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 — 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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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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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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