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

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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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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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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