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

Rules 8(a) and 12(b)(6) — Court Not Obliged to Ferret Through Complaint in Search of Viable Claims, Even in Pro Se Action

From Sloan v. Smith, 2009 U.S. Dist. LEXIS 14346 (W.D. Va. Feb. 24, 2009): To the extent the complaint possibly could be combed to find a claim that is non-frivolous — and also not barred by res judicata, the applicable statues of limitations, or judicial or other immunity doctrines — a court is not obliged to ferret throug ...
From Sloan v. Smith, 2009 U.S. Dist. LEXIS 14346 (W.D. Va. Feb. 24, 2009): To the extent the complaint possibly could be combed to find a claim that is non-frivolous — and also not barred by res judicata, the applicable…
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Internet Evidence — Web Page from Internet Archive Properly Authenticated by Affidavit

From Masters v. UHS of Del., Inc., 2008 U.S. Dist. LEXIS 107383 (E.D. Mo. Oct.21, 2008): Plaintiff asks the Court to find that exhibit 110, a compilation of defendant's websites that had been archived by a third party, the Internet Archive, is admissible. In support of its motion, plaintiff has submitted the affidavit of Paul Hickman, an ...
From Masters v. UHS of Del., Inc., 2008 U.S. Dist. LEXIS 107383 (E.D. Mo. Oct.21, 2008): Plaintiff asks the Court to find that exhibit 110, a compilation of defendant’s websites that had been archived by a third party, the Internet…
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No Federal Jurisdiction under Grable to Hear Legal Malpractice Claim Despite Centrality of Title VII Issues

From Walker v. Dwoskin, 2009 U.S. Dist. LEXIS 10720 (W.D. Va. Feb. 12, 2009): Plaintiff filed a complaint against the Defendant on January 5, 2009 in the Circuit Court for Albemarle County, alleging that the Defendant breached his contract with the Plaintiff by failing to serve the defendant in the Title VII suits in a timely manner, and ...
From Walker v. Dwoskin, 2009 U.S. Dist. LEXIS 10720 (W.D. Va. Feb. 12, 2009): Plaintiff filed a complaint against the Defendant on January 5, 2009 in the Circuit Court for Albemarle County, alleging that the Defendant breached his contract with…
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A Nicely Balanced Spoliation Instruction

The plaintiff in Hoffman v. Baltimore Police Dept., 2009 U.S. Dist. LEXIS 6626 (D. Md. Jan. 21, 2009), claimed that he was fired due to his race (Caucasian). Notes of an interview between the plaintiff and one of his supervisors (Anderson) were not produced: It is undisputed that after Anderson met with Plaintiff on the morning of Novem ...
The plaintiff in Hoffman v. Baltimore Police Dept., 2009 U.S. Dist. LEXIS 6626 (D. Md. Jan. 21, 2009), claimed that he was fired due to his race (Caucasian). Notes of an interview between the plaintiff and one of his supervisors…
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Expert Testimony Nightmares Are Made Of

The plaintiff in Johnson v. SJP Mgmt. LLC, 2009 U.S. Dist. LEXIS 11272 (E.D. Pa. Feb. 12, 2009), sued for injury due to a defective elevator that allegedly closed on her arm. The defendant moved to strike the testimony of her expert, Schloss, on Daubert grounds. As recounted by the Court, “Schloss could not explain the undisputed fact that no repai ...
The plaintiff in Johnson v. SJP Mgmt. LLC, 2009 U.S. Dist. LEXIS 11272 (E.D. Pa. Feb. 12, 2009), sued for injury due to a defective elevator that allegedly closed on her arm. The defendant moved to strike the testimony of…
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Default Judgments — Factors on Motion to Set Aside

From Chaaban v. Criscito, 2009 U.S. Dist. LEXIS 8323 (D.N.J. Feb. 3, 2009): Defaults are disfavored, and where a party has moved to set aside a default, doubtful cases should be resolved in favor of the party moving to set aside a default entry "so that cases may be decided on their merits." See United States v. $ 55,518.05 in U.S. Cu ...
From Chaaban v. Criscito, 2009 U.S. Dist. LEXIS 8323 (D.N.J. Feb. 3, 2009): Defaults are disfavored, and where a party has moved to set aside a default, doubtful cases should be resolved in favor of the party moving to set…
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Sanctions — Appellate Review of Joint-and-Several Liability Determination — Sixth Circuit Ambiguity on § 1927 Standards

From Garner v Cuyahoga County Juvenile Court, 2009 U.S. App. LEXIS 1289 (6th Cir. Jan. 22, 2009): [De Novo Review of Joint and Several Liability Determination.] A district courtt's determination that plaintiffs are liable to pay attorney fees for bringing frivolous lawsuits, and the court's calculation of the total amoun ...
From Garner v Cuyahoga County Juvenile Court, 2009 U.S. App. LEXIS 1289 (6th Cir. Jan. 22, 2009): [De Novo Review of Joint and Several Liability Determination.] A district courtt’s determination that plaintiffs are liable to pay attorney fees for bringing…
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Searchable .TIF Files are “Reasonably Usable” Alternative to Native Format within Rule 34 — Parties’ Agreement to Produce Native Format Nonetheless Enforced

From In re ClassicStar Mare Lease Litig., 2009 U.S. Dist. LEXIS 9750 (E.D. Ky. Feb. 2, 2009): [T]his Court entered Orders requiring an extensive production of financial information from GeoStar and its many subsidiaries…. The Orders did not specify the format for electronic production of these documents. On September 11, 2008, GeoStar ...
From In re ClassicStar Mare Lease Litig., 2009 U.S. Dist. LEXIS 9750 (E.D. Ky. Feb. 2, 2009): [T]his Court entered Orders requiring an extensive production of financial information from GeoStar and its many subsidiaries…. The Orders did not specify the…
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International Arbitration — Abstention Based on Comity — Appellate Jurisdiction under the FAA

The parties in Answers in Genesis of Kentucky, Inc. v. Creation Ministries International, Ltd., 2009 U.S. App. LEXIS 2743 (6th Cir. Feb. 13, 2009), were, respectively, U.S. and an Australian entities advocating creationism. Formerly affiliated, they entered into two agreements, a Memorandum of Understanding that required “Christian arbitration” of any di ...
The parties in Answers in Genesis of Kentucky, Inc. v. Creation Ministries International, Ltd., 2009 U.S. App. LEXIS 2743 (6th Cir. Feb. 13, 2009), were, respectively, U.S. and an Australian entities advocating creationism. Formerly affiliated, they entered into two agreements,…
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RICO — A Group of Persons Conspiring to Commit a Fraud Does Not Necessarily Comprise an Enterprise

From Millette v. DEK Techs., Inc., 2008 U.S. Dist. LEXIS 95933 (S.D. Fla. Nov. 25, 2008): A RICO enterprise can not be a group simply conspiring to commit a fraud, that is not enough to trigger the Act. In re Managed Care Litigation, 298 F. Supp. 2d at 1274. The parties must be "organized in a fashion that would enable the ...
From Millette v. DEK Techs., Inc., 2008 U.S. Dist. LEXIS 95933 (S.D. Fla. Nov. 25, 2008): A RICO enterprise can not be a group simply conspiring to commit a fraud, that is not enough to trigger the Act. In re…
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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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