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 Joinder — Spoliation — Conversion as Potential Substitute for Spoliation Claim in New York

The plaintiffs in Durow v. General Motors Corp., 2008 U.S. Dist. LEXIS 31965 (W.D.N.Y. April 17, 2008), sued GM and a New York GM dealer in state court for injuries suffered when the driver side airbag deployed for no reason while one of the plaintiffs was driving. The defendants removed claiming that the dealer was fraudulently joined because the only clai ...
The plaintiffs in Durow v. General Motors Corp., 2008 U.S. Dist. LEXIS 31965 (W.D.N.Y. April 17, 2008), sued GM and a New York GM dealer in state court for injuries suffered when the driver side airbag deployed for no reason…
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RICO — Intracorporate Conspiracy Doctrine Viable under § 1962(d) Even Though Not Viable under § 1962(c) — Circuit Split

From United States v. Gwinn, 2008 U.S. Dist. LEXIS 26361 (S.D. W.Va. Mar. 31, 2008) (a False Claims Act case): • "Under the intra-corporate conspiracy doctrine, ... a corporation cannot conspire with its own officers while the officers are acting in their official capacity." [Quotations, brackets and citation omitted]. • ...
From United States v. Gwinn, 2008 U.S. Dist. LEXIS 26361 (S.D. W.Va. Mar. 31, 2008) (a False Claims Act case): • “Under the intra-corporate conspiracy doctrine, … a corporation cannot conspire with its own officers while the officers are acting…
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Excess Carrier Barred from Asserting Malpractice Claim Against Insured’s Counsel Who Was Selected by Primary Carrier

From Federal Ins. Co. v. No. Am. Specialty Ins. Co., 47 A.D. 3d 52,m 847 N.Y.S.2d 847 (1st Dep’t 2007): "New York courts impose a strict privity requirement to claims of legal malpractice; an attorney is not liable to a third party for negligence in performing services on behalf of his client" ***. Strict adherence to the rule ...
From Federal Ins. Co. v. No. Am. Specialty Ins. Co., 47 A.D. 3d 52,m 847 N.Y.S.2d 847 (1st Dep’t 2007): “New York courts impose a strict privity requirement to claims of legal malpractice; an attorney is not liable to a…
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RICO — Rendering of Routine Legal Services ≠ Operation or Management

From Nastro v. D’Onofrio, 2008 U.S. Dist. LEXIS 26323 (D. Conn. March 31, 2008): To maintain a civil RICO claim, a plaintiff must show that a defendant "conduct[ed] or participate[d], directly or indirectly, in the conduct of [the RICO] enterprise's affairs . . . ." 18 U.S.C. § 1962(c). "[T]o conduct or participate, directly or indirec ...
From Nastro v. D’Onofrio, 2008 U.S. Dist. LEXIS 26323 (D. Conn. March 31, 2008): To maintain a civil RICO claim, a plaintiff must show that a defendant “conduct[ed] or participate[d], directly or indirectly, in the conduct of [the RICO] enterprise’s…
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Email Exchange Satisfies Statute of Frauds

Typewritten signatures at the end of emails comprising an offer and an acceptance satisfy the statute of frauds in New York, under the First Department’s decision in Stevens v. Publicis, S.A., 2008 N.Y. Slip Op. 2880, 2008 N.Y. App. Div. 2834 (1st Dept. April 1, 2008). Here is the exchange of emails with the Court’s commentary: "Thu ...
Typewritten signatures at the end of emails comprising an offer and an acceptance satisfy the statute of frauds in New York, under the First Department’s decision in Stevens v. Publicis, S.A., 2008 N.Y. Slip Op. 2880, 2008 N.Y. App. Div.…
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Rule 26(a) vs. Rule 26(b) — Witness First Identified in Pretrial Order Barred from Testifying at Trial

The defendant in Elion v. Jackson, 2008 U.S. Dist. LEXIS 27520 (D.D.C. April 7, 2008), sought to exclude from trial the testimony of a witness (Higgins) whose identity was first disclosed in the Joint Pretrial Statement, just two weeks before the originally scheduled trial date and well after discovery had closed. The plaintiff argued that the testimony of t ...
The defendant in Elion v. Jackson, 2008 U.S. Dist. LEXIS 27520 (D.D.C. April 7, 2008), sought to exclude from trial the testimony of a witness (Higgins) whose identity was first disclosed in the Joint Pretrial Statement, just two weeks before…
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Tort of Fraudulent Concealment as Cause of Action for Spoliation in New Jersey

From Allia v. Target Corp., 2008 U.S. Dist. LEXIS 29591 (D.N.J. April 10, 2008): Plaintiff's spoliation of evidence claim must also be dismissed because New Jersey does not recognize spoliation of evidence as an intentional tort. Rosenblit v. Zimmerman, 766 A.2d 749, 757 (N.J. 2001) (stating that spoliation of evidence is not ...
From Allia v. Target Corp., 2008 U.S. Dist. LEXIS 29591 (D.N.J. April 10, 2008): Plaintiff’s spoliation of evidence claim must also be dismissed because New Jersey does not recognize spoliation of evidence as an intentional tort. Rosenblit v. Zimmerman, 766…
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Arbitration: Motion for Summary Judgment Waives Arbitration Right Even If, in the Alternative, It Seeks to Compel Arbitration

From Khan v. Parsons Global Servs., Ltd., 2008 U.S. App. LEXIS 7756 (D.C. Cir. April 11, 2008): The court has not previously held that a motion for summary judgment, standing alone, suffices to constitute a waiver of colorably arbitrable claims.... Other circuit courts of appeals have been more direct in assessing the relationship between ...
From Khan v. Parsons Global Servs., Ltd., 2008 U.S. App. LEXIS 7756 (D.C. Cir. April 11, 2008): The court has not previously held that a motion for summary judgment, standing alone, suffices to constitute a waiver of colorably arbitrable claims….…
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Sanctions — Uncivil Court Papers Ordered Rewritten

The pro se plaintiff in Anderson v. Wade, 2008 U.S. Dist. LEXIS 28537 (W.D.N.C. March 27, 2008) evidently thought that brief-writing was supposed to consist of insult piled on insult. An example: The defendant's lawyers initiated their reprehensible ploy to corrupt, subvert and grossly misrepresent the power court's ruling, taint ...
The pro se plaintiff in Anderson v. Wade, 2008 U.S. Dist. LEXIS 28537 (W.D.N.C. March 27, 2008) evidently thought that brief-writing was supposed to consist of insult piled on insult. An example: The defendant’s lawyers initiated their reprehensible ploy to…
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Email Admissibility on Summary Judgment — Authentication vs. Authenticatability

From Kenawell v. Dubois Business College, Inc., 2008 U.S. Dist. LEXIS 26730 (W.D. Pa. March 20, 2008): • “Rule 803(6) of the Federal Rules of Evidence states that records that are kept in the course of regularly conducted business activity, not made for purposes of litigation, not indicating a lack of trustworthiness, and are made ...
From Kenawell v. Dubois Business College, Inc., 2008 U.S. Dist. LEXIS 26730 (W.D. Pa. March 20, 2008): • “Rule 803(6) of the Federal Rules of Evidence states that records that are kept in the course of regularly conducted business activity,…
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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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