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

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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Email Authenticated by Distinctive Characteristics, Including “@”

From Wireless Networks, Inc., 2008 U.S. Dist. LEXIS 95696 (N.D. Cal. Nov. 17, 2008): Plaintiff objects to the admissibility of e-mails contained in the Declaration of Jessica La Londe at exhibit E as lacking authenticity. First, Plaintiff does not dispute the authenticity of any e-mails there were sent by Plaintiff. Second, the remain ...
From Wireless Networks, Inc., 2008 U.S. Dist. LEXIS 95696 (N.D. Cal. Nov. 17, 2008): Plaintiff objects to the admissibility of e-mails contained in the Declaration of Jessica La Londe at exhibit E as lacking authenticity. First, Plaintiff does not dispute…
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January 2009 Meeting of the Standing Committee on Rules of Practice and Procedure

On Tuesday, January 13, 2009, I moderated a panel discussion at the meeting of the Standing Committee on Rules of Practice and Procedure of the U.S. Judicial Conference. The topic was Problems in Civil Litigation and Possible Reforms. The materials included my article Federal Litigation: Where Did It Go Off Track? (available on the Recent Articles page -- ...
On Tuesday, January 13, 2009, I moderated a panel discussion at the meeting of the Standing Committee on Rules of Practice and Procedure of the U.S. Judicial Conference. The topic was Problems in Civil Litigation and Possible Reforms. The materials…
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Corporate Dual Citizenship Prevents Minimal Diversity under CAFA

From From Johnson v. Advance America, 2008 U.S. App. LEXIS 25050 (4th Cir. Dec. 12, 2008): Advance America contends that the minimal diversity requirement is satisfied in this case. It argues first that because Advance America is incorporated under the laws of Delaware and is therefore a Delaware citizen, its citizenship is different fr ...
From From Johnson v. Advance America, 2008 U.S. App. LEXIS 25050 (4th Cir. Dec. 12, 2008): Advance America contends that the minimal diversity requirement is satisfied in this case. It argues first that because Advance America is incorporated under the…
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RICO — Concrete Injury — Intracorporate Conspiracy Doctrine

The RICO complaint was dismissed on multiple grounds in District 1199P Health & Welfare Plan v. Janssen, LP, 2008 U.S. Dist. LEXIS 10352 (D.N.J. Dec. 23, 2008). The basic claim was that the defendants deceptively marketed a more expensive drug (Risperdal) for off-label uses that could have been more cheaply, and equally effectively, accomplished by less expe ...
The RICO complaint was dismissed on multiple grounds in District 1199P Health & Welfare Plan v. Janssen, LP, 2008 U.S. Dist. LEXIS 10352 (D.N.J. Dec. 23, 2008). The basic claim was that the defendants deceptively marketed a more expensive drug…
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Recalculation of Damages after Plaintiffs Cannot Explain Charts at Their Depositions Insufficient to Warrant § 1927 or Inherent Power Sanctions

From Gortat v. Capala Bros., Inc., 2008 U.S. Dist. LEXIS 102500 (E.D.N.Y. Dec. 18, 2008): Although it is somewhat disconcerting that plaintiffs' damages were recalculated after plaintiffs were deposed, this in itself hardly constitutes misconduct warranting sanctions. In wage and hour violation cases, a plaintiff's calculation of the dam ...
From Gortat v. Capala Bros., Inc., 2008 U.S. Dist. LEXIS 102500 (E.D.N.Y. Dec. 18, 2008): Although it is somewhat disconcerting that plaintiffs’ damages were recalculated after plaintiffs were deposed, this in itself hardly constitutes misconduct warranting sanctions. In wage and…
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Experts: Failure to Act upon Receipt of Inadequate 26(a)(2) Disclosure = Unacceptable Gamesmanship

From Foreman v. Am. Road Lines, Inc., 2008 U.S. Dist. LEXIS 102278 (S.D. Ala. Dec. 16, 2008): Unquestionably, it was incumbent on defendants to comply fully and timely with the disclosure requirements of Rule 26(a)(2), including specifically providing plaintiffs with a list of other cases in which Dr. Davis has testified in the last four ...
From Foreman v. Am. Road Lines, Inc., 2008 U.S. Dist. LEXIS 102278 (S.D. Ala. Dec. 16, 2008): Unquestionably, it was incumbent on defendants to comply fully and timely with the disclosure requirements of Rule 26(a)(2), including specifically providing plaintiffs with…
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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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