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

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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Arbitration — Right to Appeal from Confirmation Subsumes Right to Appeal from Refusal to Modify Award — “Manifest Disregard” Is Not a Ground to Modify

From Grain v. Trinity Health, 551 F.3d 374 (6th Cir. Dec. 24, 2008): [Right to Appeal Unmodified Award.] Grain and Barnes filed this action under the Federal Arbitration Act, seeking to confirm the arbitrators' decision in part (by upholding their liability ruling) and seeking to modify the arbitrators' decision in part (by incre ...
From Grain v. Trinity Health, 551 F.3d 374 (6th Cir. Dec. 24, 2008): [Right to Appeal Unmodified Award.] Grain and Barnes filed this action under the Federal Arbitration Act, seeking to confirm the arbitrators’ decision in part (by upholding their…
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Privilege — Waiver — School Board President Lacks Authority to Waive Privilege of Board

From Sampson v. School Dist. of Lancaster, 2008 U.S. Dist. LEXIS 91421 (E.D. Pa. Nov. 5, 2008): Defendants rely on the same statute [24 P.S. § 4-427 (2008)] and contend that [School Board President] Dixon's distribution of the [privileged] Weldon Memorandum to Plaintiff was an ultra vires act. Defendants contend that Dixon had no author ...
From Sampson v. School Dist. of Lancaster, 2008 U.S. Dist. LEXIS 91421 (E.D. Pa. Nov. 5, 2008): Defendants rely on the same statute [24 P.S. § 4-427 (2008)] and contend that [School Board President] Dixon’s distribution of the [privileged] Weldon…
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“Marginally Coherent” Pro Se Filings Not Sanctioned

From Marvel v. Cooley, 2009 U.S. Dist. LEXIS 6584 (S.D. Ind. Jan. 28, 2009): In an attachment to her complaint, Marvel lists six prior related complaints that she has filed. In addition to the six prior complaints that Marvel lists, the Court notes Marvel has filed two additional related actions in the Northern District of Indiana. For v ...
From Marvel v. Cooley, 2009 U.S. Dist. LEXIS 6584 (S.D. Ind. Jan. 28, 2009): In an attachment to her complaint, Marvel lists six prior related complaints that she has filed. In addition to the six prior complaints that Marvel lists,…
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Employee’s Running Standard Outlook Cleanup Program Before Exiting Company Does Not Give Rise to Spoliation Inference; Deletion of Images from Web Surfing Not Suspicious

In Thermodyn Corp. v. 3M Co., 2008 U.S. Dist. LEXIS 106804 (N.D. Ohio Dec. 17, 2008), the plaintiff employer sued a former employee (Kaufman) for allegedly stealing trade secrets and providing them to a competitor of his former employer (3M): [Plaintiff] Thermodyn argues the [adverse] inference is appropriate because Kaufman deleted some ...
In Thermodyn Corp. v. 3M Co., 2008 U.S. Dist. LEXIS 106804 (N.D. Ohio Dec. 17, 2008), the plaintiff employer sued a former employee (Kaufman) for allegedly stealing trade secrets and providing them to a competitor of his former employer (3M):…
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Arbitration — “Manifest Disregard” Survives Hall Street — Ninth Circuit Joins Second

From Comedy Club, Inc. v. Improv West Assocs., 2009 U.S. App. LEXIS 1634 (9th Cir. Jan. 29, 2009): *** We determine that Hall Street Associates does not undermine our prior precedent, Kyocera Corp. v. Prudential-Bache T. Servs., 341 F.3d 987 (9th Cir. 2003) (en banc). As a result, in this circuit, an arbitrator's manifest disrega ...
From Comedy Club, Inc. v. Improv West Assocs., 2009 U.S. App. LEXIS 1634 (9th Cir. Jan. 29, 2009): *** We determine that Hall Street Associates does not undermine our prior precedent, Kyocera Corp. v. Prudential-Bache T. Servs., 341 F.3d 987…
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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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