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

Experts and Electronic Spoliation — Reliance on Internet Discussions with Other Experts Satisfies Fed.R.Evid. 703 — Reasonably Relied on by Experts in Forming Opinion

The plaintiff in Nucor Corp., v. Bell, 2008 U.S. Dist. LEXIS 86328 (D.S.C. Jan. 11, 2008), sued its former employee and his new employer for trade secret misappropriation. On the pending motion for sanctions, the plaintiff claimed that the defendants had spoliated evidence by wiping the hard drive of a laptop and disposing of a USB drive. The plaintiff mov ...
The plaintiff in Nucor Corp., v. Bell, 2008 U.S. Dist. LEXIS 86328 (D.S.C. Jan. 11, 2008), sued its former employee and his new employer for trade secret misappropriation. On the pending motion for sanctions, the plaintiff claimed that the defendants…
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Failure to Raise Sufficiency of the Evidence in 50(b) Motion Precludes Appellate Review — 50(a) Motion Insufficient — Is Rule 50(b) Motion Jurisdictional under Bowles v. Russell?

From Kelley v. City of Albuquerque, 542 F.3d 802 (10th Cir. 2008): [Unitherm.] The City contends that Ms. Kelley failed to establish a prima facie case of retaliation because the evidence is insufficient to show a causal connection between Ms. Kelley's participation in the EEOC proceedings and her termination. The City r ...
From Kelley v. City of Albuquerque, 542 F.3d 802 (10th Cir. 2008): [Unitherm.] The City contends that Ms. Kelley failed to establish a prima facie case of retaliation because the evidence is insufficient to show a causal connection between Ms.…
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International Abstention v. Colorado River Abstention — Different Outcome on Appealability

In Groeneveld Transport Efficiency v. Eisses, , 2008 U.S. App. LEXIS 22005 (6th Cir. Oct. 20, 2008) (unpublished), a dispute between an employee and employer, the employee had sued first in Ontario. The employer then sued here. The District Court abstained in deference to the Canadian action, under the doctrine of international abstention, defined in the S ...
In Groeneveld Transport Efficiency v. Eisses, , 2008 U.S. App. LEXIS 22005 (6th Cir. Oct. 20, 2008) (unpublished), a dispute between an employee and employer, the employee had sued first in Ontario. The employer then sued here. The District Court…
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Summary Judgment on State of Mind (Scienter) Affirmed — Assertion of Fifth Amendment Precludes Reliance on Accompanying Testimony

From Securites and Exchange Commission v. Ficken, 2008 U.S. App. LEXIS 21830 (1st Cir. Oct. 20, 2008): Although it is unusual to grant summary judgment on scienter, summary judgment on this issue is sometimes appropriate. "Even in cases where elusive concepts such as motive or intent are at issue, summary judgment may be appropriate if t ...
From Securites and Exchange Commission v. Ficken, 2008 U.S. App. LEXIS 21830 (1st Cir. Oct. 20, 2008): Although it is unusual to grant summary judgment on scienter, summary judgment on this issue is sometimes appropriate. “Even in cases where elusive…
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Sanctions: A Reasonable Pro Se vs. a Reasonable Lawyer

The pro se plaintiff in Rugroden v. State Bank of Park Rapids, 2008 U.S. Dist. LEXIS 84920 (N.D. Cal. Oct. 1, 2008), sued, among others, a Minnesota town over which the federal court in San Jose had no personal jurisdiction: "Although Rule 11 applies to pro se plaintiffs, the court must take into account a plaintiff's pro se statu ...
The pro se plaintiff in Rugroden v. State Bank of Park Rapids, 2008 U.S. Dist. LEXIS 84920 (N.D. Cal. Oct. 1, 2008), sued, among others, a Minnesota town over which the federal court in San Jose had no personal jurisdiction:…
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Environmental Remediation as Spoliation

The defendant in Weyerhaeuser v. Petro-Hunt LLC, 2008 U.S. Dist. LEXIS 84329 (W.D. La. Sept. 29, 2008), an environmental action, denied any legal obligation to remediate yet did so in the face of an imminent state environmental audit and this pending federal litigation: The Court finds evidence that the circumstances of Petro-Hunt's remed ...
The defendant in Weyerhaeuser v. Petro-Hunt LLC, 2008 U.S. Dist. LEXIS 84329 (W.D. La. Sept. 29, 2008), an environmental action, denied any legal obligation to remediate yet did so in the face of an imminent state environmental audit and this…
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Rule 26(g), Overly Broad Discovery Requests, Boilerplate Objections and Excessive Discovery Practice Generally

From Mancia v. Mayflower Textile Servs. Co., 2008 U.S. Dist. LEXIS 83740 (D. Md. Oct. 15, 2008) (Grimm, M.J.): One of the most important, but apparently least understood or followed, of the discovery rules is Fed. R. Civ. P. 26(g), enacted in 1983. The rule requires that every discovery disclosure, request, response or objection must be ...
From Mancia v. Mayflower Textile Servs. Co., 2008 U.S. Dist. LEXIS 83740 (D. Md. Oct. 15, 2008) (Grimm, M.J.): One of the most important, but apparently least understood or followed, of the discovery rules is Fed. R. Civ. P. 26(g),…
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Sarbanes’ Statute of Limitations/Repose Applies to Investment Advisors Act Claims, At Least Where Fraud Is Alleged and Probably Always

The plaintiff in Thomas v Met. Life Ins. Co., 2008 U.S. Dist. LEXIS 82201 (W.D. Okla. Oct. 16, 2008), a putative class action, brought suit alleging material omissions under §§ 206 and 215 of the Investment Advisors Act of 1940 ("the IAA"), 15 U.S.C. § 80b-5 — namely, the alleged failure to disclose conflicts of interest created by MetLife's commission s ...
The plaintiff in Thomas v Met. Life Ins. Co., 2008 U.S. Dist. LEXIS 82201 (W.D. Okla. Oct. 16, 2008), a putative class action, brought suit alleging material omissions under §§ 206 and 215 of the Investment Advisors Act of 1940…
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Attorney-Client Privilege — At Issue Waiver; Blurt-Out at Deposition

At-Issue Waiver. In In re County of Erie, No. 07-5702, 2008 U.S. App. LEXIS 21496 (2d Cir. October 14, 2008), the Second Circuit rejected the Hearn test (Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975)) for determining at-issue waiver of the attorney-client privilege, under which a waiver was effected if the court found: (1) the assertio ...
At-Issue Waiver. In In re County of Erie, No. 07-5702, 2008 U.S. App. LEXIS 21496 (2d Cir. October 14, 2008), the Second Circuit rejected the Hearn test (Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975)) for determining at-issue waiver…
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Antitrust Plaintiff’s Damages Expert May Rely in Part on Lawful Conduct, Despite Defendants’ Claim that to Do So Disproves Causation

From Discover Fin. Servs. V. Visa USA, Inc., 2008 U.S. Dist. LEXIS 82441 (S.D.N.Y. Oct. 11, 2008): The crux of Defendants' challenge with respect to Dr. Jerry Hausman is that he improperly relies upon lawful conduct, including MasterCard's acquiring ban, and thus "disproves causation by ruling in alternative causes that fully expla ...
From Discover Fin. Servs. V. Visa USA, Inc., 2008 U.S. Dist. LEXIS 82441 (S.D.N.Y. Oct. 11, 2008): The crux of Defendants’ challenge with respect to Dr. Jerry Hausman is that he improperly relies upon lawful conduct, including MasterCard’s acquiring ban,…
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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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