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

Monies Paid under License to Stay Injunction Pending Appeal Are Recoverable upon Reversal of Injunction Even Though Payor Had Choice Not to Pay

In Broadcom Corp. v. Qualcomm Inc., 2008 U.S. Dist. LEXIS 91378 (C.D. Cal. Oct. 29, 2008), the trial court entered a preliminary injunction ordering Qualcomm to stop infringing a patent of Broadcom’s but staying the injunction pending appeal if Qualcomm royalties to Broadcom. While the case was on appeal, Qualcomm paid $11 million in royalties to Broadcom. ...
In Broadcom Corp. v. Qualcomm Inc., 2008 U.S. Dist. LEXIS 91378 (C.D. Cal. Oct. 29, 2008), the trial court entered a preliminary injunction ordering Qualcomm to stop infringing a patent of Broadcom’s but staying the injunction pending appeal if Qualcomm…
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Default Judgment — Rules Governing Inquests

The plaintiff in Banco de Chile v. Lavanchy, 2008 U.S. Dist. LEXIS 91499 (S.D.N.Y. Nov. 6, 2008) commenced this civil RICO action against a former employee alleging that, “‘unbeknownst to it,’ the defendant acted as the ‘undisclosed financial agent for former Chilean President Augusto Pinochet ("Pinochet") and used his financial relationship with [the ...
The plaintiff in Banco de Chile v. Lavanchy, 2008 U.S. Dist. LEXIS 91499 (S.D.N.Y. Nov. 6, 2008) commenced this civil RICO action against a former employee alleging that, “‘unbeknownst to it,’ the defendant acted as the ‘undisclosed financial agent for…
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Letter That Makes No Concession Received in Evidence over Rule 408 Objection (Not Endorsed “For Settlement Purposes Only”)

From Latorraca v. Centennial Techs., 2008 U.S. Dist. LEXIS 91468 (D. Mass. Oct. 9, 2008): Federal Rule of Evidence 408(a)(2) prohibits the use of "statements made in compromise negotiations regarding [a] claim" as evidence of a party's "liability for...a claim that was disputed as to validity or amount". This Rule is meant to promote the ...
From Latorraca v. Centennial Techs., 2008 U.S. Dist. LEXIS 91468 (D. Mass. Oct. 9, 2008): Federal Rule of Evidence 408(a)(2) prohibits the use of “statements made in compromise negotiations regarding [a] claim” as evidence of a party’s “liability for…a claim…
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Taking a Scalpel Rather than a Hatchet to Expert Economic Testimony

From Cummins-Allison Corp. v. SBM Co., 2008 U.S. Dist. LEXIS 88995 (E.D. Tex. Nov. 3, 2008) (Clark, J.): As a young attorney, the undersigned appeared before an older judge who dismissed all expert opinions on damages as unreliable and drastically curtailed such testimony. This approach shortens trials, but constraining expert testimony ...
From Cummins-Allison Corp. v. SBM Co., 2008 U.S. Dist. LEXIS 88995 (E.D. Tex. Nov. 3, 2008) (Clark, J.): As a young attorney, the undersigned appeared before an older judge who dismissed all expert opinions on damages as unreliable and drastically…
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Administrative Agencies, Retroactive Rulings and Extent of Judicial Deference

From NetworkIP, LLC v. FCC, 2008 U.S. App. LEXIS 23264 (D.C. Cir. Nov. 7, 2008): Though agencies are entitled to deference, they may not retroactively change the rules at will. Indeed, that "[e]lementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their con ...
From NetworkIP, LLC v. FCC, 2008 U.S. App. LEXIS 23264 (D.C. Cir. Nov. 7, 2008): Though agencies are entitled to deference, they may not retroactively change the rules at will. Indeed, that “[e]lementary considerations of fairness dictate that individuals should…
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Testimony That Is Inadmissible under Rule 26(a)(2) May Be Received on Daubert Motion

