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

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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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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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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