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

Fraudulent Concealment / Fraudulent Misrepresentation Claims Dismissed as Equivalent to Spoliation Claim Prohibited in New York

From IDT Corp. v. Morgan Stanley Dean Witter & Co., 2008 N.Y. Misc. LEXIS 2721 (Sup. Ct. New York County, April 4, 2008): This Court is constrained to follow Ortega v. City of New York, and find that these causes of action for fraud and fraudulent concealment are essentially third party spoliation claims. Spoliation has been defined as " ...
From IDT Corp. v. Morgan Stanley Dean Witter & Co., 2008 N.Y. Misc. LEXIS 2721 (Sup. Ct. New York County, April 4, 2008): This Court is constrained to follow Ortega v. City of New York, and find that these causes…
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Remand Order under 28 U.S.C. § 1447(c) Is “Dispositive” — Magistrate Judge’s Decision Is Subject to De Novo Review by District Court

From Williams v. Beemiller, Inc., 2008 U.S. App. LEXIS 11276 (2d Cir. May 28, 2008): The question of whether a magistrate judge may order a case remanded to state court under § 1447(c) is one of first impression in this Circuit. All three of our sister circuits that have considered the matter have concluded that such orders are disposit ...
From Williams v. Beemiller, Inc., 2008 U.S. App. LEXIS 11276 (2d Cir. May 28, 2008): The question of whether a magistrate judge may order a case remanded to state court under § 1447(c) is one of first impression in this…
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Why Sur-Replies Are Disfavored — Good Quote

From Wood v. B.C. Daniels, Inc., 2008 U.S. Dist. LEXIS 40955 (S.D. Ala. May 21, 2008): [T]he filing of sur-replies is discouraged because of the inefficiencies inherent in an interminable thrust-and-parry debate between the parties.... ...
From Wood v. B.C. Daniels, Inc., 2008 U.S. Dist. LEXIS 40955 (S.D. Ala. May 21, 2008): [T]he filing of sur-replies is discouraged because of the inefficiencies inherent in an interminable thrust-and-parry debate between the parties….
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Securities — No Private Right of Action for Money Damages under § 13(d) — Damages Remedy Provided by § 18(a)

From Motient Corp. v. Dondero, 2008 U.S. App. LEXIS 11380 (5th Cir. Mary 27, 2008): No other Circuit has found a private right of action for money damages under Section 13(d) [15 U.S.C. § 78m(d)]. The Second Circuit held that Section 13(d) does not provide a damages remedy to issuers. Hallwood Realty Partners, L.P. v. Gotham Partners ...
From Motient Corp. v. Dondero, 2008 U.S. App. LEXIS 11380 (5th Cir. Mary 27, 2008): No other Circuit has found a private right of action for money damages under Section 13(d) [15 U.S.C. § 78m(d)]. The Second Circuit held that…
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Legal Malpractice — Continuous Representation Doctrine Not Satisfied by Corporate Transaction and Subsequent Litigation Over that Transaction — Also, Impact of Representation by Other Counsel

From Pandozy v. Robert J. Gumenick, P.C., 2008 U.S. Dist. LEXIS 41440 (S.D.N.Y. May 23, 2008): [B]ecause the initial representation with respect to the apartment sale involved a different subject matter than the appeal of the specific performance action, the continuous representation doctrine is not applicable. This conclusion is support ...
From Pandozy v. Robert J. Gumenick, P.C., 2008 U.S. Dist. LEXIS 41440 (S.D.N.Y. May 23, 2008): [B]ecause the initial representation with respect to the apartment sale involved a different subject matter than the appeal of the specific performance action, the…
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Experts, Privilege and Discovery — Consulting Expert Who Becomes Testifying Expert

The statistical expert (Dr. Siskin) retained by the defendant Employees Committed for Justice v. Eastman Kodak Co., 2008 U.S. Dist. LEXIS 39694 (W.D.N.Y. May 15, 2008) originally performed a study in 1999 that the defendant wanted to use in this employment discrimination case, so he was designated a fact witness. He also performed a study in 2003-04 at the b ...
The statistical expert (Dr. Siskin) retained by the defendant Employees Committed for Justice v. Eastman Kodak Co., 2008 U.S. Dist. LEXIS 39694 (W.D.N.Y. May 15, 2008) originally performed a study in 1999 that the defendant wanted to use in this…
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Crawford Challenge to 18 U.S.C. § 3505 and Fed.R.Evid. 803(6) Rejected

From United States v. Qualls, 2008 U.S. Dist. LEXIS 40375 (E.D.N.Y. May 19, 2008): Defendant specifically raises a Crawford challenge to the proposed method of authenticating the IG records--by certification of an IG employee pursuant to 18 U.S.C. § 3505. This statute permits the government to authenticate foreign business recor ...
From United States v. Qualls, 2008 U.S. Dist. LEXIS 40375 (E.D.N.Y. May 19, 2008): Defendant specifically raises a Crawford challenge to the proposed method of authenticating the IG records–by certification of an IG employee pursuant to 18 U.S.C. § 3505.…
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Roger Clemens v. Brian McNamee — Standing to Assert Conflict on the Part of Opposing Counsel

In Roger Clemens’ defamation action against his former trainer, Brian McNamee, Clemens v. McNamee, 2008 U.S. Dist. LEXIS 36916 (S.D. Tex. May 6, 2008), McNamee moved to disqualify Clemens’ lawyer, Rusty Hardin, on the theory that Hardin's prior joint representation of both Clemens and Andy Pettitte created a conflict of interest requiring the disqualific ...
In Roger Clemens’ defamation action against his former trainer, Brian McNamee, Clemens v. McNamee, 2008 U.S. Dist. LEXIS 36916 (S.D. Tex. May 6, 2008), McNamee moved to disqualify Clemens’ lawyer, Rusty Hardin, on the theory that Hardin’s prior joint representation…
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Electronic Discovery — Overly Broad Production Request — Good Quote — Tenth Circuit

From Regan-Touhy v. Walgreen Co., 2008 U.S. App. LEXIS 10704 (10th Cir. May 20, 2008): [T]he burdens and costs associated with electronic discovery, such as those seeking "all email," are by now well known, and district courts are properly encouraged to weigh the expected benefits and burdens posed by particular discovery requests (electr ...
From Regan-Touhy v. Walgreen Co., 2008 U.S. App. LEXIS 10704 (10th Cir. May 20, 2008): [T]he burdens and costs associated with electronic discovery, such as those seeking “all email,” are by now well known, and district courts are properly encouraged…
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Draft Amendment to Fed. R. Civ. P. 26(b) — Expert Witness Rule — Issue to be Considered by Standing Committee in June

Download associated file: Draft Amendments to Expert Witness Rule.pdf  Attached is the March 2008 draft of the proposal to amend the Expert Witness Rule, Fed. R. Civ. P. 26(b). The draft would protect against disclosure of draft reports and most communications between co ...
Download associated file: Draft Amendments to Expert Witness Rule.pdf  Attached is the March 2008 draft of the proposal to amend the Expert Witness Rule, Fed. R. Civ. P. 26(b). The draft would protect against disclosure of draft reports and…
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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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