From City of Owensboro v. Kentucky Utilities Co., 2008 U.S. Dist. LEXIS 79292 (W.D. Ky. Oct. 8, 2008): [Plaintiff] OMU filed a Daubert motion to exclude the testimony of KU's damages expert, Mr. William Abington. In support of Plaintiffs' motion, OMU submitted the affidavit of Mark McClernon, OMU's expert rebuttal witness on KU's ...
From City of Owensboro v. Kentucky Utilities Co., 2008 U.S. Dist. LEXIS 79292 (W.D. Ky. Oct. 8, 2008): [Plaintiff] OMU filed a Daubert motion to exclude the testimony of KU’s damages expert, Mr. William Abington. In support of Plaintiffs’ motion,…
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Drafts of Affidavit Protected by Work Product Protection — Protection Not Waived by Filing Final

From Randleman v. Fidelity Nat’l Title Ins. Co., 251 F.R.D. 281 (N.D. Ohio 2008): The Southern District of Ohio, in Tuttle v. Tyco Electronics Installation Services, 2007 U.S. Dist. LEXIS 95527, 2007 WL 4561530, at *2 (S.D. Ohio) (Frost, J.), unambiguously stated that the work product doctrine protects information about the evol ...
From Randleman v. Fidelity Nat’l Title Ins. Co., 251 F.R.D. 281 (N.D. Ohio 2008): The Southern District of Ohio, in Tuttle v. Tyco Electronics Installation Services, 2007 U.S. Dist. LEXIS 95527, 2007 WL 4561530, at *2 (S.D. Ohio) (Frost, J.),…
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Mental-Impression Work Product Protection Afforded Attorney Notes of Interview with Witness

The plaintiffs in Mass Engineered Design, Inc. v. Ergotron, Inc., 2008 U.S. Dist. LEXIS 89151 (E.D. Tex. Oct. 31, 2008), had engaged a Canadian lawyer/U.S. patent agent named Waraksa but later became dissatisfied with his work. In this patent action, defense counsel interviewed Waraksa and sought to take his deposition. Plaintiffs’ counsel sought the inte ...
The plaintiffs in Mass Engineered Design, Inc. v. Ergotron, Inc., 2008 U.S. Dist. LEXIS 89151 (E.D. Tex. Oct. 31, 2008), had engaged a Canadian lawyer/U.S. patent agent named Waraksa but later became dissatisfied with his work. In this patent action,…
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Arbitration: “Manifest Disregard of the Law,” but Not of the Evidence, Survives Hall Street — Circuit Split

Earlier this year, the Supreme Court ruled in Hall Street Assocs. LLC v. Mattel, Inc., 128 S.Ct. 1396 (2008), that the Federal Arbitration Act “confines its expedited judicial review to the grounds listed in 9 U.S.C. §§ 10 and 11,” id. at 1408, and “manifest disregard of the law” nowhere appears in those sections. Therefore, one would think, the ma ...
Earlier this year, the Supreme Court ruled in Hall Street Assocs. LLC v. Mattel, Inc., 128 S.Ct. 1396 (2008), that the Federal Arbitration Act “confines its expedited judicial review to the grounds listed in 9 U.S.C. §§ 10 and 11,”…
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The Impact of Federal Rule of Evidence 502(d) on Protective Orders

A new article, entitled The Impact of Federal Rule of Evidence 502(d) on Protective Orders has been posted on the Recent Articles page at http://www.josephny_live.com/articles/viewarticle.php?59. The article discusses the manner in which protective orders -- specifically, provisions clawing back privileged information that has been disclosed -- should now be ...
A new article, entitled The Impact of Federal Rule of Evidence 502(d) on Protective Orders has been posted on the Recent Articles page at http://www.josephny_live.com/articles/viewarticle.php?59. The article discusses the manner in which protective orders — specifically, provisions clawing back privileged…
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Recent Posts

Inherent Power Sanctions — Dismissal for Threatening Defendant and Magistrate Judge — No First Amendment Right to Threaten Violence

