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

Rule 11 Safe Harbor — Effort to Stay or Dismiss Sufficient to Preclude Sanctions Even Though False Statement Not Withdrawn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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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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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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