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

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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Groundless Verification of Interrogatory Answers Not Sanctionable under Rule 26(g)

The individual who verified plaintiff State Farm’s interrogatory answers in State Farm Mut. Auto. Ins. Co. v. New Horizon, Inc., 2008 U.S. Dist. LEXIS 37571 (E.D. Pa. May 7, 2008), did little or nothing to insure their accuracy. The defendants moved for sanctions under Rule 26(g), which provides that “[e]very disclosure under Rule 26(a)(1) or (a)(3) and ...
The individual who verified plaintiff State Farm’s interrogatory answers in State Farm Mut. Auto. Ins. Co. v. New Horizon, Inc., 2008 U.S. Dist. LEXIS 37571 (E.D. Pa. May 7, 2008), did little or nothing to insure their accuracy. The defendants…
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Class Actions — American Pipe Tolling Applies to Individual Action Filed Pending Class Certification — Circuit Split

From Phillips v. E.I. Dupont de Nemours & Co., 521 F.3d 1028 (9th Cir. 2008): The Sixth Circuit... [has] held that the purposes of class action tolling under American Pipe "are not furthered when plaintiffs file independent actions before decision on the issue of class certification." Wyser-Pratte Mgmt. Co., Inc. v. Telxon,
From Phillips v. E.I. Dupont de Nemours & Co., 521 F.3d 1028 (9th Cir. 2008): The Sixth Circuit… [has] held that the purposes of class action tolling under American Pipe “are not furthered when plaintiffs file independent actions before decision…
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Class Action Fairness Act — Securities Class Action Pursued as a State Consumer Fraud Claim Is Removable under CAFA

The Second Circuit held in Estate of Pew v. Cardarelli, 2008 U.S. App. LEXIS 10269 (2d Cir. May 13, 2008), that federal jurisdiction exists under CAFA (28 U.S.C. §§ 1332(d)(9) (C) and 1453(d)(3)) over a class action alleging that officers of an issuer — abetted by the issuer's auditor — failed to disclose, while marketing debt certificates, that the is ...
The Second Circuit held in Estate of Pew v. Cardarelli, 2008 U.S. App. LEXIS 10269 (2d Cir. May 13, 2008), that federal jurisdiction exists under CAFA (28 U.S.C. §§ 1332(d)(9) (C) and 1453(d)(3)) over a class action alleging that officers…
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Securities — $1.2 Million Civil Penalty Imposed Under § 20(d) of the Securities Act and § 21(d) of the Securities Exchange Act — Factors Affecting Quantum

An individual defendant in SEC v. AmeriFirst Funding, Inc., 2008 U.S. Dist. LEXIS 36782 (N.D. Tex. May 5, 2008) committed violations involving fraud or deceit under both the Securities Act and the Securities Exchange Act. The SEC requested that the final judgment against him (Bruteyn) include third-tier civil penalties under § 20(d) of the Securities Act an ...
An individual defendant in SEC v. AmeriFirst Funding, Inc., 2008 U.S. Dist. LEXIS 36782 (N.D. Tex. May 5, 2008) committed violations involving fraud or deceit under both the Securities Act and the Securities Exchange Act. The SEC requested that the…
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Witness Intimidation as Spoliation

From United States v. Manns, 2008 U.S. App. LEXIS 10016 (6th Cir. May 5, 2008) (unpublished), in which the defendant threatened the lives of two witnesses in statements — not to the witnesses — but to his cellmate: We find unconvincing Manns's arguments that his alleged statement to Steven Tackett does not constitute admissible spoli ...
From United States v. Manns, 2008 U.S. App. LEXIS 10016 (6th Cir. May 5, 2008) (unpublished), in which the defendant threatened the lives of two witnesses in statements — not to the witnesses — but to his cellmate: We find…
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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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