RICO: Domestic Injury — Delivery of Fraudulently Non-Conforming Goods FOB Los Angeles for Shipment to China Means Injury Arose Domestically When Purchaser Took Title —Other Relevant Factors Include That The Non-Conforming Goods Were Sourced and Made in the U.S. and The Racketeering Activity (Mail/Wire Fraud) Occurred in, and Was Directed from, the United States — Irrelevant to Domestic Injury Inquiry Whether Property Is Tangible or Intangible — 7th Circuit’s “Injury-Felt” Test of Domestic Injury Rejected by Supreme Court — RICO Standing Requires Concrete Financial Loss, Not Merely Injury to Valuable Intangible Property Interest (9th Circuit)

RICO Causation: Parents of Children with Disabilities Deprived In-Person Education and Services during the Pandemic Were Not Causally Injured by Teachers’ False Assurances to Federal Authorities That IDEA-Complaint Policies Were in Place, Which Caused Funds to Issue But Not to the Benefit of the Disabled Children — Damages Too Indirect — Proper Plaintiff Is U.S. Government — Private Injunctive Relief Under RICO Uncertain in Third Circuit

Sanctions: Rule 37(b)(2) Dismissal — Sixth Circuit Factors

Inherent Power Sanctions — Extrajudicial Misconduct: Sanctions Power Extends to Conduct Intended to Sabotage Court’s Ability to Adjudicate the Case Before It, Here, By Commencing State Court Actions Seeking to Enjoin the Federal Plaintiffs from Proceeding with Their Federal Litigation — Sanctions Fee Awards: The Factors Used For Calculating A Fee Award To A Prevailing Party Do Not Govern — Under Goodyear, the Relevant Inquiry Is Whether There Is A Sufficient Causal Link Between The Sanctioned Misconduct And The Fees Awarded

RICO: Members of Association-in-Fact Enterprise Must Act with a Common Purpose—Mere Allegation That Various Defendants Agreed at Different Times to Engage in Various Fraudulent Schemes Does Not Plausibly Support the Essential Inference, That They Acted with s Sufficiently Common Purpose

RICO Causation: (1) State’s Misrepresentation to Federal Government That It Was Providing Plaintiffs with Mandated Special Education Did Not Cause Plaintiffs’ Injury Because The Failure to Provide The Education Was Not Caused by the Fraud on the Federal Government — (2) The Three Factors for Assessing RICO Causation — (3) Limits of the Second Circuit’s Decision in Alix v. McKinsey That Causation Can Be Established Where A Fraud On The Judiciary “Or Other Governmental Entity” Resulted In A Resource Going To Someone Less Deserving

Rule 41(b): Five Factors to Be Weighed in Deciding Whether Dismissal Is Appropriate (Second Circuit) — Is A Finding of Bad Faith or Fault Required if Dismissal Is Without Prejudice? — Undecided If Truly Without Prejudice But It Is Required If the Without Prejudice Dismissal Will Act as a Dismissal on the Merits (Here, Because of the Statute of Limitations) — Failure To Consider A Lesser Sanction Than Dismissal Is Generally An Abuse Of Discretion

Spoliation Sanctions/Mootness: Stipulation Resolving “All Pending Discovery Disputes,” Which Are Enumerated, Does Not Moot Subsequent Sanctions Motion for ESI Spoliation — Postjudgment Sanctions Order Is Appealable When District Court Has Finally Disposed of Both Liability and Amount

Rule 37 Default Judgment Sanction: (1) Default Judgment Appropriate Only As a Last Resort, When Less Drastic Sanctions Would Not Ensure Compliance with the Court’s Orders — (2) Default Judgment Sanction Requires Willful or Bad Faith Failure to Obey Discovery Order — (3) Fugitive Defendant’s Failure to Appear at Court-Ordered, Remote Deposition Despite Court Warning That Sanctions Could Follow Disobedience Warrants Default Judgment — (4) District Court Afforded Wide Discretion in Interpreting Its Own Orders — (5) Filing a Notice of Appeal from a Non-Appealable Order (Here, a Discovery Order) Does Not Deprive the District Court of Jurisdiction over the Case

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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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