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

Filing Frivolous Notice of Appeal Does Not Divest District Court of Jurisdiction — Dismissal without Leave to Amend but with Leave to Argue for Amendment Forecloses District Court Jurisdiction

From Chien v. Skystar Bio Pharm. Co., 2008 U.S. Dist. LEXIS 69084 (D.Conn. Sept. 11, 2008): [A] Notice of Appeal does not divest the district court of jurisdiction in all cases. If a litigant files a "plainly unauthorized notice of appeal which confers on [the Court of Appeals] the power to do nothing but dismiss the appeal," the dist ...
From Chien v. Skystar Bio Pharm. Co., 2008 U.S. Dist. LEXIS 69084 (D.Conn. Sept. 11, 2008): [A] Notice of Appeal does not divest the district court of jurisdiction in all cases. If a litigant files a “plainly unauthorized notice of…
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Sanctions — Ambiguous Law and Hidden Facts — Good Quote

One of the plaintiffs in Pafumi v. Davidson, 2008 U.S. Dist. LEXIS 67036 (S.D. Fla. Sept. 3, 2008), and one of his non-party cohorts were guilty of criminal conduct and SEC violations, so they commenced this securities fraud action, in the Court’s words, to “'misle[a]d the Court into believing that they were victims of fraud when, in fact, they were the p ...
One of the plaintiffs in Pafumi v. Davidson, 2008 U.S. Dist. LEXIS 67036 (S.D. Fla. Sept. 3, 2008), and one of his non-party cohorts were guilty of criminal conduct and SEC violations, so they commenced this securities fraud action, in…
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Party Directly Injured by RICO Violation Has Standing Even If It Is Not the Defendants’ Intended or Primary Victim

Plaintiff RWB in RWB Serv., LLC v. Hartford Computer Group, 2008 U.S. App. LEXIS 18142 (7th Cir. Aug. 25, 2008), complained that the defendants misappropriated used cameras in which the plaintiff had security interests and then resold the cameras as new to Wal-Mart, thus stealing from the plaintiff in order to defraud Wal-Mart. The district court dismissed t ...
Plaintiff RWB in RWB Serv., LLC v. Hartford Computer Group, 2008 U.S. App. LEXIS 18142 (7th Cir. Aug. 25, 2008), complained that the defendants misappropriated used cameras in which the plaintiff had security interests and then resold the cameras as…
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Federal Litigation: Where Did It Go Off Track? — The Poetic Equivalent

A distinguished trial lawyer from Chicago, Bob Cummins, penned what I consider a poetic sibling to my article, Federal Litigation: Where Did It Go Off Track? (published in the Summer 2008 issue of Litigation and posted on the Recent Articles page at http://www.josephny_live.com/articles/viewarticle.php?53). Bob’s classic sonnet follows: ...
A distinguished trial lawyer from Chicago, Bob Cummins, penned what I consider a poetic sibling to my article, Federal Litigation: Where Did It Go Off Track? (published in the Summer 2008 issue of Litigation and posted on the Recent Articles…
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Spoliation — the Ellison/Oracle Decision — Adverse Inference Applied on Summary Judgment

The press has widely reported the fact that Larry Ellison, founder of Oracle, has been sanctioned for spoliation. The opinion, Nursing Home Pension Fund v. Oracle Corp., 2008 U.S. Dist. LEXIS 66740 (N.D. Cal. Sept. 2, 2008), has a few points of interest. First, the plaintiffs complained that the litigation hold notice went out to only 30 of Oracle ...
The press has widely reported the fact that Larry Ellison, founder of Oracle, has been sanctioned for spoliation. The opinion, Nursing Home Pension Fund v. Oracle Corp., 2008 U.S. Dist. LEXIS 66740 (N.D. Cal. Sept. 2, 2008), has a few…
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Federal Rule of Evidence 502 Will Be Law By September 22, 2008

The statute that is Federal Rule of Evidence 502 was sent to the President on September 11, 2008. If not vetoed (and it will not be vetoed) or signed sooner, it will become law within 10 days of September 11, 2008. ...
The statute that is Federal Rule of Evidence 502 was sent to the President on September 11, 2008. If not vetoed (and it will not be vetoed) or signed sooner, it will become law within 10 days of September 11, 2008.
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Negligence Action for Damages Arising from Third-Party Spoliation Permitted Under New York Law

From Newton v. City of New York, 2008 U.S. Dist. LEXIS 54084 (S.D.N.Y. July 16, 2008): New York does not recognize the tort of "third-party negligent spoliation of evidence." [N. 126: Ortega v. City of New York, 9 N.Y.3d 69 (2007).] However, the courts appear to permit an action for the negligent destruction of evidence so long ...
From Newton v. City of New York, 2008 U.S. Dist. LEXIS 54084 (S.D.N.Y. July 16, 2008): New York does not recognize the tort of “third-party negligent spoliation of evidence.” [N. 126: Ortega v. City of New York, 9 N.Y.3d 69…
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Forum Selection Clause Does Not Prevent 28 U.S.C. § 1404 Transfer — When Non-Signatories Are Bound by Forum Selection Clause

The forum selection clause in Elite Sports Enters. v. Lococo, 2008 U.S. Dist. LEXIS 67472 (D.N.J. Sept. 5, 2008), provided: 13.2 Choice of Law and Selection of Venue. Except as provided in Paragraph 13.9 hereof, this Agreement shall be governed by the laws of the State of New Jersey . . . The parties further agree that any actio ...
The forum selection clause in Elite Sports Enters. v. Lococo, 2008 U.S. Dist. LEXIS 67472 (D.N.J. Sept. 5, 2008), provided: 13.2 Choice of Law and Selection of Venue. Except as provided in Paragraph 13.9 hereof, this Agreement shall be governed…
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Federal Rule of Evidence 502 Has Passed Congress

Download associated file: Fed R Evid 502.pdf  On Monday, September 8, 2008, the House passed Federal Rule of Evidence 502 (Waiver of Privilege and Work Product). The Senate passed the Rule on February 27, 2008, and the President is expected to sign it into law shortly. ...
Download associated file: Fed R Evid 502.pdf  On Monday, September 8, 2008, the House passed Federal Rule of Evidence 502 (Waiver of Privilege and Work Product). The Senate passed the Rule on February 27, 2008, and the President is…
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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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