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 of Evidence Inapplicable to Discovery Motion

From Arista Records LLC v. Does 1-27, 2008 U.S. Dist. LEXIS 89681 (D. Me. Oct. 29, 2008): Both a motion for leave to take a deposition and a motion to quash would typically be treated as addressing a discovery dispute subject to Local Rule 7(b). Commonly, the parties' memoranda supply the factual background for the dispute and the Court ...
From Arista Records LLC v. Does 1-27, 2008 U.S. Dist. LEXIS 89681 (D. Me. Oct. 29, 2008): Both a motion for leave to take a deposition and a motion to quash would typically be treated as addressing a discovery dispute…
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Securities — § 17(a)(2)’s “By Means Of ” Is Broader Than 10b-5’s “Making” — Defendant Need Not Be Speaker

From SEC v. Tambone, 2008 U.S. App. LEXIS 24457 (1st Cir. Dec. 3, 2008) (2-1 decision): [Pleading Standards for SEC in Enforcement Action.] Here ... we are evaluating a securities complaint filed by the SEC, not a private actor. Therefore, on its face, the requirements of the PSLRA do not apply. Additionally, the rationales we ...
From SEC v. Tambone, 2008 U.S. App. LEXIS 24457 (1st Cir. Dec. 3, 2008) (2-1 decision): [Pleading Standards for SEC in Enforcement Action.] Here … we are evaluating a securities complaint filed by the SEC, not a private actor. Therefore,…
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Statements in Superseded Pleadings: Evidentiary vs. Judicial Admissions

From In re Initial Public Offering Secs. Litig., 544 F.Supp.2d 277 (S.D.N.Y. 2008): Defendants argue that plaintiffs should be bound by their earlier pleadings. However, statements in superseded pleadings are not conclusive admissions (though they are still admissions for evidentiary purposes). See United States v. McKeon, 738 F. ...
From In re Initial Public Offering Secs. Litig., 544 F.Supp.2d 277 (S.D.N.Y. 2008): Defendants argue that plaintiffs should be bound by their earlier pleadings. However, statements in superseded pleadings are not conclusive admissions (though they are still admissions for evidentiary…
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Arbitration — Judgment May Be Entered Confirming Award under FAA Even Though Neither Arbitration Clause Nor Governing Rules Explicitly So Provide

Section 9 of the Federal Arbitration Act authorizes a judgment to be entered on an arbitration award "[i]f the parties . . . have agreed that a judgment" may be so entered. The arbitration clause in Qorvis Commc’ns v. Wilson, 2008 U.S. App. LEXIS 24376 (4th Cir. Dec. 3, 2008), did not so provide. Nor did it adopt the rules of a governing orga ...
Section 9 of the Federal Arbitration Act authorizes a judgment to be entered on an arbitration award "[i]f the parties . . . have agreed that a judgment" may be so entered. The arbitration clause in Qorvis Commc’ns v. Wilson,…
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Electronic Discovery — Everything You Could Possibly Need to Know About Metadata

From Aguilar v. Immigration & Customs Enforcement Div., 2008 U.S. Dist. LEXIS 97018 (S.D.N.Y. Nov. 20, 2008) (Maas, M.J.): A. Metadata and Discovery "As a general rule of thumb, the more interactive the application, the more important the metadata is to understanding the application's output." Williams v. Spri ...
From Aguilar v. Immigration & Customs Enforcement Div., 2008 U.S. Dist. LEXIS 97018 (S.D.N.Y. Nov. 20, 2008) (Maas, M.J.): A. Metadata and Discovery “As a general rule of thumb, the more interactive the application, the more important the metadata is…
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A Gap in Federal Rule of Evidence 502 (Waiver of Privilege and Work Product)

There is a gap in the scope of Federal Rule of Evidence 502 (Attorney -Client Privilege and Work Product; Limitations on Waiver), the excellent new rule that was enacted into law on September 19, 2008. The Rule addresses disclosures “made in a federal proceeding or to a federal office” (Rule 502(a), (b)) and disclosures “made in a state proceeding” ...
There is a gap in the scope of Federal Rule of Evidence 502 (Attorney -Client Privilege and Work Product; Limitations on Waiver), the excellent new rule that was enacted into law on September 19, 2008. The Rule addresses disclosures “made…
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Does Service of Complaint by Mail Extend 30-Day Removal Period by 3 Days? Caselaw Split

From Knight v. J.I.T. Packaging, Inc., 2008 U.S. Dist. LEXIS 96927 (N.D. Ohio Nov. 24, 2008): [T]he crux of the issue ... turns upon whether Federal Rule of Civil Procedure 6(d) applies to the removal procedure. Although the courts that have considered the issue are divided, the majority have determined that Rule 6(d) does not extend the ...
From Knight v. J.I.T. Packaging, Inc., 2008 U.S. Dist. LEXIS 96927 (N.D. Ohio Nov. 24, 2008): [T]he crux of the issue … turns upon whether Federal Rule of Civil Procedure 6(d) applies to the removal procedure. Although the courts that…
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Inquiry Notice — Statute of Limitations — Documents That May Be Considered on a 12(b)(6) Motion

Although the Second Circuit did not find the statute of limitations defense viable in Staehr v. Hartford Fin. Servs., 2008 U.S. App. LEXIS 23551 (2d Cir. Nov. 16, 2008), it identified a series of documents that could properly be considered on a 12(b)(6) motion without converting the motion to one for summary judgment. The permissible documents include compla ...
Although the Second Circuit did not find the statute of limitations defense viable in Staehr v. Hartford Fin. Servs., 2008 U.S. App. LEXIS 23551 (2d Cir. Nov. 16, 2008), it identified a series of documents that could properly be considered…
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Honest Services Mail Fraud Does Not Require Proof that Conduct Violated an Applicable State Law — Circuit Split

From United States v. Weyhrauch, 2008 U.S. App. LEXIS 24248 (9th Cir. Nov. 26, 2008): This … interlocutory appeal … presents a matter of first impression in this circuit — whether a federal honest services mail fraud prosecution under 18 U.S.C. §§ 1341 and 1346 requires proof that the conduct at issue also violated an applicable s ...
From United States v. Weyhrauch, 2008 U.S. App. LEXIS 24248 (9th Cir. Nov. 26, 2008): This … interlocutory appeal … presents a matter of first impression in this circuit — whether a federal honest services mail fraud prosecution under 18…
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European-Style Digital Options Are Likely Securities, Precluding Civil RICO Claim

From Affco Invs., LLC v. KPMG, LLP, 2008 U.S. Dist. LEXIS 94396 (S.D. Tex. Nov. 20, 2008), a civil RICO claim (among others) against a law firm (among others) in connection with a tax shelter gone awry: This case involves a complicated scheme whereby taxpayers with substantial income or capital gains could claim a purportedly legal tax lo ...
From Affco Invs., LLC v. KPMG, LLP, 2008 U.S. Dist. LEXIS 94396 (S.D. Tex. Nov. 20, 2008), a civil RICO claim (among others) against a law firm (among others) in connection with a tax shelter gone awry: This case involves…
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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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