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

RICO Class Actions — No Fraud on the Market Presumption

The Second Circuit reversed Judge Weinstein’s certification of a RICO class action brought by purchasers of Light Cigarettes in McLaughlin v. Am. Tobacco Co., 2008 U.S. App. LEXIS 7093 (2d Cir. April 3, 2008): • Reliance on Mail Fraud Predicates Required. In cases such as this one when mail or wire fraud is the predicate ...
The Second Circuit reversed Judge Weinstein’s certification of a RICO class action brought by purchasers of Light Cigarettes in McLaughlin v. Am. Tobacco Co., 2008 U.S. App. LEXIS 7093 (2d Cir. April 3, 2008): • Reliance on Mail Fraud Predicates…
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Lawyer Suspended from Practice in S.D.N.Y. Pending Final Resolution of Disciplinary Charges

Further consequences of the misconduct found in Wolters Kluwer Fin. Servs. Inc. v. Scivantage, 2007 U.S. Dist. LEXIS 88052 (S.D.N.Y. Nov. 29, 2007) (discussed in our post of December 7, 2007): The sanctioned lawyer’s conduct has been found sufficiently egregious to warrant an interim suspension from practice in the Southern District of New York pending fi ...
Further consequences of the misconduct found in Wolters Kluwer Fin. Servs. Inc. v. Scivantage, 2007 U.S. Dist. LEXIS 88052 (S.D.N.Y. Nov. 29, 2007) (discussed in our post of December 7, 2007): The sanctioned lawyer’s conduct has been found sufficiently egregious…
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Judicial Estoppel in the Second Circuit

From Oneida Ltd. v. PBGC, 2008 Bankr. LEXIS 442 (S.D.N.Y. Bankr. Feb. 27, 2008): The doctrine of judicial estoppel serves to protect the "integrity of the judicial process" by "prohibiting parties from deliberately changing positions according to the exigencies of the moment." New Hampshire v. Maine, 532 U.S. 742, 749-50, 121 S. ...
From Oneida Ltd. v. PBGC, 2008 Bankr. LEXIS 442 (S.D.N.Y. Bankr. Feb. 27, 2008): The doctrine of judicial estoppel serves to protect the “integrity of the judicial process” by “prohibiting parties from deliberately changing positions according to the exigencies of…
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Spoliation by Highlighting

From Manning v. State of Washington, 2008 U.S. Dist. LEXIS 28403 (W.D. Wash. April 8, 2008): The Court finds no evidence of spoliation. What appears to be blocked out language on the "kite" where Manning declares a medical emergency on July 6, 2004, simply occurred after highlighting in pink then copying, resulting in a grayed out, less l ...
From Manning v. State of Washington, 2008 U.S. Dist. LEXIS 28403 (W.D. Wash. April 8, 2008): The Court finds no evidence of spoliation. What appears to be blocked out language on the “kite” where Manning declares a medical emergency on…
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Monetary Sanctions and Sovereign Immunity

From Alexander v FBI, 2008 U.S. Dist. LEXIS 27153 (D.D.C. April 3, 2008): ● “Sovereign immunity bars awards of attorneys' fees and costs against the government, except insofar as that immunity has been waived. Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983); Haase v. Sessions, 893 F.2d 370, 373 (D.C. Cir. 1990 ...
From Alexander v FBI, 2008 U.S. Dist. LEXIS 27153 (D.D.C. April 3, 2008): ● “Sovereign immunity bars awards of attorneys’ fees and costs against the government, except insofar as that immunity has been waived. Ruckelshaus v. Sierra Club, 463 U.S.…
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Appealability of Denial of Motion to Stay Litigation Pending Arbitration Brought by Non-Party to the Arbitration Agreement — Circuit Split

The appellants in Carlisle v. Curtix, Mallet-Prevost, Colt & Mosle, LLP, 2008 U.S. App. LEXIS 7511 (6th Cir. April 9, 2008), were co-defendants with a party who had signed an arbitration agreement with the plaintiff. They unsuccessfully moved in the district court to compel arbitration on equitable estoppel grounds. The issue on appeal was whether non-part ...
The appellants in Carlisle v. Curtix, Mallet-Prevost, Colt & Mosle, LLP, 2008 U.S. App. LEXIS 7511 (6th Cir. April 9, 2008), were co-defendants with a party who had signed an arbitration agreement with the plaintiff. They unsuccessfully moved in the…
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Electronic Discovery — Metadata — Timing Is Everything

From Autotech Techs. LP v. AutomationDirect.com, 2008 U.S. Dist. LEXIS 27962 (N.D. Ill. April 2, 2008): It seems a little late to ask for metadata after documents responsive to a request have been produced in both paper and electronic format. Ordinarily, courts will not compel the production of metadata when a party did not make that a ...
From Autotech Techs. LP v. AutomationDirect.com, 2008 U.S. Dist. LEXIS 27962 (N.D. Ill. April 2, 2008): It seems a little late to ask for metadata after documents responsive to a request have been produced in both paper and electronic format.…
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Website Evidence on Valuation

The issue in Tippie v. Patnik, 2008 Ohio 1653; 2008 Ohio App. LEXIS 1429 (Ohio App. April 4, 2008), was the valuation of certain gold and silver items in a divorce context. Much of the case revolved around Ohio Rule 701 and the ability of the owner to testify as to value. The trial judge excluded certain printouts taken from the Internet. The majority affi ...
The issue in Tippie v. Patnik, 2008 Ohio 1653; 2008 Ohio App. LEXIS 1429 (Ohio App. April 4, 2008), was the valuation of certain gold and silver items in a divorce context. Much of the case revolved around Ohio Rule…
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$72 Million Sanctions Award Against FDIC Reversed and Remanded

The Fifth Circuit reversed one of the largest sanctions awards ever imposed in Fed. Deposit Ins. Corp. v. Maxxam, Inc., 2008 U.S. App. LEXIS 7221 (5th Cir. April 3, 2008). The Court reversed outright $56 million of a $72 million sanctions award and vacated and remanded the remainder -- although millions will likely still have to be paid. A key conten ...
The Fifth Circuit reversed one of the largest sanctions awards ever imposed in Fed. Deposit Ins. Corp. v. Maxxam, Inc., 2008 U.S. App. LEXIS 7221 (5th Cir. April 3, 2008). The Court reversed outright $56 million of a $72 million…
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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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