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

Hedonic Damages, Daubert and the Province of the Jury

From Martinez v. Caterpillar, Inc., 2007 U.S. Dist. LEXIS 97414 (D.N.M. Sept. 6, 2007): While New Mexico permits the recovery of hedonic damages, expert testimony attempting to quantify such damages invades the fact finder's domain. See Romero v. Byers, 117 N.M. 422, 428, 872 P.2d 840, 846 (1994); Couch v. Astec Industries, In ...
From Martinez v. Caterpillar, Inc., 2007 U.S. Dist. LEXIS 97414 (D.N.M. Sept. 6, 2007): While New Mexico permits the recovery of hedonic damages, expert testimony attempting to quantify such damages invades the fact finder’s domain. See Romero v. Byers, 117…
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Inherent Power Sanctions — High Threshold for Bad Faith — Limiting Language

After the plaintiffs prevailed in their civil rights action in Mendez v. County of San Bernardino, 2008 U.S. App. LEXIS 18426 (9th Cir. Aug. 27, 2008), the trial judge sanctioned plaintiffs’ lead counsel for failure to appear personally at a hearing on an Order to Show Cause, although it was not specified in the order that lead counsel personally was requi ...
After the plaintiffs prevailed in their civil rights action in Mendez v. County of San Bernardino, 2008 U.S. App. LEXIS 18426 (9th Cir. Aug. 27, 2008), the trial judge sanctioned plaintiffs’ lead counsel for failure to appear personally at a…
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Equitable Doctrine of Laches May, But Presumptively Does Not, Bar a Copyright Infringement Action Filed within the Statute of Limitations — Circuit Split

Equitable Doctrine of Laches May, But Presumptively Does Not, Bar a Copyright Infringement Action Filed within the Statute of Limitations — Circuit Split From Peter Letterese & Assocs., Inc. v. World Institute of Scientology Enters., 533 F.3d 1287 (11th Cir. 2008): In answering the question of whether the defense of laches may be inter ...
Equitable Doctrine of Laches May, But Presumptively Does Not, Bar a Copyright Infringement Action Filed within the Statute of Limitations — Circuit Split From Peter Letterese & Assocs., Inc. v. World Institute of Scientology Enters., 533 F.3d 1287 (11th Cir.…
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It Turns Out That “Is” Actually Means “Is,” At Least Sometimes

From Judge Milton Shadur’s opinion for the Ninth Circuit in Guidiville Band of Pomo Indians v. NGV Gaming, Ltd., 531 F.3d 767; 2008 U.S. App. LEXIS 13474 (9th Cir. 2008): This appeal presents the single, seemingly straightforward question whether the word "is" really means "is," at least as that word is employed in 25 U.S.C. § 81. At ...
From Judge Milton Shadur’s opinion for the Ninth Circuit in Guidiville Band of Pomo Indians v. NGV Gaming, Ltd., 531 F.3d 767; 2008 U.S. App. LEXIS 13474 (9th Cir. 2008): This appeal presents the single, seemingly straightforward question whether the…
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Inherent Power Sanctions: Frivolous Positions + Scandalous Allegations = Bad Faith

From Gwynn v. Walker, 2008 U.S. App. LEXIS 14488 (11th Cir. July 7, 2008), addressing inherent power sanctions, which require a finding of bad faith: Sanctions are "especially appropriate where counsel takes frivolous legal positions supported by scandalous accusations." ...
From Gwynn v. Walker, 2008 U.S. App. LEXIS 14488 (11th Cir. July 7, 2008), addressing inherent power sanctions, which require a finding of bad faith: Sanctions are “especially appropriate where counsel takes frivolous legal positions supported by scandalous accusations.”
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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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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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