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

$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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Expert Report Even if Sanctionable Is Not Violative of Rule 26(g)

Plaintiff Johnson in Johnson v. Bon-Ton Dep’t Stores, Inc., 2008 U.S. App. LEXIS 10920 (2d Cir. May 21, 2008) appealed from an order denying her motion to strike Defendant Bon-Ton's defenses as a sanction pursuant to Federal Rule of Civil Procedure 26(g) for submitting an allegedly false expert report. Reliance on Rule 26(g) was important to the plaintiff ...
Plaintiff Johnson in Johnson v. Bon-Ton Dep’t Stores, Inc., 2008 U.S. App. LEXIS 10920 (2d Cir. May 21, 2008) appealed from an order denying her motion to strike Defendant Bon-Ton’s defenses as a sanction pursuant to Federal Rule of Civil…
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Liability Insurer Owes Third-Party Claimant Duty Not to Spoliate Evidence by Repairing Insured’s Property

A fire in the insured’s mobile home caused damage to the plaintiff’s equipment that was in the adjacent space, in Coleman Constr., Inc. v. Diamond State Ins. Co., 2008 U.S. Dist. LEXIS 44735 (D. Mont. June 5, 2008). After adjusting its insured’s loss, the insurer promptly paid to have the fire-damaged property restored. The plaintiff, who did not fil ...
A fire in the insured’s mobile home caused damage to the plaintiff’s equipment that was in the adjacent space, in Coleman Constr., Inc. v. Diamond State Ins. Co., 2008 U.S. Dist. LEXIS 44735 (D. Mont. June 5, 2008). After adjusting…
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Demise of “Manifest Disregard” Disregarded

Kashner Davidson Securities Corp. v. Mscisz, 2008 U.S. App. LEXIS 13562 (1st Cir. June 28, 2008) must have been briefed and argued before the Supreme Court’s March 25, 2008 decision in Hall Street Assocs. LLC v. Mattel, Inc., 128 S.Ct. 1396 (2008), given that the Supreme Court jettisoned the “manifest disregard of law” standard of review for arb ...
Kashner Davidson Securities Corp. v. Mscisz, 2008 U.S. App. LEXIS 13562 (1st Cir. June 28, 2008) must have been briefed and argued before the Supreme Court’s March 25, 2008 decision in Hall Street Assocs. LLC v. Mattel, Inc., 128 S.Ct.…
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Interrogatories — How to Count Subparts for Purposes of the Limit of 25 Interrogatories per Party

Rule 33(a)(1) of the Federal Rules of Civil Procedure provides that "[u]nless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts." The question is what constitutes just “one” interrogatory. From Mitchell Co. v. Campus, 2008 U.S. Dist. LEXIS 47505 (S. ...
Rule 33(a)(1) of the Federal Rules of Civil Procedure provides that “[u]nless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts.” The question is…
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Sanctions — Abuse-of-Discretion Review Is Not Toothless

From Judge Sloviter’s dissent (on the issue of sanctions only) in Brubaker Kitchens Inc. v. Brown, 2008 U.S. App. LEXIS 11046 (3d Cir. May 21, 2008): I do not disagree with the majority that our standard of review of the District Court's imposition of sanctions is abuse of discretion. But that standard does not emasculate the courts o ...
From Judge Sloviter’s dissent (on the issue of sanctions only) in Brubaker Kitchens Inc. v. Brown, 2008 U.S. App. LEXIS 11046 (3d Cir. May 21, 2008): I do not disagree with the majority that our standard of review of the…
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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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