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 Sanctions — State vs. Federal Law

From Wilson v. Wal-Mart Stores, Inc., 2008 U.S. Dist. LEXIS 88429 (M.D.Fla Oct. 17, 2008), an employment action predicated on both federal and state law claims: While federal law governs the imposition of sanctions for spoliation of evidence, the Court may look to state law for guidance to the extent that it is consistent with federal law ...
From Wilson v. Wal-Mart Stores, Inc., 2008 U.S. Dist. LEXIS 88429 (M.D.Fla Oct. 17, 2008), an employment action predicated on both federal and state law claims: While federal law governs the imposition of sanctions for spoliation of evidence, the Court…
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Fraudulent Joinder — Standards — Fifth Circuit

From Gipson v. Wal-Mart Stores, Inc., 2008 U.S. Dist. LEXIS 88928 (S.D. Tex. Nov. 3, 2008): [Footnote] 2 "Fraudulent joinder" does not require a showing that the plaintiff had an intent to deceive or knew that the facts alleged were false. [Citation omitted; end of footnote.] The burden of persuasion on those who claim fraudulen ...
From Gipson v. Wal-Mart Stores, Inc., 2008 U.S. Dist. LEXIS 88928 (S.D. Tex. Nov. 3, 2008): [Footnote] 2 “Fraudulent joinder” does not require a showing that the plaintiff had an intent to deceive or knew that the facts alleged were…
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Reliance on Deposition Summaries Prepared by Counsel Renders Expert Opinion Unreliable

From Sommerfield v. City of Chicago, 2008 U.S. Dist. LEXIS 88760 (N.D. Ill. Nov. 3, 2008): Acceptance of the notion that an expert can reasonably base his opinion on summaries of deposition testimony prepared by a party's lawyer would effectively eliminate Daubert 's insistence that an expert's opinion be grounded on reliable infor ...
From Sommerfield v. City of Chicago, 2008 U.S. Dist. LEXIS 88760 (N.D. Ill. Nov. 3, 2008): Acceptance of the notion that an expert can reasonably base his opinion on summaries of deposition testimony prepared by a party’s lawyer would effectively…
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Privilege & Work Product — Choice of Law in Diversity Action — Privilege Governed by State Law, Work Product by Federal Law

From Randleman v. Fidelity Nat’l Title Ins. Co., 251 F.R.D. 281 (N.D. Ohio 2008): Although questions of evidentiary privilege arising in the context of a state law claim are governed by state law, Fed. R. Evid. 501, the work product doctrine, Fed. R. Civ. P. 26(b)(3), is not an evidentiary privilege. Consequently, the scope of the wor ...
From Randleman v. Fidelity Nat’l Title Ins. Co., 251 F.R.D. 281 (N.D. Ohio 2008): Although questions of evidentiary privilege arising in the context of a state law claim are governed by state law, Fed. R. Evid. 501, the work product…
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Methodology for Computing Attorney’s Fees — Inherent Power Sanctions

From Mr. Rooter Corp. v. Mr. Plumber, Rooter & Plumbing Servs., LLC, 2008 U.S. Dist. LEXIS 85836 (D. Nev. Oct. 6, 2008): The federal court has inherent power to levy sanctions, including attorneys' fees, for "willful disobedience of a court order." Roadway Express v. Piper, 447 U.S. 752, 766 (1980).... [D]espite the court's rep ...
From Mr. Rooter Corp. v. Mr. Plumber, Rooter & Plumbing Servs., LLC, 2008 U.S. Dist. LEXIS 85836 (D. Nev. Oct. 6, 2008): The federal court has inherent power to levy sanctions, including attorneys’ fees, for “willful disobedience of a court…
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Erie — State Offer of Settlement Statute Is Substantive and Applies in Federal Court Diversity Action

From Wheatley v. Moe’s SW Grill, LLC, 2008 U.S. Dist. LEXIS 88108 (N.D. Ga. Sept. 30, 2008): ...Rule 68 and O.C.G.A. § 9-11-68 are not in "direct collision" with one another. Rule 68 is available only to a party defending against a claim, whereas O.C.G.A. § 9-11-68 is available to both plaintiffs and defendants. Moreover, Rule 68 a ...
From Wheatley v. Moe’s SW Grill, LLC, 2008 U.S. Dist. LEXIS 88108 (N.D. Ga. Sept. 30, 2008): …Rule 68 and O.C.G.A. § 9-11-68 are not in “direct collision” with one another. Rule 68 is available only to a party defending…
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Experts — Abusive Supplementation of Expert Report to Avoid Summary Judgment

From Gallagher v. Southern Source Packaging, 568 F. Supp. 2d 624 (E.D.N.C. 2008): Supplementation of an expert report permits a party to correct inadvertent errors or omissions. Supplementation, however, is not a license to amend an expert report to avoid summary judgment. See, e.g., Beller ex rel. Beller v. United States,
From Gallagher v. Southern Source Packaging, 568 F. Supp. 2d 624 (E.D.N.C. 2008): Supplementation of an expert report permits a party to correct inadvertent errors or omissions. Supplementation, however, is not a license to amend an expert report to avoid…
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RICO — Hub-and-Spoke Configuration ≠ Enterprise

In addition to finding that the “Google Network” was too diffuse to comprise a RICO enterprise, the Court in Vulcan Golf, LLC v. Google Inc., 2008 U.S. Dist. LEXIS 60608 (N.D. Ill. July 31, 2008), noted that, whatever validity a hub-and-spoke configuration may have as a form of conspiracy, it does not amount to a RICO enterprise: As . ...
In addition to finding that the “Google Network” was too diffuse to comprise a RICO enterprise, the Court in Vulcan Golf, LLC v. Google Inc., 2008 U.S. Dist. LEXIS 60608 (N.D. Ill. July 31, 2008), noted that, whatever validity a…
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Website Evidence — Self-Authentication

The case law is fairly uniform that printouts from government websites are self-authenticating under Fed.R.Evid. 902. See the article entitled Internet and Email Evidence 2008 on the Recent Articles page (http://www.josephny_live.com/articles/viewarticle.php?58). That doesn’t mean anything goes. There are still some hoops to be jumped. From Owens v. ...
The case law is fairly uniform that printouts from government websites are self-authenticating under Fed.R.Evid. 902. See the article entitled Internet and Email Evidence 2008 on the Recent Articles page (http://www.josephny_live.com/articles/viewarticle.php?58). That doesn’t mean anything goes. There are still some…
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Producing Documents in Non-Searchable TIFF Format Violates Rule 34 If Producing Party Maintains Them in Any Searchable Format

From Goodbys Creek, LLC v. Arch Ins. Co., 2008 U.S. Dist. LEXIS 79660 (M.D.Fla. Sept. 15, 2008): Neither party disputes Goodbys' failure to specify a desired format for the documents.... Because of such failure, Arch chose, of its own accord, to produce the requested documents "via TIFF images" rather than in their native format.... Pla ...
From Goodbys Creek, LLC v. Arch Ins. Co., 2008 U.S. Dist. LEXIS 79660 (M.D.Fla. Sept. 15, 2008): Neither party disputes Goodbys’ failure to specify a desired format for the documents…. Because of such failure, Arch chose, of its own accord,…
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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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