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

Binding Effect of 30(b)(6) Deposition Testimony — Admission vs. Judicial Admission — Impact on Summary Judgment vs. at Trial

State Farm’s 30(b)(6) witness in State Farm Mut. Auto. Ins. Co. v. New Horizon, Inc., 2008 U.S. Dist. LEXIS 37571 (E.D. Pa. May 7, 2008), Mr. Bowles, did nothing to prepare for his testimony other than meet with counsel. Accordingly, when questioned about the basis of certain claims asserted by State Farm — one of the purposes of the deposition — “c ...
State Farm’s 30(b)(6) witness in State Farm Mut. Auto. Ins. Co. v. New Horizon, Inc., 2008 U.S. Dist. LEXIS 37571 (E.D. Pa. May 7, 2008), Mr. Bowles, did nothing to prepare for his testimony other than meet with counsel. Accordingly,…
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Sanctions — Experts — Misstatement of Fact in Expert Report as Potentially Outside Rule 11

Plaintiff’s expert in Vidalia Dock & Storage Co. v. Donald Engine Serv., 2008 U.S. Dist. LEXIS 32026 (W.D. La. April 17, 2008), made a misstatement of fact, asserting that the plaintiff owned a vessel (M/V CARLA J) that was owned by someone else. Plaintiff’s counsel and plaintiff were evidently aware of the error but did not correct it. The Court questi ...
Plaintiff’s expert in Vidalia Dock & Storage Co. v. Donald Engine Serv., 2008 U.S. Dist. LEXIS 32026 (W.D. La. April 17, 2008), made a misstatement of fact, asserting that the plaintiff owned a vessel (M/V CARLA J) that was owned…
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Securities — SEC May Not Seek Monetary Penalties for Aiding and Abetting Violations of the Investment Advisers Act

In SEC v. Bolla, 2008 U.S. Dist. LEXIS 36401 (D.D.C. May 6, 2008), United States District Judge Colleen Kollar-Kotelly held that Section 209(e) of the Advisers Act, 15 U.S.C. § 80b-9(e), does not authorize the SEC to seek, and does not confer jurisdiction on the Court to impose, monetary penalties for aiding and abetting violations of the Advisers Act. Her ...
In SEC v. Bolla, 2008 U.S. Dist. LEXIS 36401 (D.D.C. May 6, 2008), United States District Judge Colleen Kollar-Kotelly held that Section 209(e) of the Advisers Act, 15 U.S.C. § 80b-9(e), does not authorize the SEC to seek, and does…
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Sale of Business as Spoliation

After the plaintiff filed suit in Centimark Corp. v. Pegnato & Pegnato Roof Mgmt., Inc., 2008 U.S. Dist. LEXIS 37057 (W.D. Pa. May 5, 2008), the corporate defendant filed for bankruptcy and the individual defendants arranged for the sale of all of the corporation's assets (a sale that was approved by the bankruptcy court). No provision was made in the contra ...
After the plaintiff filed suit in Centimark Corp. v. Pegnato & Pegnato Roof Mgmt., Inc., 2008 U.S. Dist. LEXIS 37057 (W.D. Pa. May 5, 2008), the corporate defendant filed for bankruptcy and the individual defendants arranged for the sale of…
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Expert Report and Evidence Checklist

From Brawhaw v. Mariner Health Care, Inc., 2008 U.S. Dist. LEXIS 37884 (N.D. Miss. May 8, 2008): Fed. R. Civ. P. 26(a)(2) 1. Did the expert turn in an expert report? 2. Did the expert report contain: (a) a complete statement of all opinions? (b) the basis and reasons t ...
From Brawhaw v. Mariner Health Care, Inc., 2008 U.S. Dist. LEXIS 37884 (N.D. Miss. May 8, 2008): Fed. R. Civ. P. 26(a)(2) 1. Did the expert turn in an expert report? 2. Did the expert report contain: (a) a complete…
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Rule 59 Motion for a New Trial — Criteria — Third Circuit

