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

Expert Testimony Should be Assessed in Light of Potentially Prejudicial Effect — 702 & 403

From Gell v. Town of Aulander, 2009 U.S. Dist. LEXIS 4553 (E.D.N.C. Jan. 22, 2009): The court must balance its broad discretion and flexibility when determining the admissibility of expert testimony with the concerns of Rule 403 to ensure that the probative value of the proffered testimony is not "substantially outweighed by the danger of ...
From Gell v. Town of Aulander, 2009 U.S. Dist. LEXIS 4553 (E.D.N.C. Jan. 22, 2009): The court must balance its broad discretion and flexibility when determining the admissibility of expert testimony with the concerns of Rule 403 to ensure that…
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Summary Judgment Premature Before Daubert Issues Resolved

From Buzzerd v Flagship Carwash of Port St. Lucie, Inc., 2009 U.S. Dist. LEXIS 4398 (M.D. Pa. Jan. 16, 2009): With respect to this argument, the court finds that the defendants' motion for summary judgment is premature and should be dismissed without prejudice. While a court is not required to hold a hearing on expert admissibility, a m ...
From Buzzerd v Flagship Carwash of Port St. Lucie, Inc., 2009 U.S. Dist. LEXIS 4398 (M.D. Pa. Jan. 16, 2009): With respect to this argument, the court finds that the defendants’ motion for summary judgment is premature and should be…
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Outside Accountant’s Communications with Corporate Counsel Privileged Where He Acted As “Functional Equivalent” of Employee

From Roda Drilling Co. v. Siegal, 2009 U.S. Dist. LEXIS 4559 (N.D. Okla. Jan. 22, 2009): The documents submitted consist of a variety of e-mail communications and attachments in which accountant Philip Holthouse is the author or a recipient and most of which also include attorneys. Plaintiffs claim either attorney-client privilege or wor ...
From Roda Drilling Co. v. Siegal, 2009 U.S. Dist. LEXIS 4559 (N.D. Okla. Jan. 22, 2009): The documents submitted consist of a variety of e-mail communications and attachments in which accountant Philip Holthouse is the author or a recipient and…
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RICO — Mere Off-Label Promotion of Drug Not Actionable; False Statements in Ads Are

The plaintiffs in In re: Epogen & Aranesp Off-Label Mktg. & Sales Practices Litig., 2008 U.S. Dist. LEXIS 105233 (C.D. Cal. Dec. 17, 2008) alleged that the defendants promoted a drug for off-label use through mail and wire fraud and thus in violation of RICO: Defendants argue that each of Plaintiffs' causes of action constitutes an imperm ...
The plaintiffs in In re: Epogen & Aranesp Off-Label Mktg. & Sales Practices Litig., 2008 U.S. Dist. LEXIS 105233 (C.D. Cal. Dec. 17, 2008) alleged that the defendants promoted a drug for off-label use through mail and wire fraud and…
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Standards for Certifying Interlocutory Appeal under § 1292(b) — Implications of Need to Study Record or Assess Sufficiency of Pleadings

From Santiago v. Pinello, 2009 U.S. Dist. LEXIS 3179 (E.D.N.Y. Jan. 16, 2009): A district court may certify an interlocutory appeal under three conditions: (1) where the order appealed from "involves a controlling question of law" (2) "as to which there is substantial ground for difference of opinion" and (3) where "an immediate appeal fr ...
From Santiago v. Pinello, 2009 U.S. Dist. LEXIS 3179 (E.D.N.Y. Jan. 16, 2009): A district court may certify an interlocutory appeal under three conditions: (1) where the order appealed from “involves a controlling question of law” (2) “as to which…
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Rule 11 — Improper Purpose — Filing Contract Claim to Collect Balance Due Not Improper Even If Plaintiff Lacks License That Is a Prerequisite to Suit

From Persis Nova Constr., Inc. v. Edwards, 2009 N.C. App. LEXIS 61 (N.C. App. Jan. 20, 2009): "An improper purpose is 'any purpose other than one to vindicate rights . . . or to put claims of right to a proper test.'" Mack v. Moore, 107 N.C. App. 87, 93, 418 S.E.2d 685, 689 (1992) (quoting Gregory P. Joseph, Sanctions: The Fe ...
From Persis Nova Constr., Inc. v. Edwards, 2009 N.C. App. LEXIS 61 (N.C. App. Jan. 20, 2009): “An improper purpose is ‘any purpose other than one to vindicate rights . . . or to put claims of right to a…
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Spoliation — Bad Faith Not Required in First Circuit

From Velez v. Marriott PR Mgmt., Inc., 2008 U.S. Dist. LEXIS 103484 (D.P.R. Dec. 22, 2008): Applicable caselaw in the First Circuit has clearly established that "bad faith or comparable bad motive" is not required for the court to exclude evidence in situations involving spoliation. Trull v. Volkswagen of America, Inc., 187 F. ...
From Velez v. Marriott PR Mgmt., Inc., 2008 U.S. Dist. LEXIS 103484 (D.P.R. Dec. 22, 2008): Applicable caselaw in the First Circuit has clearly established that “bad faith or comparable bad motive” is not required for the court to exclude…
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Corporate Attorney-Client Privilege — Sale of Business (Asset Sale) — No Waiver By Leaving Privileged Date on Company Computer at Time of Sale

