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

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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Privilege — Waiver by Use of Company Email System

Held, an employee’s use of a corporate computer to transmit or receive privileged communications waives the privilege when the employee is on notice that the employer reserves the right to review the communications. United States v. Etkin, 2008 U.S. Dist. LEXIS 12834 (S.D.N.Y. Feb. 19, 2008) (employees do not have a reasonable expectation of privacy in th ...
Held, an employee’s use of a corporate computer to transmit or receive privileged communications waives the privilege when the employee is on notice that the employer reserves the right to review the communications. United States v. Etkin, 2008 U.S. Dist.…
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Sanctions — Refusal to Accept That You’ve Lost

From CFTC v. Lake Shore Asset Management Ltd., 2008 U.S. Dist. LEXIS 26502 (N.D. Ill. April 1, 2008): • “The problems in this case fall into two categories: (1) overly aggressive advocacy; and (2) the failure to acknowledge prior adverse rulings when allegedly raising these previously-rejected arguments to preserve the record.” ...
From CFTC v. Lake Shore Asset Management Ltd., 2008 U.S. Dist. LEXIS 26502 (N.D. Ill. April 1, 2008): • “The problems in this case fall into two categories: (1) overly aggressive advocacy; and (2) the failure to acknowledge prior adverse…
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Is There a Right to Depose an Expert Who Is Designated Non-Testifying After Initially Having Been Designated Testifying?

An opponent has the right to depose a testifying expert (after the report is issued) under Fed.R.Civ.P. 26(b)(4)(A) but may depose a non-testifying expert only in “exceptional circumstances” under Rule 26(b)(4)(B). What if a testifying expert is later re-designated a non-testifying expert? What test is used to determine whether the re-classified witness may be ...
An opponent has the right to depose a testifying expert (after the report is issued) under Fed.R.Civ.P. 26(b)(4)(A) but may depose a non-testifying expert only in “exceptional circumstances” under Rule 26(b)(4)(B). What if a testifying expert is later re-designated a…
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Cause of Action for Intentional, but Not Negligent, Spoliation Recognized in U.S. Virgin Islands

The United States District Court for the District of the Virgin Islands held in Mendez v. Hovenza, LLC, 2008 U.S. Dist. LEXIS 25127 (D. V.I. March 24, 2008), that: (1) “Because the common law, as generally understood and applied in the United States, does not provide for a tort of negligent spoliation against a first-party defendant, the Court predicts th ...
The United States District Court for the District of the Virgin Islands held in Mendez v. Hovenza, LLC, 2008 U.S. Dist. LEXIS 25127 (D. V.I. March 24, 2008), that: (1) “Because the common law, as generally understood and applied in…
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What Do You Own? McVeigh’s Lawyer Doesn’t Own Files — Can’t Donate Them and Deduct Value

Stephen Jones, Timothy McVeigh’s lead defense counsel in the Oklahoma City Bombing case, donated to the University of Texas voluminous materials that he received from the Government during the preparation of McVeigh's defense. The question in Jones v. Commissioner, 129 T.C. 146, 2007 U.S. Tax Ct. LEXIS 34 (Tax Ct. Nov. 1, 2007), was whether Jones and his w ...
Stephen Jones, Timothy McVeigh’s lead defense counsel in the Oklahoma City Bombing case, donated to the University of Texas voluminous materials that he received from the Government during the preparation of McVeigh’s defense. The question in Jones v. Commissioner, 129…
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Blog Entries Admissible on Summary Judgment to Show State of Mind

The University of Kansas (“KU”), in University of Kansas v. Sinks, 2008 U.S. Dist. LEXIS 23765 (D. Kan. Mar. 19, 2008), was suing to prevent unauthorized sale of KU apparel. In support of its motion for summary judgment, the plaintiff offered what the court described as “weblog entries ... certain internet postings to the Lawrence Journal-World ...
The University of Kansas (“KU”), in University of Kansas v. Sinks, 2008 U.S. Dist. LEXIS 23765 (D. Kan. Mar. 19, 2008), was suing to prevent unauthorized sale of KU apparel. In support of its motion for summary judgment, the plaintiff…
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Affidavits/Declarations on Summary Judgment — Requirement of Personal Knowledge

How does a CEO know anything? They are not in the field; they are not on the floor; they are not compiling the numbers; but they are required to be intimately acquainted with sales, operations and finance. Does that mean they lack firsthand knowledge sufficient to permit them to testify? Or is there a sphere of knowledge that CEOs — and other corporate executiv ...
How does a CEO know anything? They are not in the field; they are not on the floor; they are not compiling the numbers; but they are required to be intimately acquainted with sales, operations and finance. Does that mean…
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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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