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

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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Federal Arbitration Act and Diversity Jurisdiction — Determining the Amount in Controversy

Resolving a matter of first impression in the D.C. Circuit, Karsner v. Lothian, 532 F.3d 876 (D.C. Cir. 2008), adopts the “demand” approach to determining federal jurisdiction over arbitration proceedings brought pursuant to the Federal Arbitration Act: Although the Federal Arbitration Act (FAA) constitutes federal law, "the Supreme C ...
Resolving a matter of first impression in the D.C. Circuit, Karsner v. Lothian, 532 F.3d 876 (D.C. Cir. 2008), adopts the “demand” approach to determining federal jurisdiction over arbitration proceedings brought pursuant to the Federal Arbitration Act: Although the Federal…
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RICO — Lawyer Performing Legal Services Does Not Satisfy Reves Test Even if Named Part of Association-in-Fact Enterprise with Client

The plaintiff trust beneficiary alleged that his sister and her lawyer (who also represented the trust) comprised an association-in-fact RICO enterprise pillaging the trust. The Ninth Circuit held that the lawyer could not be held liable under 18 U.S.C. § 1962(c) because her rendering of legal services did not satisfy the operation-and-management test of Reves ...
The plaintiff trust beneficiary alleged that his sister and her lawyer (who also represented the trust) comprised an association-in-fact RICO enterprise pillaging the trust. The Ninth Circuit held that the lawyer could not be held liable under 18 U.S.C. §…
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Summary Judgment — Declarations from Witnesses Not Disclosed Per Rule 26(a)(1) Excluded Pursuant to Rule 37(c)(1)

From Marin v. Evans, 2008 U.S. Dist. LEXIS 61922 (E.D. Wash. July 23, 2008) (a class action): In response to the Court's invitation to file a sur-reply to Defendants' Motion for Summary Judgment, Plaintiffs filed Declarations from both name-Plaintiffs, as well as Declarations from individuals who were not previously disclosed to Defendan ...
From Marin v. Evans, 2008 U.S. Dist. LEXIS 61922 (E.D. Wash. July 23, 2008) (a class action): In response to the Court’s invitation to file a sur-reply to Defendants’ Motion for Summary Judgment, Plaintiffs filed Declarations from both name-Plaintiffs, as…
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Privilege and Waiver — Drafts of Disclosure Documents — Public Relations Firms

Professor Daniel J. Capra of Fordham, the Reporter to the Advisory Committee on the Federal Rule of Evidence, issued a very useful privilege opinion as Special Master in In re New York Renu with Moisureloc Prod. Liab. Litig., WL 2338552 (D.S.C. May 8, 2008). Drafts of Disclosure Documents. The opinion explores the split in the case law concer ...
Professor Daniel J. Capra of Fordham, the Reporter to the Advisory Committee on the Federal Rule of Evidence, issued a very useful privilege opinion as Special Master in In re New York Renu with Moisureloc Prod. Liab. Litig., WL 2338552…
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Special Litigation Committees — How Much Deference? — Minnesota Supreme Court Adopts New York’s Auerbach Standard Over Delaware’s Less Deferential Zapata Approach

The Minnesota Supreme Court in In re UnitedHealth Group Inc. Shareholder Deriv. Litig.,2008 Minn. LEXIS 419 (Minn. S.Ct. Aug. 14, 2008), answering a certified question from the United States District Court for the District of Minnesota, adopted the highly deferential standard of Auerbach v. Bennett, 47 N.Y.2d 619, 393 N.E.2d 994, 999-1000, 419 N.Y.S.2 ...
The Minnesota Supreme Court in In re UnitedHealth Group Inc. Shareholder Deriv. Litig.,2008 Minn. LEXIS 419 (Minn. S.Ct. Aug. 14, 2008), answering a certified question from the United States District Court for the District of Minnesota, adopted the highly deferential…
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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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