Orbit One Commc’ns, Inc. v. Ronsen, 2008 U.S. Dist. LEXIS 90981 (S.D.N.Y. Oct. 31, 2008): Numerex argues that Old Orbit One waived its right to assert privilege with respect to any documents remaining on its computers after August 1, 2008 because title transferred to Numerex at that time. To support its position, Numerex relies primari ...
Orbit One Commc’ns, Inc. v. Ronsen, 2008 U.S. Dist. LEXIS 90981 (S.D.N.Y. Oct. 31, 2008): Numerex argues that Old Orbit One waived its right to assert privilege with respect to any documents remaining on its computers after August 1, 2008…
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After 30 Day Removal Period Has Expired, Notice of Removal May Not be Amended to Assert New Ground for Federal Jurisdiction

From Geismann v. Aestheticare, LLC, 2008 U.S. Dist. LEXIS 106545 (D. Kan. April 9, 2008): ***28 U.S.C. § 1446(a) requires defendant to effect removal by filing a notice of removal in the federal court. Subsection (b) of that statute mandates that defendant file the notice of removal within 30 days after receiving notice of the removable ...
From Geismann v. Aestheticare, LLC, 2008 U.S. Dist. LEXIS 106545 (D. Kan. April 9, 2008): ***28 U.S.C. § 1446(a) requires defendant to effect removal by filing a notice of removal in the federal court. Subsection (b) of that statute mandates…
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Inherent Power Sanctions for Filing Bankruptcy Petition to Delay Civil Litigation

From Ng v. Office of U.S. Trustee, 2009 U.S. App. LEXIS 798 (9th Cir. Jan. 14, 2009): The bankruptcy court's determination that Ng acted in bad faith by filing the underlying bankruptcy petition for the sole purpose of obstructing a related civil case was not clear error, and the bankruptcy court therefore did not abuse its discretion in ...
From Ng v. Office of U.S. Trustee, 2009 U.S. App. LEXIS 798 (9th Cir. Jan. 14, 2009): The bankruptcy court’s determination that Ng acted in bad faith by filing the underlying bankruptcy petition for the sole purpose of obstructing a…
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Recent Posts

Practice of Seeking Leave to Amend after The Case Is Dismissed Is Discouraged

RICO: Release Executed After Alleged RICO Violations Extinguishes RICO Claim — Eighth Circuit Declines to Address Enforceability of A Release “That Is An Integral Part of An Alleged RICO Scheme Or That Immunizes Future RICO Conduct

Pleading — “Civil pleadings are supposed to mark the boundaries for discovery; discovery is not supposed to substitute for definite pleading” (Good Quote) — Shotgun Pleadings (11th Circuit):  Four Categories/Types

Rule 37(c)(1) Exclusion of Untimely Expert Report: Failure to Argue Harmlessness Essentially Waives Issue

Rule 37(b) Sanctions — Exclusion of Supplemental Expert Report for Advancing New Opinions — Third Circuit Exclusion Factors — “Importance of Excluded Evidence:” If, As Proponent Argues, There Is Nothing New, Then Exclusion Doesn’t Harm Proponent; If There Is, It Harms Opponent

RICO Pleading: Generic Allegations of Fraud (Failing Even to Set Forth Any False Representation) And Extortion (Failing to Describe Actual Threats) Too Conclusory to State a Claim

RICO Standing: Antitrust’s Indirect Purchaser Rule Applies in RICO Cases, Barring Claims by Indirect Purchasers Two Or More Steps Removed From The Violator In A Distribution Chain (Here, Truck Purchasers/Lessees Suing Manufacturer), Though Court Considers Bar “Unsupported by Sensible Principles”

RICO Pleading: Statutory Directive That RICO Be Liberally Construed Does Not Extend to More Liberal Pleading Requirements

Inherent Power and FRAP 38 Sanctions — Inherent Power Sanctions (Here, A Deterrence Payment of $25,000 to the Court — Goodyear Issue Not Addressed) May Be Imposed in Addition to Statutory Attorney’s Fees under 35 U.S.C. § 285 (Exceptional Patent Case) — § 285 Does Not Preclude A Separate Award of Sanctions Or Fees under Another Authority — Recidivism (25 Prior Lawsuits with Same Perceived Venue Deficiency) A Factor — Fact That Rule 11 Sanctions Were Unavailable Due to Dismissal of Lawsuit Opened the Door to Inherent Power Sanctions Under Chambers — FRAP 38 Sanctions Denied Because Issue Previously Unaddressed in Circuit — A Meritless Appeal Is By No Means Necessarily A Frivolous One (Good Quote)

FRAP 38 Sanctions Imposed Due to the “Striking Legal Emptiness” of Brief/Appeal, “A Legal Nothingburger” — Bad Faith Not Required: An Appeal “May Also Be Frivolous If It Is Filed Out Of Sheer Obstinacy” (Good Quotes)

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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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