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

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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Standard of Review of Magistrate Judge Decisions — What Type of Sanction Is Dispositive?

From Colida v. Nokia, Inc., 2008 U.S. Dist. LEXIS 75450 (S.D.N.Y. Sept. 26, 2008): Generally, a district court reviews the recommendations of a magistrate judge for clear error on the face of the record. If specific objections are made to a recommendation on a dispositive motion, however, a district court reviews that recom ...
From Colida v. Nokia, Inc., 2008 U.S. Dist. LEXIS 75450 (S.D.N.Y. Sept. 26, 2008): Generally, a district court reviews the recommendations of a magistrate judge for clear error on the face of the record. If specific objections are made to…
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Sanctions — Post-Trial Rule 11 Motion Must Satisfy 21-Day Safe Harbor

The defendant in Saldibar v. Delray One, Inc., 2008 U.S. Dist. LEXIS 61470 (S.D. Fla. Aug. 12, 2008), moved for sanctions after trial on the theory that the plaintiff’s case was doomed to lose at trial. The motion, however, was too late for the plaintiff to correct or withdraw its offending positions because the defendant did not file the motion until afte ...
The defendant in Saldibar v. Delray One, Inc., 2008 U.S. Dist. LEXIS 61470 (S.D. Fla. Aug. 12, 2008), moved for sanctions after trial on the theory that the plaintiff’s case was doomed to lose at trial. The motion, however, was…
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Adequate Photographs of Spoliated Evidence Preclude Ultimate Sanctions

From Koehler v. Midtown Athletic Club, LLP, 2008 N.Y. App. Div. LEXIS 7574 (4th Dept. Oct. 10, 2008): Plaintiff commenced this action seeking damages for injuries he allegedly sustained when his foot became entangled in a net while playing tennis at a facility owned and operated by defendants. Plaintiff's attorney notified defendants th ...
From Koehler v. Midtown Athletic Club, LLP, 2008 N.Y. App. Div. LEXIS 7574 (4th Dept. Oct. 10, 2008): Plaintiff commenced this action seeking damages for injuries he allegedly sustained when his foot became entangled in a net while playing tennis…
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Are Witness Statements Subject to Rule 26(a)(1) Disclosure or Protected as Work Product? Affidavits Filed in Bad Faith — Rule 56(g) Sanctions

In responding to the plaintiff’s motion for summary judgment and in support of their own motion, the defendant filed false affidavits that had not previously been produced to the plaintiff, in Trustees of Plumbers & Steamfitters Local Union No. 43 v. Crawford, 2008 U.S. Dist. LEXIS 73914 (E.D. Tenn. Aug. 11, 2008). The Court held that both Rule 26(a)(1) an ...
In responding to the plaintiff’s motion for summary judgment and in support of their own motion, the defendant filed false affidavits that had not previously been produced to the plaintiff, in Trustees of Plumbers & Steamfitters Local Union No. 43…
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RICO — Causation Post-Bridge

From Ritter v. Klisivitch, 2008 U.S. Dist. LEXIS 58818 (E.D.N.Y. July 30, 2008): Plaintiff alleges that Defendants engaged in "a RICO enterprise scheme ... whose activities included tax evasion, money laundering, financial institution fraud, insurance fraud, bankruptcy fraud, and obstruction of justice, all with the intended goal of pr ...
From Ritter v. Klisivitch, 2008 U.S. Dist. LEXIS 58818 (E.D.N.Y. July 30, 2008): Plaintiff alleges that Defendants engaged in “a RICO enterprise scheme … whose activities included tax evasion, money laundering, financial institution fraud, insurance fraud, bankruptcy fraud, and obstruction…
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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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