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

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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Rule 11 Sanctions for Frivolous Denial of Factual Allegations in Answer

From Williams v. R.W. Cannon, Inc., 2008 U.S. Dist. LEXIS 82916 (S.D.Fla. Sept. 24, 2008): ...Rule 11 sanctions must be imposed against Defendants because they frivolously denied factual allegations in Plaintiff's Complaint, even though the allegations were true and Defendants either knew that they were true or would have known that they ...
From Williams v. R.W. Cannon, Inc., 2008 U.S. Dist. LEXIS 82916 (S.D.Fla. Sept. 24, 2008): …Rule 11 sanctions must be imposed against Defendants because they frivolously denied factual allegations in Plaintiff’s Complaint, even though the allegations were true and Defendants…
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Bruton Inapplicable to Joint Bench Trial

From Johnson v. Tennis, 2008 U.S. App. LEXIS 23849 (3d Cir. Nov. 19, 2008): Do the teachings of Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), apply to a bench trial in a criminal proceeding? Bruton and its progeny established that in a joint criminal trial before a jury, a defendant's Sixt ...
From Johnson v. Tennis, 2008 U.S. App. LEXIS 23849 (3d Cir. Nov. 19, 2008): Do the teachings of Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), apply to a bench trial…
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Expert Evidence on Summary Judgment

From Reichhold, Inc. v. U.S. Metals Refining Co., 2008 U.S. Dist. LEXIS 94584 (D.N.J. Nov. 20, 2008): In deciding whether an issue of material fact exists, the court must consider all facts and their reasonable inferences in the light most favorable to the non-moving party.... The court must consider the pleadings, depositions, answers t ...
From Reichhold, Inc. v. U.S. Metals Refining Co., 2008 U.S. Dist. LEXIS 94584 (D.N.J. Nov. 20, 2008): In deciding whether an issue of material fact exists, the court must consider all facts and their reasonable inferences in the light most…
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Filing Notice of Substantively Frivolous Appeal Sanctionable under 28 U.S.C. § 1927

From Gruppo v. FedEx Freight Sys., Inc., 2008 U.S. App. LEXIS 22203 (10th Cir. Oct. 15, 2008) (unpublished): Defendants have requested sanctions against Mr. Gruppo's counsel under 28 U.S.C. § 1927 on the grounds that this appeal is groundless and frivolous. Despite having the opportunity to respond to this request in a reply brief, coun ...
From Gruppo v. FedEx Freight Sys., Inc., 2008 U.S. App. LEXIS 22203 (10th Cir. Oct. 15, 2008) (unpublished): Defendants have requested sanctions against Mr. Gruppo’s counsel under 28 U.S.C. § 1927 on the grounds that this appeal is groundless and…
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Experts, Daubert & Junk

From McGovern v. Brigham & Women’s Hosp., 2008 U.S. Dist. LEXIS 94403 (D. Mass. Nov. 5, 2008) (Young, J.): [A] district judge performing the "gatekeeper" function required by Rule 702 of the Federal Rules of Evidence asks three preliminary questions: First, is this junk science? The Daubert analysis ought resolve ...
From McGovern v. Brigham & Women’s Hosp., 2008 U.S. Dist. LEXIS 94403 (D. Mass. Nov. 5, 2008) (Young, J.): [A] district judge performing the “gatekeeper” function required by Rule 702 of the Federal Rules of Evidence asks three preliminary questions:…
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Securities — Reversible Error under Tellabs to Require Inference of Scienter Be Most Compelling of Competing Inferences

From Frank v. Dana Corp., 2008 U.S. App. LEXIS 23947 (6th Cir. Nov. 19, 2008): Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the district court dismissed the complaint.... In articulating the controlling pleading standard, the district court stated that it was "required to accept plaintiff's inferences of scienter onl ...
From Frank v. Dana Corp., 2008 U.S. App. LEXIS 23947 (6th Cir. Nov. 19, 2008): Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the district court dismissed the complaint…. In articulating the controlling pleading standard, the district…
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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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