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

Federal Court May Dismiss Derivative Action for Failure of Demand Without Reaching Question of Subject Matter Jurisdiction

Ordinarily, federal courts must address subject matter jurisdiction as a threshold question. But not always. The Ninth Circuit ruled in Potter v. Hughes, 2008 U.S. App. LEXIS 21306 (9th Cir. Oct. 10, 2008), that a federal court may dismiss for failure to satisfy the demand requirement of Federal Rule of Civil Procedure 23.1 before reaching the question of s ...
Ordinarily, federal courts must address subject matter jurisdiction as a threshold question. But not always. The Ninth Circuit ruled in Potter v. Hughes, 2008 U.S. App. LEXIS 21306 (9th Cir. Oct. 10, 2008), that a federal court may dismiss for…
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Third Circuit: No Diversity Jurisdiction over Partnership with U.S. Citizen Partner Domiciled Abroad; Dual Citizenship

The plaintiff in Swiger v. Allegheny Energy, Inc., 2008 U.S. App. LEXIS 18139 (3d Cir. Aug. 25, 2008), sued three corporations and a large law firm, one of whose partners was a dual U.S. and U.K. citizen domiciled in the U.K. [No Diversity Jurisdiction.] Whether a federal district court has diversity jurisdiction over a lawsuit ...
The plaintiff in Swiger v. Allegheny Energy, Inc., 2008 U.S. App. LEXIS 18139 (3d Cir. Aug. 25, 2008), sued three corporations and a large law firm, one of whose partners was a dual U.S. and U.K. citizen domiciled in the…
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Server Log Data and Other Transient Data Comprise Discoverable Electronically-Stored Information

In Columbia Pictures Indus. v. Fung, 2007 U.S. Dist. LEXIS 97576 (C.D. Cal. June 8, 2007), a file sharing case, the issue was the discoverability of Server Log Data (defined in the opinion as “the IP addresses of users who are downloading content items and who themselves seek the IP addresses of other users who have a desired content item”), which are tra ...
In Columbia Pictures Indus. v. Fung, 2007 U.S. Dist. LEXIS 97576 (C.D. Cal. June 8, 2007), a file sharing case, the issue was the discoverability of Server Log Data (defined in the opinion as “the IP addresses of users who…
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Implied Holdings of Appellate Court on Remand

The Court of Appeals remanded the action in Terminix Int’l Co., LP v. Palmer Ranch Ltd. P’ship, 280 F. App’x 829 (11th Cir. 2008), with instructions to grant the plaintiff’s motion to compel arbitration. On remand, the trial court dismissed the action for lack of subject matter jurisdiction. Reversing, the Court of Appeals stressed that it had been ...
The Court of Appeals remanded the action in Terminix Int’l Co., LP v. Palmer Ranch Ltd. P’ship, 280 F. App’x 829 (11th Cir. 2008), with instructions to grant the plaintiff’s motion to compel arbitration. On remand, the trial court dismissed…
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Arbitration — Non-Signatory Parent Company Cannot Compel Arbitration Pursuant to Employee’s Agreement with Subsidiary to Work for Both Parent and Subsidiary.

From Kimberlin v. Renasant Bank, 2008 U.S. App. LEXIS 20754 (6th Cir. Sept. 25, 2008), in which the plaintiff employee sued the parent bank for which he worked pursuant to an employment agreement (the “Dual Employment Contract”) with an insurance company subsidiary. Held, because the parent was not a signatory to the arbitration agreement, it could not a ...
From Kimberlin v. Renasant Bank, 2008 U.S. App. LEXIS 20754 (6th Cir. Sept. 25, 2008), in which the plaintiff employee sued the parent bank for which he worked pursuant to an employment agreement (the “Dual Employment Contract”) with an insurance…
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Arbitrable vs. Non-Arbitrable Bankruptcy-Related Claims

From Judge Martin Glenn’s opinion in In re Bethlehem Steel Corp. v. Moran Towing Co., 390 B.R. 784 (Bankr. S.D.N.Y. 2008): [Fraudulent Transfer Claims Exempt from Arbitration.] In this Circuit, courts have exempted fraudulent transfer claims from arbitration because they are statutory claims belonging to the trustee and are ...
From Judge Martin Glenn’s opinion in In re Bethlehem Steel Corp. v. Moran Towing Co., 390 B.R. 784 (Bankr. S.D.N.Y. 2008): [Fraudulent Transfer Claims Exempt from Arbitration.] In this Circuit, courts have exempted fraudulent transfer claims from arbitration because they…
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Survival Period for Reps and Warranties in Acquisition Agreement Does Not Comprise Implicit Limitations Period — Circuit Split

From Western Filer Corp. v. Argan, Inc., 2008 U.S. App. LEXIS 18147 (9th Cir. Aug. 25, 2008): We are asked to decide an issue of first impression under California law, whether a provision within a Stock Purchase Agreement ("SPA") permitting the representations and warranties of the parties to survive closing, also serves as a contractual ...
From Western Filer Corp. v. Argan, Inc., 2008 U.S. App. LEXIS 18147 (9th Cir. Aug. 25, 2008): We are asked to decide an issue of first impression under California law, whether a provision within a Stock Purchase Agreement (“SPA”) permitting…
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Municipal Corporations Unable to Form Criminal Intent Essential to RICO Liability

From Pilitz v. Village of Rockville Centre, 2008 U.S. Dist. LEXIS 72231 (E.D.N.Y. Sept. 22, 2008): Courts in this circuit have considered whether a municipality is capable of forming the requisite intent to support a RICO violation. Each court that has faced this question has held that because a municipality cannot form the intent ne ...
From Pilitz v. Village of Rockville Centre, 2008 U.S. Dist. LEXIS 72231 (E.D.N.Y. Sept. 22, 2008): Courts in this circuit have considered whether a municipality is capable of forming the requisite intent to support a RICO violation. Each court that…
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CAFA’s Removal Provision Trumps Anti-Removal Provision of Securities Act of 1933: Caselaw Split

From N.J. Carpenters Vacation Fund v. Harborview Mort. Loan Trust 2006-4, 2008 U.S. Dist. LEXIS 72039 (S.D.N.Y. Sept. 24, 2008): This putative class action, which is rooted in the mortgage-backed securities crisis, addresses an issue of first impression in this Circuit--whether the removal provision of the Class Action Fairness Act of 2 ...
From N.J. Carpenters Vacation Fund v. Harborview Mort. Loan Trust 2006-4, 2008 U.S. Dist. LEXIS 72039 (S.D.N.Y. Sept. 24, 2008): This putative class action, which is rooted in the mortgage-backed securities crisis, addresses an issue of first impression in this…
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Third-Party Defendants and Removal — Realignment of Parties — Right of Third-Party Defendant to Remove

In Huntsman Corp. v. Int’l Risk Ins. Co., 2008 U.S. Dist. LEXIS 74397 (S.D. Tex. Sept. 26, 2008), Plaintiff Huntsman sued Defendant IRI for insurance coverage in state court. IRI in turn sued its reinsurers in a third-party complaint. The reinsurers/third-party defendants removed the case to federal court. Judge Lee H. Rosenthal’s analysis:
In Huntsman Corp. v. Int’l Risk Ins. Co., 2008 U.S. Dist. LEXIS 74397 (S.D. Tex. Sept. 26, 2008), Plaintiff Huntsman sued Defendant IRI for insurance coverage in state court. IRI in turn sued its reinsurers in a third-party complaint. The…
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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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