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 / Mail Fraud — Bridge Does Not Dispense with Reliance Requirement Where Reliance Affirmatively Pled

After the district judge denied class certification in Dungan v. Academy at Ivy Ridge, 2008 U.S. Dist. LEXIS 56757 (N.D.N.Y. July 21, 2008), the plaintiffs sought reconsideration on the ground that the Supreme Court’s June 9, 2008 decision in Bridge v. Phoenix Bond & Indem. Co., 128 S. Ct. 2131 (2008), constituted a material change in controlling law ...
After the district judge denied class certification in Dungan v. Academy at Ivy Ridge, 2008 U.S. Dist. LEXIS 56757 (N.D.N.Y. July 21, 2008), the plaintiffs sought reconsideration on the ground that the Supreme Court’s June 9, 2008 decision in Bridge…
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Sanctions for Frivolous Removal — § 1447(c) Trumps § 1927 — Attorneys’ Fees Application Untimely After 14 Days Post-Remand

The plaintiff in Jericho Group, Ltd. v. Midtown Development, LP, 2008 U.S. Dist. LEXIS 52706 (S.D.N.Y. May 22, 2008), prevailed on a motion to remand but waited 81 days after the case was remanded to seek attorneys' fees, moving under 28 U.S.C. §§ 1447(c) and 1927. The Court ruled that a motion for attorneys' fees under § 1447(c) must be made within 14 da ...
The plaintiff in Jericho Group, Ltd. v. Midtown Development, LP, 2008 U.S. Dist. LEXIS 52706 (S.D.N.Y. May 22, 2008), prevailed on a motion to remand but waited 81 days after the case was remanded to seek attorneys’ fees, moving under…
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Electronically-Stored Information — Metadata Associated with Public Records Are Themselves Public Records within Washington State Statute

The issue in O’Neill v. City of Shoreline, 2008 Wash. App. LEXIS 1740 (Wash. Ct. App. July 21, 2008), was whether metadata in the electronic version of email subject to production under the Public Records Act of the State of Washington (PRA) were, like the email, subject to disclosure under the PRA. A "public record" is:
The issue in O’Neill v. City of Shoreline, 2008 Wash. App. LEXIS 1740 (Wash. Ct. App. July 21, 2008), was whether metadata in the electronic version of email subject to production under the Public Records Act of the State of…
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Summary Judgment — Some Thoughts About the Proposed Amendments to Federal Rule of Civil Procedure 56

Following up on yesterday’s posting discussing the proposed amendments to Federal Rule of Civil Procedure 26(b)(2), my thoughts about the Advisory Committee's proposed amendments to Rule 56 (summary judgment) follow. The text of the proposal is available at our posting of July 4, 2008: The version going out for public comments is a distinct improvement o ...
Following up on yesterday’s posting discussing the proposed amendments to Federal Rule of Civil Procedure 26(b)(2), my thoughts about the Advisory Committee’s proposed amendments to Rule 56 (summary judgment) follow. The text of the proposal is available at our posting…
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Experts — Some Thoughts About the Proposed Amendments to Federal Rule of Civil Procedure 26

The Advisory Committee's proposed amendments to Rule 26 concerning expert discovery and disclosure are posted at the blog entry for July 4, 2008. My thoughts: The Rule 26 amendments extremely well done. I like the balances struck, the language and particularly the new summary of opinions of Rule 26(a)(2)(A) witnesses. There are two practical problems that ...
The Advisory Committee’s proposed amendments to Rule 26 concerning expert discovery and disclosure are posted at the blog entry for July 4, 2008. My thoughts: The Rule 26 amendments extremely well done. I like the balances struck, the language and…
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Securities — PSLRA — One of Two Proposed Lead Plaintiffs Rejected as “Pawn of Counsel”

From In re Monster Worldwide, Inc. Secs. Litig., 2008 U.S. Dist. LEXIS 53466 (S.D.N.Y. July 14, 2008): Here, as part of class certification discovery, defendants deposed STA-ILA [Steamship Trade Association-International Longshoremen's Association Pension Fund] witness Horace Alston, Co-Chairman of the fund, who testified that he was the ...
From In re Monster Worldwide, Inc. Secs. Litig., 2008 U.S. Dist. LEXIS 53466 (S.D.N.Y. July 14, 2008): Here, as part of class certification discovery, defendants deposed STA-ILA [Steamship Trade Association-International Longshoremen’s Association Pension Fund] witness Horace Alston, Co-Chairman of the…
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Removal — Lack of Subject Matter Jurisdiction Waived? Dilatoriness in Making Remand Motion Relevant to Court’s Decision

The defendant in Neville v. Value City Dep’t Stores, LLC, 2008 U.S. Dist. LEXIS 55284 (S.D. Ill. July 18, 2008), removed this trip and fall case based on diversity jurisdiction. More than a year later, the plaintiff filed a motion to remand, claiming that the amount in controversy did not exceed $75,000: Although § 1447(c) provides no ...
The defendant in Neville v. Value City Dep’t Stores, LLC, 2008 U.S. Dist. LEXIS 55284 (S.D. Ill. July 18, 2008), removed this trip and fall case based on diversity jurisdiction. More than a year later, the plaintiff filed a motion…
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RICO Action Does Not Lie against Governmental Employee Acting within the Scope of His or Her Employment

