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

Proposed F.R.Civ.P. 56(c) and Mandatory Statements of Undisputed Fact

Download associated files: PRACTITIONERS' COMMENT ON RULE 56(c).pdf, N D California Comment. December 11, 2008.pdf  History teaches that, once the Advisory Committee on the Federal Ru ...
Download associated files: PRACTITIONERS’ COMMENT ON RULE 56(c).pdf, N D California Comment. December 11, 2008.pdf  History teaches that, once the Advisory Committee on the Federal Rules of Civil Procedure puts a proposed amendment out for public comment, there…
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Duty to Mitigate Survives Entry of Default Judgment

From 16 Cobalt LLC v. Harrison Career Institute, 2008 U.S. Dist. LEXIS 98866 (Dec. 8, 2008): Both parties agree that Plaintiff has a duty to mitigate damages.... Plaintiff, however, contends that the duty to mitigate is an affirmative defense and that Defendant's failure to file an answer and the consequent default judgment entered agains ...
From 16 Cobalt LLC v. Harrison Career Institute, 2008 U.S. Dist. LEXIS 98866 (Dec. 8, 2008): Both parties agree that Plaintiff has a duty to mitigate damages…. Plaintiff, however, contends that the duty to mitigate is an affirmative defense and…
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Issuer Owes No Contractual Duty to Noteholders to File Timely Reports with SEC — Caselaw Split

In the midst of an options-backdating investigation, UnitedHealth Group (UHG) — the issuer of $850 million of notes — failed to timely file certain reports with the SEC. The Indenture Trustee contended that the failure to file the SEC reports breached a duty under the indenture to the noteholders, and hedge funds owning more than 25% of the notes issued a notic ...
In the midst of an options-backdating investigation, UnitedHealth Group (UHG) — the issuer of $850 million of notes — failed to timely file certain reports with the SEC. The Indenture Trustee contended that the failure to file the SEC reports…
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Statement of Employee Not Admission of Employer within Rule 801

The plaintiff in McAdams v. United States, 2008 U.S. App. LEXIS 24631 (3d Cir. Oct 28, 2008), slipped on the floor of a VA Medical Center (VMAC) and attempted unsuccessfully to introduce the testimony of an x-ray technician employed by the VMAC that the floor was as slippery as a skating rink: McAdams argues that the statement of the VAM ...
The plaintiff in McAdams v. United States, 2008 U.S. App. LEXIS 24631 (3d Cir. Oct 28, 2008), slipped on the floor of a VA Medical Center (VMAC) and attempted unsuccessfully to introduce the testimony of an x-ray technician employed by…
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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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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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