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

Holder / Thompson / McNulty Memo, Now Filip Letter of July 9, 2008

Download associated file: Deputy AG Filip Letter to Senators Leahy and Specter.pdf  By letter dated July 9, 2008, Deputy Attorney General Mark Filip undertook to revise the Holder/Thompson/McNulty Memo governing federal prosecutors' requests for waiver of attorney-client ...
Download associated file: Deputy AG Filip Letter to Senators Leahy and Specter.pdf  By letter dated July 9, 2008, Deputy Attorney General Mark Filip undertook to revise the Holder/Thompson/McNulty Memo governing federal prosecutors’ requests for waiver of attorney-client privilege, inter…
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Proving Intentional Infliction of Emotional Distress — Some Cases Speak for Themselves

From Wasmanski v. T.G.I. Friday’s, Inc., 2008 U.S. Dist. LEXIS 51290 (D.N.J. July 2, 2008): Plaintiffs have brought this suit against Defendant T.G.I. Friday's ("Defendant" or "the Restaurant"), alleging that while dining at the Restaurant, Plaintiff Wasmanski discovered a mouse carcass in her mashed potatoes. *** The Complaint ...
From Wasmanski v. T.G.I. Friday’s, Inc., 2008 U.S. Dist. LEXIS 51290 (D.N.J. July 2, 2008): Plaintiffs have brought this suit against Defendant T.G.I. Friday’s (“Defendant” or “the Restaurant”), alleging that while dining at the Restaurant, Plaintiff Wasmanski discovered a mouse…
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Federal Jurisdiction — Grable — State Law Claim that “Necessarily” Raises a Federal Question versus One in which Federal Question Is Merely “Present”

The New York State Attorney General commenced an action in state court alleging fraudulent appraisal practices in People v. First Am. Corp., 2008 U.S. Dist. LEXIS 51790 (S.D.N.Y. July 8, 2008). Because one method of proving the alleged violation of state law involved proof of violation of federal regulations, the defendants removed under Grable and 28 ...
The New York State Attorney General commenced an action in state court alleging fraudulent appraisal practices in People v. First Am. Corp., 2008 U.S. Dist. LEXIS 51790 (S.D.N.Y. July 8, 2008). Because one method of proving the alleged violation of…
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Jury Selection — Presumed Bias — Standards

The plaintiffs lost a medical malpractice action in Allen v. Brown Clinic, PLLP, 2008 U.S. App. LEXIS 14207 (8th Cir. July 2, 2008), and challenged the trial judge’s refusal to strike 6 of 10 members of the venire who had doctor/patient relationships with the defendant doctor or defendant clinic. The standards: A trial court's decisi ...
The plaintiffs lost a medical malpractice action in Allen v. Brown Clinic, PLLP, 2008 U.S. App. LEXIS 14207 (8th Cir. July 2, 2008), and challenged the trial judge’s refusal to strike 6 of 10 members of the venire who had…
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Attorney-Client Privilege — Arkansas Adopts Rules Protecting Inadvertent and Selective Disclosure

Arkansas Rule of Civil Procedure 26(b)(5), in conjunction with Arkansas Rule of Evidence 502, both effective January 10, 2008 (see 2008 Ark. LEXIS 435), establishes a procedure to protect against inadvertent waiver of attorney-client privilege. Ark. R. Evid. 502 also adopts the principle of selective waiver (a minority view), preserving privilege despite dis ...
Arkansas Rule of Civil Procedure 26(b)(5), in conjunction with Arkansas Rule of Evidence 502, both effective January 10, 2008 (see 2008 Ark. LEXIS 435), establishes a procedure to protect against inadvertent waiver of attorney-client privilege. Ark. R. Evid. 502 also…
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$5.2 Million Default Judgment for Spoliation — Defragging Computer as Evidence of Spoliation when Done in Conjunction with Use of “Window Washer” Program — Absence of Metadata and of Documents as Probative of Spoliation

From Southern N.E. Tel. Co. v. Global Naps, Inc., 2008 U.S. Dist. LEXIS 49061 (D. Conn. June 26, 2008): In order to determine what, or how many files, have been deleted, LECG [plaintiff’s forensic expert] relies on "metadata." ... Metadata is a record created for all files containing their name, the date, and where the data is stored on ...
From Southern N.E. Tel. Co. v. Global Naps, Inc., 2008 U.S. Dist. LEXIS 49061 (D. Conn. June 26, 2008): In order to determine what, or how many files, have been deleted, LECG [plaintiff’s forensic expert] relies on “metadata.” … Metadata…
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Experts — Gatekeeper Role of Court — Countervailing Considerations and Jury Issues

From Sudo Properties, Inc. v. Terebonne Parish, 2008 U.S. Dist. LEXIS 50559 (E.D. La. July 2, 2008): It is important to note that when expert testimony or reports are challenged under Daubert, the Court's role as a gatekeeper does not replace either the traditional adversary system, or the jury's place within the system. Scord ...
From Sudo Properties, Inc. v. Terebonne Parish, 2008 U.S. Dist. LEXIS 50559 (E.D. La. July 2, 2008): It is important to note that when expert testimony or reports are challenged under Daubert, the Court’s role as a gatekeeper does not…
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Failure to Advance Meaningful Legal Argument Waives Issue on Appeal

From Berry v Dillon, 2008 U.S. App. LEXIS 13898 (9th Cir. June 27, 2008): Any arguments related to Berry's claims for violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), violations of the Sherman Act, conspiracy to commit copyright infringement, and contributory infringement were made in passing, and are not sup ...
From Berry v Dillon, 2008 U.S. App. LEXIS 13898 (9th Cir. June 27, 2008): Any arguments related to Berry’s claims for violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), violations of the Sherman Act, conspiracy to commit copyright…
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Writ of Prohibition or Mandamus — Factors

The source of power to issue a writ of prohibition or mandamus is 28 U.S.C. § 1651(a), which provides: The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. "Although a writ of ...
The source of power to issue a writ of prohibition or mandamus is 28 U.S.C. § 1651(a), which provides: The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of…
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Proposed Amendments to Fed. R. Civ. P. 26 and 56 — Experts and Summary Judgment

Download associated file: Proposed Amedments to Rules 26_&_56.pdf  Attached are the proposed amendments to Federal Rules of Civil Procedure 26 and 56 that will be circulated for public comment beginning Augus 15. The Rule 26 amendment focuses on expert witness reports an ...
Download associated file: Proposed Amedments to Rules 26_&_56.pdf  Attached are the proposed amendments to Federal Rules of Civil Procedure 26 and 56 that will be circulated for public comment beginning Augus 15. The Rule 26 amendment focuses on expert…
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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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