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 — Incurring Legal Fees ≠ Injury within § 1964(c)

Thomas v. Baca, 2009 U.S. App. LEXIS 2394 (9th Cir. Jan. 9, 2009): “This court has not recognized the incurment of legal fees as an injury cognizable under RICO, and we decline to do so here.” ...
Thomas v. Baca, 2009 U.S. App. LEXIS 2394 (9th Cir. Jan. 9, 2009): “This court has not recognized the incurment of legal fees as an injury cognizable under RICO, and we decline to do so here.”
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Municipal Entities’ Immunity from RICO Extends to Municipal Employees to the Extent They Act in Their Official Capacity, Only

Two cases: • From LaFlamboy v. Landek, 587 F. Supp. 2d 914 (N.D. Ill. 2008): The Village Defendants also argue that because municipal corporations cannot be held liable under RICO, see Lancaster Cnty. Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397, 404-05 (9th Cir. 1991), Village employees escape RICO liability f ...
Two cases: • From LaFlamboy v. Landek, 587 F. Supp. 2d 914 (N.D. Ill. 2008): The Village Defendants also argue that because municipal corporations cannot be held liable under RICO, see Lancaster Cnty. Hosp. v. Antelope Valley Hosp. Dist., 940…
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30(b)(6) Testimony Must Satisfy the Hearsay Rule to be Admissible

30(b)(6) testimony is frequently taken from an adverse party and comprises an admission under Federal Rule of Evidence 801(d) and Federal Rule of Civil Procedure 32(a)(3). Not always. If not, it must otherwise satisfy hearsay and competency requirements. From Century Pac., Inc. v. Hilton Hotels Corp., 528 F. Supp. 2d 206, 215 n. 5 (S.D.N.Y. 2007):
30(b)(6) testimony is frequently taken from an adverse party and comprises an admission under Federal Rule of Evidence 801(d) and Federal Rule of Civil Procedure 32(a)(3). Not always. If not, it must otherwise satisfy hearsay and competency requirements. From Century…
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RICO, Twombly and Fact Pleading

From Clark v Porcelli, 2009 U.S. Dist. LEXIS 5677 (M.D. Fla. Jan. 27, 2009): The Federal Rules of Civil Procedure generally do not require a plaintiff to set out in detail the facts upon which he bases his claim. Instead, all that is ordinarily required is that the claimant set forth a "short and plain statement of his claim showing that ...
From Clark v Porcelli, 2009 U.S. Dist. LEXIS 5677 (M.D. Fla. Jan. 27, 2009): The Federal Rules of Civil Procedure generally do not require a plaintiff to set out in detail the facts upon which he bases his claim. Instead,…
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Sanctions — Sixth Circuit Finally Agrees that Spoliation Sanctions are a Matter of Federal, Not State, Law

From Adkins v. Wolever, 2009 U.S. App. LEXIS 2397 (6th Cir. Feb. 4, 2009) (en banc): We reheard this case en banc to resolve a choice-of-law question: Does state law control a federal court's imposition of sanctions as relief for spoliated evidence? The original panel, constrained by our earlier opinions that applied state law to determ ...
From Adkins v. Wolever, 2009 U.S. App. LEXIS 2397 (6th Cir. Feb. 4, 2009) (en banc): We reheard this case en banc to resolve a choice-of-law question: Does state law control a federal court’s imposition of sanctions as relief for…
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Summary Judgment — Non-Contradictory Affidavits from Deponents — “Self-Serving” Affidavits — Separate Representation on Sanctions Motion

From Moore v. Vital Prods., Inc., 2009 U.S. Dist. LEXIS 7878 (N.D. Ill. Feb. 3, 2009): First, there is nothing untoward about defendant offering affidavits from individuals who previously were deposed. A party is permitted to offer depositions as well as affidavits and/or declarations on summary judgment; these may be offered together, i ...
From Moore v. Vital Prods., Inc., 2009 U.S. Dist. LEXIS 7878 (N.D. Ill. Feb. 3, 2009): First, there is nothing untoward about defendant offering affidavits from individuals who previously were deposed. A party is permitted to offer depositions as well…
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Waiver of Right to Remove

From Kosen v. Ruffing, 2009 U.S. Dist. LEXIS 659 (S.D. Cal. Jan. 5, 2009): A defendant may waive their [sic] right to remove a case to federal court by "tak[ing] actions in state court that manifest his or her intention to have the matter adjudicated there, and to abandon his or her right to a federal forum." Resolution Trust C ...
From Kosen v. Ruffing, 2009 U.S. Dist. LEXIS 659 (S.D. Cal. Jan. 5, 2009): A defendant may waive their [sic] right to remove a case to federal court by “tak[ing] actions in state court that manifest his or her intention…
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Tentative Experts

Three cases: • From Nomo Agroindustrial SA de CV v. Enza Zaden N. Am., Inc., 2009 U.S. Dist. LEXIS 8657 (D. Ariz. Jan. 29, 2009): See U.S. v. Rahm, 993 F.2d 1405, 1410, 1412 (9th Cir. 1993)(emphasizing that "[c]ertainty is an unreasonable expectation in the realm of expert opinion. [An expert's] use of t ...
Three cases: • From Nomo Agroindustrial SA de CV v. Enza Zaden N. Am., Inc., 2009 U.S. Dist. LEXIS 8657 (D. Ariz. Jan. 29, 2009): See U.S. v. Rahm, 993 F.2d 1405, 1410, 1412 (9th Cir. 1993)(emphasizing that “[c]ertainty is…
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Expedited Discovery — Good Cause — Required Showing

From Giltnane v. TVA, 2009 U.S. Dist. LEXIS 6734 (E.D. Tenn. Jan. 30, 2009), quoting In re Paradise Valley Holdings, Inc., No. 03-34704, 2005 Bankr. LEXIS 2951 (Bankr. E.D. Tenn. Dec. 29, 2005): "'Although [Rule 26(d)] does not say so, it is implicit that some showing of good cause should be made to justify [an order allowing e ...
From Giltnane v. TVA, 2009 U.S. Dist. LEXIS 6734 (E.D. Tenn. Jan. 30, 2009), quoting In re Paradise Valley Holdings, Inc., No. 03-34704, 2005 Bankr. LEXIS 2951 (Bankr. E.D. Tenn. Dec. 29, 2005): “‘Although [Rule 26(d)] does not say so,…
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Inherent Power Sanctions — Full Cost of Defense Imposed on Plaintiff for Perjury, Fabrication of Evidence, and Attacks on Opposing Counsel

From Barash v. Kates, 2008 U.S. Dist. LEXIS 106809 (S.D. Fla. Oct. 23, 2008): ...Barash should be sanctioned for the full amount of attorney's fees incurred by Kates in defending this action. Standing alone, perjury is both a "serious offense that results in incalculable harm to the functioning and integrity of the legal system as well a ...
From Barash v. Kates, 2008 U.S. Dist. LEXIS 106809 (S.D. Fla. Oct. 23, 2008): …Barash should be sanctioned for the full amount of attorney’s fees incurred by Kates in defending this action. Standing alone, perjury is both a “serious offense…
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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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