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 — First Amendment Defense to RICO Liability and Damages Allegations

Plaintiff Michael Savage in Savage v. Council on Am.-Islamic Relations, Inc., 2008 U.S. Dist. LEXIS 60545 (N.D. Cal. July 25, 2008), a talk show host, filed a RICO suit based on the defendant’s (i) having posted on its website a four minute clip from the plaintiff’s broadcast together with extensive criticism of what the plaintiff said, and (ii) sending p ...
Plaintiff Michael Savage in Savage v. Council on Am.-Islamic Relations, Inc., 2008 U.S. Dist. LEXIS 60545 (N.D. Cal. July 25, 2008), a talk show host, filed a RICO suit based on the defendant’s (i) having posted on its website a…
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Expert Testimony Should Not Be Excluded Because the Court Credits One Version of the Facts rather than Another

From Mater of the Complaint of Atl. Marine Prop. Holding Co., 2008 U.S. Dist. LEXIS 61026 (S.D. Ala. Aug. 11, 2008): Expert testimony should not be excluded "on the ground that the court believes one version of the facts and not the other." Allstate Insurance Co. v. Hugh Cole Builder Inc., 137 F.Supp.2d 1283, 1285 (M.D. Ala. 2001) ...
From Mater of the Complaint of Atl. Marine Prop. Holding Co., 2008 U.S. Dist. LEXIS 61026 (S.D. Ala. Aug. 11, 2008): Expert testimony should not be excluded “on the ground that the court believes one version of the facts and…
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Sanctions — $5.4 Million Default Judgment for Discovery Abuse Affirmed

The Sixth Circuit affirmed one of the largest sanctions awards in history — a default judgment in the amount of approximately $5.4 million in favor of Allstate Insurance Company — for rampant discovery abuse in Grange Mut. Cas. Co. v. Mack, 270 F. App’x 372 (6th Cir. 2008). The four-part test applied by the Court in assessing the propriety of a defaul ...
The Sixth Circuit affirmed one of the largest sanctions awards in history — a default judgment in the amount of approximately $5.4 million in favor of Allstate Insurance Company — for rampant discovery abuse in Grange Mut. Cas. Co. v.…
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RICO and Twombly

From CSX Transportation, Inc. v. Meserole Street Recycling, Inc., 2008 U.S. Dist. LEXIS 61376 (E.D. Mich. Aug. 12, 2008): In this case, the Court finds that Plaintiff has failed to "nudge [its RICO continuity] claim[] across the line from conceivable to plausible." As did Twombly, this case involves a federal statute under whi ...
From CSX Transportation, Inc. v. Meserole Street Recycling, Inc., 2008 U.S. Dist. LEXIS 61376 (E.D. Mich. Aug. 12, 2008): In this case, the Court finds that Plaintiff has failed to “nudge [its RICO continuity] claim[] across the line from conceivable…
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Experts — Gatekeeper Role Largely Disappears in Bench Trials

From United States v. Apex Oil Co., 2008 U.S. Dist. LEXIS 59964 (S.D. Ill. July 28, 2008): In the previous orders, the Court noted that other courts have held that the Rule 702 inquiry may vary slightly in the case of a bench trial. As the Seventh Circuit has held: It is not that evidence may be less reliable during a ...
From United States v. Apex Oil Co., 2008 U.S. Dist. LEXIS 59964 (S.D. Ill. July 28, 2008): In the previous orders, the Court noted that other courts have held that the Rule 702 inquiry may vary slightly in the case…
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Error to Apply Zubulake Factors to Discovery Dispute Involving Paper Documents

From Tierno v. Rite Aid Corp., 2008 U.S. Dist. LEXIS 58748 (N.D. Cal. July 31, 2008): Rite Aid correctly argues that the seven-factor Zubulake test which Judge Larson applied is intended solely for electronic discovery, not for discovery of paper documents. The Zubulake opinion sought to refine a set of factors which had b ...
From Tierno v. Rite Aid Corp., 2008 U.S. Dist. LEXIS 58748 (N.D. Cal. July 31, 2008): Rite Aid correctly argues that the seven-factor Zubulake test which Judge Larson applied is intended solely for electronic discovery, not for discovery of paper…
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Appeals — Factual Arguments Disregarded Where Cited Material Not Included in Appendix, Even if Buried in the Record

From Newman v. State Farm Fire & Cas. Co., 2008 U.S. App. LEXIS 16690 (10th Cir. Aug. 5, 2008): Before considering the facts and issues in this appeal, we address a preliminary matter concerning State Farm's improper citation in the fact section of its brief, and throughout other parts of its brief to a lesser extent, to transcript and d ...
From Newman v. State Farm Fire & Cas. Co., 2008 U.S. App. LEXIS 16690 (10th Cir. Aug. 5, 2008): Before considering the facts and issues in this appeal, we address a preliminary matter concerning State Farm’s improper citation in the…
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Attorney-Client Privilege — “At Issue” Waiver — Mere Mention of Advice and Relevance Insufficient

From Hodak v. Madison Capital Mgmt., LLC, 2008 U.S. Dist. LEXIS 57289 (N.D. Ill. July 28, 2008): Advice of counsel is not placed “in issue” during litigation simply because it is mentioned by a party. Advice is not in issue merely because it is relevant, and does not necessarily become in issue merely because the ...
From Hodak v. Madison Capital Mgmt., LLC, 2008 U.S. Dist. LEXIS 57289 (N.D. Ill. July 28, 2008): Advice of counsel is not placed “in issue” during litigation simply because it is mentioned by a party. Advice is not in issue…
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28 U.S.C. § 1292(b) Certification Standard

From Florio v. City of New York, 2008 U.S. Dist. LEXIS 59022 (S.D.N.Y. Aug. 5, 2008) (Scheindlin, J.): It is a "basic tenet of federal law to delay appellate review until a final judgment has been entered." However, a court, in its discretion, may certify an interlocutory order for appeal if the order "[1] involves a controlling questi ...
From Florio v. City of New York, 2008 U.S. Dist. LEXIS 59022 (S.D.N.Y. Aug. 5, 2008) (Scheindlin, J.): It is a “basic tenet of federal law to delay appellate review until a final judgment has been entered.” However, a court,…
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Ninth Circuit Holds that American Pipe Tolls Statute of Limitations for Absent Class Member Who Files Suit Before Class Certification Decided

Deciding what it described as an issue of first impression in the Circuit, the Ninth Circuit held in In re Hanford Nuclear Reservation Lit., 2008 U.S. App. LEXIS 16479 (9th Cir. July 29, 2008), that Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974) tolls the statute of limitations for a plaintiff who files a separate action pending class certificatio ...
Deciding what it described as an issue of first impression in the Circuit, the Ninth Circuit held in In re Hanford Nuclear Reservation Lit., 2008 U.S. App. LEXIS 16479 (9th Cir. July 29, 2008), that Am. Pipe & Constr. Co.…
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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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