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

RICO Conspiracy Post-Bridge: Latecomer Liability for All Conspiracy-Caused Injury

The defendant in Grange Mut. Cas. Co. v. Mack, 2008 U.S. App. LEXIS 18467 (6th Cir. Aug 26, 2008), joined the conspiracy to defraud the plaintiff insurers after the plaintiffs suffered the harm for which they was suing. The district court dismissed on the ground that there was no causal connection between the defendant’s acts and the plaintiffs’ injuries ...
The defendant in Grange Mut. Cas. Co. v. Mack, 2008 U.S. App. LEXIS 18467 (6th Cir. Aug 26, 2008), joined the conspiracy to defraud the plaintiff insurers after the plaintiffs suffered the harm for which they was suing. The district…
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New Expert Witness Article Posted

A new article posted today analyzes the proposed amendments to Fed.R.Civ.P. 26(a)(2) and 26(a)(4) that would make the following changes in expert discovery: 1. Communications between counsel and retained experts would generally be protected from disclosure or discovery. 2. Draft expert reports would no longer be discoverable. ...
A new article posted today analyzes the proposed amendments to Fed.R.Civ.P. 26(a)(2) and 26(a)(4) that would make the following changes in expert discovery: 1. Communications between counsel and retained experts would generally be protected from disclosure or discovery. 2. Draft…
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Federal Judicial Center Summary Judgment Study

Download associated file: FJC Summary Judgment Study.pdf  In connection with the proposed amendments to Federal Rule of Civil Procedure 56, the Federal Judicial Center, at the request of the Advisory Committee on the Federal Rules, undertook to study whether the proposed ...
Download associated file: FJC Summary Judgment Study.pdf  In connection with the proposed amendments to Federal Rule of Civil Procedure 56, the Federal Judicial Center, at the request of the Advisory Committee on the Federal Rules, undertook to study whether…
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Securities — Summary Judgment on Scienter Appropriate in Light of Defendants’ Invocation of Fifth Amendment Rights

From SEC v. Lyttle, 2008 U.S. App. LEXIS 17048 (7th Cir. Aug. 7, 2008): The defendants argue that because scienter is a state of mind, summary judgment can almost never be granted in favor of a plaintiff who has the burden of proving scienter, as the SEC did. For it is always possible, they say, that a reasonable jury would credit a defe ...
From SEC v. Lyttle, 2008 U.S. App. LEXIS 17048 (7th Cir. Aug. 7, 2008): The defendants argue that because scienter is a state of mind, summary judgment can almost never be granted in favor of a plaintiff who has the…
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Spoliation by Failing to Make Payments to Third Party Storing Electronically-Stored Information, Resulting in Deletion

From Cyntegra, Inc. v. Idexx Laboratories, Inc., 2007 U.S. Dist. LEXIS 97417 (C.D. Cal. Sept. 21, 2007): Defendant asserts that Plaintiffs failure to preserve business documents constituted spoliation and make sanctions appropriate. Although the documents were stored on NetNation's outsourced servers, they were deleted due to Plaintiff ...
From Cyntegra, Inc. v. Idexx Laboratories, Inc., 2007 U.S. Dist. LEXIS 97417 (C.D. Cal. Sept. 21, 2007): Defendant asserts that Plaintiffs failure to preserve business documents constituted spoliation and make sanctions appropriate. Although the documents were stored on NetNation’s outsourced…
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Fed.R.Evid. 606(b) — Motion to Interview Jurors to Assess Undue Outside Influence, Pre-Closing Deliberations

One of the convicted defendants in U.S. v. Poulsen, 2008 U.S. Dist. LEXIS 61141 (N.D. Ohio. Aug. 1, 2008), sought judicial permission to interview jurors to assess whether they were influenced by media coverage or discussed the case among themselves prior to the start of deliberations. The Court denied the motion: Courts seldom permit l ...
One of the convicted defendants in U.S. v. Poulsen, 2008 U.S. Dist. LEXIS 61141 (N.D. Ohio. Aug. 1, 2008), sought judicial permission to interview jurors to assess whether they were influenced by media coverage or discussed the case among themselves…
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Attorney-Client Privilege — Waiver — Supplying Privilege Log within One Month of Production Timely Enough to Avoid Finding of Waiver

From White v. Graceland College Ctr. for Prof’l Dev. & Lifelong Learning, Inc., 2008 U.S. Dist. LEXIS 63088 (D. Kan. Aug. 7, 2008): The party who withholds discovery materials must provide sufficient information, usually in the form of a privilege log, to enable the other party to evaluate the applicability of the privilege or protectio ...
From White v. Graceland College Ctr. for Prof’l Dev. & Lifelong Learning, Inc., 2008 U.S. Dist. LEXIS 63088 (D. Kan. Aug. 7, 2008): The party who withholds discovery materials must provide sufficient information, usually in the form of a privilege…
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Securities Fraud Trial — Disclosures and Advice Admissible — Explanations of Disclosures and Advice Excluded

The trial judge in In re Apollo Group, Inc. Secs. Litig., 2008 U.S. Dist. LEXIS 61995 (D. Ariz. Aug. 4, 2008), accepted the jury’s conclusion that Apollo “on six different occasions ... misrepresented the actual state of affairs surrounding the program review [at the University of Phoenix, an institution Apollo owns] by making public statements at odds wi ...
The trial judge in In re Apollo Group, Inc. Secs. Litig., 2008 U.S. Dist. LEXIS 61995 (D. Ariz. Aug. 4, 2008), accepted the jury’s conclusion that Apollo “on six different occasions … misrepresented the actual state of affairs surrounding the…
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Invited Error Doctrine — Impermissible to Complain About Instruction Substantially Identical to One Proposed

From Burton v. General Motors Corp., 2008 U.S. Dist. LEXIS 62758 (S.D. Ind. Aug. 15, 2008): General Motors' instruction [on promissory estoppel] is almost identical to the instruction the court gave to the jury. The elements appear in a different order, and there are small changes to the wording of some of the elements. The only other d ...
From Burton v. General Motors Corp., 2008 U.S. Dist. LEXIS 62758 (S.D. Ind. Aug. 15, 2008): General Motors’ instruction [on promissory estoppel] is almost identical to the instruction the court gave to the jury. The elements appear in a different…
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Spoliation — Good Quote

"Aside perhaps from perjury, no act serves to threaten the integrity of the judicial process more than the spoliation of evidence. Our adversarial process is designed to tolerate human failings — erring judges can be reversed, uncooperative counsel can be shepherded, and recalcitrant witnesses compelled to testify. But, when critical documents go mi ...
“Aside perhaps from perjury, no act serves to threaten the integrity of the judicial process more than the spoliation of evidence. Our adversarial process is designed to tolerate human failings — erring judges can be reversed, uncooperative counsel can be…
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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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