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

Website Evidence — Posting Self-Laudatory Article and Other Hearsay on Website as Adoptive Admission

The plaintiff physician sued the defendant lawyer for defamation in Momah v. Bharti, 2008 Wash. App. LEXIS 940 (Wash. App. April 28, 2008). Some of the allegedly defamatory statements were contained in newspaper articles that quoted and discussed the defendant and which the defendant posted on his website. Among other holdings (including that the intended u ...
The plaintiff physician sued the defendant lawyer for defamation in Momah v. Bharti, 2008 Wash. App. LEXIS 940 (Wash. App. April 28, 2008). Some of the allegedly defamatory statements were contained in newspaper articles that quoted and discussed the defendant…
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Securities — Issue of First Impression — Proportionate Liability Regime of PSLRA Does Not Affect Scope of Control Person Liability

The issue in LaPerriere v. Vesta Ins. Group, 2008 U.S. App. LEXIS 9300 (11th Cir. April 30, 2008), an interlocutory appeal, was whether or to what extent the proportionate liability scheme of regime of the Private Securities Litigation Reform Act (§ 21(D)(f) of the Securities Exchange Act of 1934, 15 U.S.C. § 78u-4(f)), amends section 20(a) of the Act, und ...
The issue in LaPerriere v. Vesta Ins. Group, 2008 U.S. App. LEXIS 9300 (11th Cir. April 30, 2008), an interlocutory appeal, was whether or to what extent the proportionate liability scheme of regime of the Private Securities Litigation Reform Act…
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Primary Jurisdiction vs. Administrative Exhaustion — Ninth Circuit

The question in Clark v. Time Warner Cable, 2008 U.S. App. LEXIS 9306 (9th Cir. 2008), was whether the doctrine of primary jurisdiction permits a district court to refer a claim raising a novel and technical question of federal telecommunications policy to the Federal Communications Commission for its consideration in the first instance. The case contains a ...
The question in Clark v. Time Warner Cable, 2008 U.S. App. LEXIS 9306 (9th Cir. 2008), was whether the doctrine of primary jurisdiction permits a district court to refer a claim raising a novel and technical question of federal telecommunications…
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“Circuit Law” Dubious Concept as Applied to Subject Matter Jurisdiction

The lawsuit at issue in In re Refco, Inc. Secs. Litig., 2008 U.S. Dist. LEXIS 32798 S.D.N.Y. April 21, 2008) was commenced in Cook County Circuit Court, removed to the Northern District of Illinois and transferred to the Southern District of New York as part of the Refco multi-district litigation. The Seventh and Second Circuit have different views as to th ...
The lawsuit at issue in In re Refco, Inc. Secs. Litig., 2008 U.S. Dist. LEXIS 32798 S.D.N.Y. April 21, 2008) was commenced in Cook County Circuit Court, removed to the Northern District of Illinois and transferred to the Southern District…
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Email Admissibility — Authentication vs.Hearsay

The defendant in State v. Sherrills, 2008 Ohio 1950, 2008 Ohio App. LEXIS 1662 (Ohio App. April 24, 2008), was convicted of unauthorized use of a computer — belonging to her employer, a bank — for emailing to her personal email account confidential financial information of the bank’s customers. The prosecution established that the defendant sent the e ...
The defendant in State v. Sherrills, 2008 Ohio 1950, 2008 Ohio App. LEXIS 1662 (Ohio App. April 24, 2008), was convicted of unauthorized use of a computer — belonging to her employer, a bank — for emailing to her personal…
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RICO — In Pari Delicto As a Cognizable Defense to a Civil RICO Claim

From Rogers v. McDorman, 2008 U.S. App. LEXIS 5748 (5th Cir. March 18, 2008): Congressional Silence No Bar. “Directors argu[e] ... that interpretations of RICO begin and end with the statute's text, which does not mention the defense; and that, as civil RICO liability turns on committing criminal RICO acts, principles of cri ...
From Rogers v. McDorman, 2008 U.S. App. LEXIS 5748 (5th Cir. March 18, 2008): Congressional Silence No Bar. “Directors argu[e] … that interpretations of RICO begin and end with the statute’s text, which does not mention the defense; and that,…
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Weight to be Accorded Securities and Exchange Commission No-Action Letter

From Apache Corp. v. N.Y. City Employees’ Retirement Sys., 2008 U.S. Dist. LEXIS 32955 (S.D. Tex. April 22, 2008): The proper weight to accord an SEC no-action letter is an issue of first impression in the Fifth Circuit. The Second Circuit, however, noted that no-action letters are interpretive be-cause they do not impose or fix a leg ...
From Apache Corp. v. N.Y. City Employees’ Retirement Sys., 2008 U.S. Dist. LEXIS 32955 (S.D. Tex. April 22, 2008): The proper weight to accord an SEC no-action letter is an issue of first impression in the Fifth Circuit. The Second…
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Rule 11 Safe Harbor — Effort to Stay or Dismiss Sufficient to Preclude Sanctions Even Though False Statement Not Withdrawn

The plaintiff in Brabahm v. O’Reilly Auto., Inc., 2008 U.S. App. LEXIS 8230 (5th Cir. April 16, 2008) brought a malicious prosecution and abuse of process claim alleging that the prior criminal proceedings that the defendant had instigated had been dismissed with prejudice. That was incorrect; they had simply been rendered “inactive” after the parties ...
The plaintiff in Brabahm v. O’Reilly Auto., Inc., 2008 U.S. App. LEXIS 8230 (5th Cir. April 16, 2008) brought a malicious prosecution and abuse of process claim alleging that the prior criminal proceedings that the defendant had instigated had been…
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Party Who Kept Copy Cannot Prevail on Spoliation Claim Against Opponent Who Destroyed Original

From Bell v. Rotwein, 535 F.Supp.2d 137 (D.D.C. 2008): Defendant finally alleges that plaintiff has failed to state a claim for either spoliation or conversion.... Both of these claims are rooted in plaintiff's allegation that defendant took possession of and destroyed the original assignment document. Both claims fail because plaintiff ...
From Bell v. Rotwein, 535 F.Supp.2d 137 (D.D.C. 2008): Defendant finally alleges that plaintiff has failed to state a claim for either spoliation or conversion…. Both of these claims are rooted in plaintiff’s allegation that defendant took possession of and…
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RICO — At Least Two Predicate Acts Must Occur within Four-Year Limitations Period

From CSX Transportation, Inc. v. Gilkison, 2008 U.S. Dist. LEXIS 26890 (N.D. W.Va. April 1, 2008): “The fact that one case [predicate act] was filed within the limitations period ... does not change this result. To state a RICO conspiracy claim, a plaintiff must show a ‘pattern of racketeering activity.’ 18 U.S.C. § 1961(5). A ...
From CSX Transportation, Inc. v. Gilkison, 2008 U.S. Dist. LEXIS 26890 (N.D. W.Va. April 1, 2008): “The fact that one case [predicate act] was filed within the limitations period … does not change this result. To state a RICO conspiracy…
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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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