From Smith v. Ciritella, 2008 U.S. Dist. LEXIS 36122 (D. Del. May 5, 2008): Federal Rule of Civil Procedure 59(a) provides that: [a] new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new tria ...
From Smith v. Ciritella, 2008 U.S. Dist. LEXIS 36122 (D. Del. May 5, 2008): Federal Rule of Civil Procedure 59(a) provides that: [a] new trial may be granted to all or any of the parties and on all or part…
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Securities — Sanctions — Waiver of PSLRA’s Mandatory Sanctions Review Enforced

The Private Securities Litigation Reform Act of 1995 re-introduced mandatory Rule 11 sanctions (if a violation is found), just two years after the 1993 amendment to Rule 11 made sanctions discretionary. To enforce this mandate, the statute also dictates that the Court must undertake a Rule 11 review at the end of the case. 15 U.S.C. § 78u-4(c)(1) provides that, " ...
The Private Securities Litigation Reform Act of 1995 re-introduced mandatory Rule 11 sanctions (if a violation is found), just two years after the 1993 amendment to Rule 11 made sanctions discretionary. To enforce this mandate, the statute also dictates that…
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LLC Treated Like Corporation, Not Partnership, for Privilege Purposes — Case Split

A former principal in an LLC (Montgomery) sued the entity (eTreppid) and another principal (Treppid), inter alia, for misappropriation of intellectual property in Montgomery v. eTreppid Techs., 2008 U.S. Dist. LEXIS 35561 (D. Nev. April 18, 2008). In seeking access to attorney-client privileged communications between eTreppid and its counsel, Montgomery clai ...
A former principal in an LLC (Montgomery) sued the entity (eTreppid) and another principal (Treppid), inter alia, for misappropriation of intellectual property in Montgomery v. eTreppid Techs., 2008 U.S. Dist. LEXIS 35561 (D. Nev. April 18, 2008). In seeking access…
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RICO — Governmental Entity Does Not Suffer Injury to Business or Property Simply Because Employee Was Bribed

The crux of the complaint in Township of Marlboro v. Scanapieco, 2008 U.S. Dist. LEXIS 33386 (D.N.J. April 23, 2008), was bribery of municipal employees in exchange for land use approvals necessary for the construction of certain land developments. The injury allegations, as summarized by the Court: The Amended Complaint states that, "[ ...
The crux of the complaint in Township of Marlboro v. Scanapieco, 2008 U.S. Dist. LEXIS 33386 (D.N.J. April 23, 2008), was bribery of municipal employees in exchange for land use approvals necessary for the construction of certain land developments. The…
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Is Denial of a Motion to Dismiss based on Arbitration Clause Appealable as Tantamount to Denial of a Motion to Compel Arbitration? Circuit Split

The defendant/appellant in Wabtec Corp. v. Faiveley Transortation Malmo AB, 2008 U.S. App. LEXIS 9518 (2d Cir. May 2, 2008), unsuccessfully moved to dismiss based on the existence of an arbitration clause in its contract with the plaintiff/appellee, then filed an appeal in the Second Circuit. The appellee moved to dismiss the appeal for lack of appellate jur ...
The defendant/appellant in Wabtec Corp. v. Faiveley Transortation Malmo AB, 2008 U.S. App. LEXIS 9518 (2d Cir. May 2, 2008), unsuccessfully moved to dismiss based on the existence of an arbitration clause in its contract with the plaintiff/appellee, then filed…
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Recent Posts

Spoliation/Sanctions: “A Party Does Not Spoliate Evidence When, Without Notice Of The Evidence’s Potential Relevance, It Destroys The Evidence According To Its Policy Or In The Normal Course Of Its Business” (Good Quote)

RICO: Fraud on Government Entities Causing Plaintiffs to Pay More for Inmate Calls Actionable on Bridge v. Phoenix Bond Analysis — Fact That Governments Had Separate Injuries As Part of the Scheme (from Reduced Commissions) Irrelevant — Plaintiffs’ Injuries Not Derivative of Governments’ — The Fraud on the Governments Was Not Too Distinct From Plaintiffs’ Injuries But Rather Necessary to Injure Plaintiffs — No Risk of Duplicative Recoveries and No Plaintiff Better Situated to Sue for Plaintiffs’ Injuries

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

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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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