [its] review of the complaint from taking notice of items in the public record." Papasan v. Allain, 478 U.S. 265, 269 n. 1, 106 S. Ct. 2932, 92 L. Ed ...
From Vacanti v. Sunset Fin. Servs., Inc., 2009 U.S. Dist. LEXIS 23173 (D. Neb. Mar. 23, 2009): In deciding the issues raised by the Motion to Dismiss, the Court is “not precluded in [its] review of the complaint from taking…
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28 U.S.C. § 1404(a) and Electronically Aided Discovery

From Casana Furniture Co. v. Coaster Co. of Am., 2009 U.S. Dist. LEXIS 23141 (M.D.N.C. Mar. 24, 2009): [T]he location of relevant permanent records or other evidence has not yet been determined. But regardless of their location, any files, records, and documents that Coaster apparently keeps in California can be easily copied and transp ...
From Casana Furniture Co. v. Coaster Co. of Am., 2009 U.S. Dist. LEXIS 23141 (M.D.N.C. Mar. 24, 2009): [T]he location of relevant permanent records or other evidence has not yet been determined. But regardless of their location, any files, records,…
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Arbitration and Appraisal — Court Enforces Mandatory Appraisal Clause Even Though No Appraisers Exist Who Possess the Contractual Qualifications

From Singleton v. Grade A Market, Inc., 2009 U.S. Dist. LEXIS 31026 (D. Conn. April 13, 2009): The precise question presented in this case -- whether a clause in a lease agreement, which clause requires the parties to the lease to settle a rent dispute through appraisal, is rendered void by the unavailability of appraisers with the exact q ...
From Singleton v. Grade A Market, Inc., 2009 U.S. Dist. LEXIS 31026 (D. Conn. April 13, 2009): The precise question presented in this case — whether a clause in a lease agreement, which clause requires the parties to the lease…
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Spoliation of One Defendant’s Evidence by Consultant Retained by Joint Counsel Exposes All Jointly-Represented Co-Defendants to Sanctions

In United States v. Maxxam, Inc., 2009 U.S. Dist. LEXIS 30743 (N.D. Cal. Mar. 29, 2009), the plaintiff claimed that certain evidence in the possession of one defendant was spoliated by a consultant and that the spoliation was attributable to that defendant’s counsel. The same counsel also jointly represented two other defendants (the corporate parent and g ...
In United States v. Maxxam, Inc., 2009 U.S. Dist. LEXIS 30743 (N.D. Cal. Mar. 29, 2009), the plaintiff claimed that certain evidence in the possession of one defendant was spoliated by a consultant and that the spoliation was attributable to…
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E.D.N.Y. Denies Bear Stearns Prosecutors an Injunction Blocking a FINRA Arbitration that Will Disclose Relevant Evidence

From United States v. Fin. Indus. Reg. Auth., 2009 U.S. Dist. LEXIS 30485 (E.D.N.Y. April 9, 2009): A district court unquestionably has the authority under the All Writs Act, 28 U.S.C. § 1651(a), to enjoin proceedings that threaten to interfere with its jurisdiction over a pending criminal case. *** Determining whether to enjoin a ...
From United States v. Fin. Indus. Reg. Auth., 2009 U.S. Dist. LEXIS 30485 (E.D.N.Y. April 9, 2009): A district court unquestionably has the authority under the All Writs Act, 28 U.S.C. § 1651(a), to enjoin proceedings that threaten to interfere…
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Federal Arbitration Act Precludes Parties from Contracting under State Law for Broader Judicial Review Once Motion to Vacate Is Removed, Provided FAA Applies

From McQueen-Starling v. UnitedHealth Group, Inc., 2009 U.S. Dist. LEXIS 23266 (S.D.N.Y. Mar. 20, 2009): In Hall Street Assocs., LLC v. Mattel, Inc., 128 S. Ct. 1396 (2008), the Supreme Court addressed the question of whether parties could supplement by contract the statutory grounds for vacating an arbitration award provided in th ...
From McQueen-Starling v. UnitedHealth Group, Inc., 2009 U.S. Dist. LEXIS 23266 (S.D.N.Y. Mar. 20, 2009): In Hall Street Assocs., LLC v. Mattel, Inc., 128 S. Ct. 1396 (2008), the Supreme Court addressed the question of whether parties could supplement by…
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CAFA — Third Circuit Defines Local Controversy Elements — Jurisdiction Assessed Based on Defendants Remaining in Action — Plaintiff Bears Burden of Proving Lack of Federal Jurisdiction

From Kaufman v. Allstate N.J. Ins. Co., 2009 U.S. App. LEXIS 6429 (3d Cir. Mar. 26, 2009): The Class Action Fairness Act of 2005 (CAFA) confers jurisdiction on federal courts over certain class actions in which any defendant and any class member are citizens of different states. 28 U.S.C. § 1332(d)(2). CAFA further enables any defendan ...
From Kaufman v. Allstate N.J. Ins. Co., 2009 U.S. App. LEXIS 6429 (3d Cir. Mar. 26, 2009): The Class Action Fairness Act of 2005 (CAFA) confers jurisdiction on federal courts over certain class actions in which any defendant and any…
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RICO — Materiality Not an Element of Mail Fraud —Standing Need Not be Pled with Specificity

From Myrus Hack, LLC v. McDonald’s Corp., 2009 U.S. Dist. LEXIS 25765 (D.N.J. Mar. 27, 2009): The Supreme Court teaches that "mail fraud requires two elements — (1) having devised or intending to devise a scheme to defraud (or to perform specified fraudulent acts), and (2) use of the mail for the purpose of executing, or attempting to e ...
From Myrus Hack, LLC v. McDonald’s Corp., 2009 U.S. Dist. LEXIS 25765 (D.N.J. Mar. 27, 2009): The Supreme Court teaches that “mail fraud requires two elements — (1) having devised or intending to devise a scheme to defraud (or to…
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Ethics — Advocate-Witness Rule Warrants Denial of Pro Hac Vice Application and Exclusion from Representation during Pretrial as Well as Trial Proceedings

From Grant v. Kamehameha Schools, 2009 U.S. Dist. LEXIS 26196 (D. Haw. Mar. 30, 2009): Hawaii Rule of Professional Conduct 3.7(a) provides: A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where: (1) the testimony relates to an unconteste ...
From Grant v. Kamehameha Schools, 2009 U.S. Dist. LEXIS 26196 (D. Haw. Mar. 30, 2009): Hawaii Rule of Professional Conduct 3.7(a) provides: A lawyer shall not act as advocate at a trial in which the lawyer is likely to be…
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Sanctions — Misconduct of Counsel Should Not Be Visited on Client Absent Evidence of Client Participation

From In re Central European Indus. Dev. Co., 2009 Bankr. LEXIS 639 (N.D. Cal. Bankr. Jan. 13, 2009): [I]n the context of [Bankruptcy] Rule 9011 sanctions, courts generally disfavor sanctioning a party for its counsel's misconduct unless the party itself is somehow implicated. Shepherd v. Am. Broad. Companies, Inc., 62 F.3d 1469, ...
From In re Central European Indus. Dev. Co., 2009 Bankr. LEXIS 639 (N.D. Cal. Bankr. Jan. 13, 2009): [I]n the context of [Bankruptcy] Rule 9011 sanctions, courts generally disfavor sanctioning a party for its counsel’s misconduct unless the party itself…
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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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