It is well settled that governmental entities cannot be sued under RICO because they lack the necessary mens rea to commit the predicate crimes on which RICO liability depends. Joseph, Civil RICO: A Definitive Guide § 11 (2d ed. 2000). From this premise, the Ninth Circuit reasoned in Pesnell v. Arsenaut, 2008 U.S. App. LEXIS 13834 (9th Cir. ...
It is well settled that governmental entities cannot be sued under RICO because they lack the necessary mens rea to commit the predicate crimes on which RICO liability depends. Joseph, Civil RICO: A Definitive Guide § 11 (2d ed. 2000).…
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Securities — 10b-5 — One Theory of “Non-Verbal Deceptive Conduct” Rejected

The Second Circuit affirmed Judge Denny Chin’s judgment of acquittal of New York Stock Exchange specialist David Finnerty in United States v. Finnerty, 2008 U.S. App. LEXIS 15296 (2d Cir. July 18, 2008). Finnerty was charged with a criminal violation of § 10(b) and Rule 10b-5 by “interpositioning,” which the Court defined as arbitraging the spread bet ...
The Second Circuit affirmed Judge Denny Chin’s judgment of acquittal of New York Stock Exchange specialist David Finnerty in United States v. Finnerty, 2008 U.S. App. LEXIS 15296 (2d Cir. July 18, 2008). Finnerty was charged with a criminal violation…
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Depositions — Rule 30(e) — Deponent May Change Testimony Substantively, But Failure to Set Forth Reasons for Changes in Errata Sheet Requires Striking of All Changes — Filing of Amended Errata Sheet Barred

The plaintiff’s expert in Betts v. General Motors Corp., 2008 U.S. Dist. LEXIS 54350 (N.D. Miss. July 16, 2008), made material changes to his deposition testimony in his errata sheet but gave no reason for the changes. Held, changes barred and no amended errata sheet permitted: Rule 30(e) of the Federal Rules of Civil Procedure provide ...
The plaintiff’s expert in Betts v. General Motors Corp., 2008 U.S. Dist. LEXIS 54350 (N.D. Miss. July 16, 2008), made material changes to his deposition testimony in his errata sheet but gave no reason for the changes. Held, changes barred…
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Recent Posts

RICO Person vs. Enterprise: Subsidiary in Typical Corporate Structure Does Not Control Parent And Therefore Does Not Conduct Parent’s Affairs

Patently Frivolous RICO Complaint Fails to Confer Federal Question Jurisdiction — Subject to Rule 12(b)(1) for Lack of Subject Matter Jurisdiction

Inherent Power Sanctions — Dismissal — Abuse of Discretion Review Is “More Exacting” When Judge is “Accuser, Fact Finder and Sentencing Judge All in One” — Client Responsible for Her Lawyer’s Discovery Defalcations — No Need for Evidentiary Hearing When Sanctions Based Entirely on an Established Record — Lesser Sanctions Reasonably Determined to be Ineffective Given Record of Repeated Discovery Abuses

Inherent Power Sanction of Dismissal for Fraud on the Court — Fabrication of Evidence and Lying about It to the Court — 2-Part Test for Dismissal Sanction (Eleventh Circuit) — Whether Fraud on Court Was Committed for the Court, Not a Jury

New York Law Firm That Advised Florida Resident for Years Subject to Personal Jurisdiction in Florida, Thus Subject to 28 U.S.C. § 1782 in Florida — Court Cannot Amend Protective Order Following Dismissal of Case Unless the Order Retains Jurisdiction Post-Dismissal — Parties Can Enforce Stipulated Protective Order Post-Dismissal Through Breach of Contract Action

Rule 37(e)/Spoliation — “Intent to Deprive” Determined under the Preponderance of the Evidence Standard — Court May Make Determination Or Allow Jury to Do So — Lesser “Culpable Conduct” Standard of Residential Funding Continues to Apply in Second Circuit Outside ESI Context — Once Judge Has Definitively Ruled on the Record Denying A Requested Instruction, Counsel Is Not Required to Object to the Charge Again at Trial to Preserve Issue for Appeal

Rule 11 (9011) and Inherent Power Sanctions for “Unapologetic [Refusal to Apologize] Defiance” of Court’s Rules and Orders — Advising Client to Take Steps That Same Judge Had Told Lawyer Were Improper in Prior Case — Obstinate Recidivism — Silence upon Withdrawal of Motion As Rule 11 (9011) Violation (Noted But Not Addressed on Appeal)

Rule 37 Sanctions Properly Denied for Failure to Produce Documents That Were Already in the Requester’s Possession And Were Not Relevant to The Principal Issue in the Lawsuit — Experts/Daubert: Exclusion Appropriate Where Opinion Was Predicated on Erroneous Assumptions of Law

Supreme Court: Obtaining a Preliminary Injunction Does Not Render the Plaintiff a “Prevailing Party” Entitled to Attorney’s Fees — Must Win “Enduring Relief” On The Merits From A Judicial Order — Extraneous Events, Like Legislation, That Preserve The Outcome And Moot The Lawsuit Do Not Turn The Plaintiff into A Prevailing Party (Note, However, That A Defendant Need Not Obtain A Favorable Judgment On The Merits In Order To Be A “Prevailing Party”)

Supreme Court: When A Plaintiff Amends The Complaint To Delete The Federal-Law Claims That Enabled Removal To Federal Court, Leaving Only State-Law Claims, The Federal Court Loses Supplemental Jurisdiction, And The Case Must Be Remanded To State Court

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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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