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

Class Actions — Standards for Interlocutory Review under Federal Rule of Civil Procedure 23(f) of Class Certification Orders

From Vallario v. Vandehey, 554 F.3d 1259 (10th Cir. 2009): Interlocutory review of a district court's class certification order is generally appropriate in three types of cases. The first such category is comprised of "death knell cases," which refers to situations in which a questionable class certification order is likely to force ...
From Vallario v. Vandehey, 554 F.3d 1259 (10th Cir. 2009): Interlocutory review of a district court’s class certification order is generally appropriate in three types of cases. The first such category is comprised of “death knell cases,” which refers to…
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Federal Arbitration Act — “Manifest Disregard” After Hall Street — Circuit Split — Fifth Circuit Summary

From Citigroup Global Mkts. Inc. v. Bacon, 2009 U.S. App. LEXIS 4543 (5th Cir. Mar. 9, 2009): The question before us now is whether, under the FAA, manifest disregard of the law remains valid, as an independent ground for vacatur, after Hall Street. The answer seems clear. Hall Street unequivocally held that the statutory ...
From Citigroup Global Mkts. Inc. v. Bacon, 2009 U.S. App. LEXIS 4543 (5th Cir. Mar. 9, 2009): The question before us now is whether, under the FAA, manifest disregard of the law remains valid, as an independent ground for vacatur,…
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Federal Arbitration Act — Court Must Look Through the Arbitration Clause to Ascertain Whether Underlying Dispute Confers Federal Jurisdiction — No Federal Jurisdiction Conferred by Counterclaim

From Vaden v. Discover Bank, No. 07-773, 2009 U.S. 1781 (U.S. Mar. 9, 2009): [No Federal Jurisdiction from Counterclaim.] A complaint purporting to rest on state law, we have recognized, can be recharacterized as one "arising under" federal law if the law governing the complaint is exclusively federal. See Beneficial Nat. Bank ...
From Vaden v. Discover Bank, No. 07-773, 2009 U.S. 1781 (U.S. Mar. 9, 2009): [No Federal Jurisdiction from Counterclaim.] A complaint purporting to rest on state law, we have recognized, can be recharacterized as one “arising under” federal law if…
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Both Adverse Inference and Tort Claim of Spoliation Available for Same Act in New Jersey — Duplicative Recovery Barred

From Tartaglia v. UBS PaineWebber Inc., 2009 N.J. LEXIS 1797 (Dec. 16, 2008): The matter now before us well illustrates the apparent confusion that has resulted from our discussion in Rosenblit [v. Zimmerman, 166 N.J. 391 (2001)] about the relationship between the time when an act of spoliation is discovered and the appropr ...
From Tartaglia v. UBS PaineWebber Inc., 2009 N.J. LEXIS 1797 (Dec. 16, 2008): The matter now before us well illustrates the apparent confusion that has resulted from our discussion in Rosenblit [v. Zimmerman, 166 N.J. 391 (2001)] about the relationship…
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Email Admissibility — Emails Produced in Discovery Are Sufficiently Authenticated by Fact of Production when Offered by Adverse Party But Not by Producing Party

Two cases: Case No. 1. Eastview Healthcare, LLC v. Synertx, Inc., 2009 Ga. App. LEXIS 225 (Ga. App. Mar. 3, 2009) (a litigation involving multiple related cases): The facilities [i.e., the defendants in this case] claim that the court erred in sustaining [plaintiff] Synertx's objections to evidence attached to their res ...
Two cases: Case No. 1. Eastview Healthcare, LLC v. Synertx, Inc., 2009 Ga. App. LEXIS 225 (Ga. App. Mar. 3, 2009) (a litigation involving multiple related cases): The facilities [i.e., the defendants in this case] claim that the court erred…
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Amicus Curiae — New Arguments and Issues of First Impression Raised by Amici Rather Than Parties Disregarded

From Solis v. Summit Contractors, Inc., 2009 U.S. App. LEXIS 3755 (8th Cir. Feb. 26, 2009): The amici on behalf of Summit contend that the Secretary could not lawfully apply the multi-employer worksite policy without first adopting it through the informal rulemaking process of the Administrative Procedure Act. See 5 U.S.C. § 553. ...
From Solis v. Summit Contractors, Inc., 2009 U.S. App. LEXIS 3755 (8th Cir. Feb. 26, 2009): The amici on behalf of Summit contend that the Secretary could not lawfully apply the multi-employer worksite policy without first adopting it through the…
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Sanctions — Offender’s Ability to Pay Irrelevant under 18 U.S.C. § 1927, Unlike Rule 11

From Shales v. General Chauffeurs, Sales Drivers & Helpers Local Union No. 330, 2009 U.S. App. LEXIS 4237 (7th Cir. Feb. 27, 2009): Banks's principal argument is that Rule 11 is not a pure fee-shifting statute, so ability to pay should be taken into account. This is true as far as it goes. "A sanction imposed under this rule must be lim ...
From Shales v. General Chauffeurs, Sales Drivers & Helpers Local Union No. 330, 2009 U.S. App. LEXIS 4237 (7th Cir. Feb. 27, 2009): Banks’s principal argument is that Rule 11 is not a pure fee-shifting statute, so ability to pay…
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Court Filing Fees and Contingent Future Losses ≠ RICO Injury

From Izenberg v. ETS Servs., 589 F. Supp. 2d 1193 (C.D. Cal. 2008): Plaintiffs must … plead a concrete financial loss. See Forsyth, 114 F.3d at 1481. Plaintiffs allege that they have "been damaged in having to hire attorneys before bringing this action and [in] bring[ing] this action . . . and will have to incur attorneys['] f ...
From Izenberg v. ETS Servs., 589 F. Supp. 2d 1193 (C.D. Cal. 2008): Plaintiffs must … plead a concrete financial loss. See Forsyth, 114 F.3d at 1481. Plaintiffs allege that they have “been damaged in having to hire attorneys before…
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Creation of a False Document, as Opposed to Destruction or Alteration of and Existing Document, Does Not State a Tort Claim of Spoliation in Ohio

From Williams v. Continental Express Co., 2008 Ohio 5312, 2008 Ohio App. LEXIS 4464 (Ohio App. Oct. 14, 2008): [T]he Williams argue that the trial court erred by determining that a spoliation claim requires an allegation of destruction or alteration of an already existing document. The Williams argue that the creation of a false document ...
From Williams v. Continental Express Co., 2008 Ohio 5312, 2008 Ohio App. LEXIS 4464 (Ohio App. Oct. 14, 2008): [T]he Williams argue that the trial court erred by determining that a spoliation claim requires an allegation of destruction or alteration…
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Sanctions — Premature Service of Discovery Requests Does Not Violate Rule 26(g) or 37(b)(2)

Federal Rule of Civil Procedure Rule 26(g) provides: (1) Signature Required; Effect of Signature. Every disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney's own name - or by the party personally, if unrepresented . . . . By signi ...
Federal Rule of Civil Procedure Rule 26(g) provides: (1) Signature Required; Effect of Signature. Every disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the…
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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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