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

Post-Judgment Sanctions — Necessity of Separate Notice of Appeal

From Keck Garrett & Assocs., Inc. v. Nextel Commc’ns, Inc., 2008 U.S. App. LEXIS 3649 (7th Cir. Feb. 21, 2008): To the extent that Keck Garrett is attempting to appeal this matter, we are without jurisdiction. Keck Garrett filed a motion for sanctions in the district court, but, insofar as the record before us indicates, the district co ...
From Keck Garrett & Assocs., Inc. v. Nextel Commc’ns, Inc., 2008 U.S. App. LEXIS 3649 (7th Cir. Feb. 21, 2008): To the extent that Keck Garrett is attempting to appeal this matter, we are without jurisdiction. Keck Garrett filed a…
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Expert Evidence Admissible at Daubert Hearing Though Excluded from Trial

Under Federal Rules of Civil Procedure 26(a)(2)(B) and 37(c), the failure of a retained expert to submit the requisite, detailed report in a timely fashion presumptively leads to exclusion of the expert’s testimony at trial. But the strictures of Rule 26(a)(2)(B) do not apply in the pre-trial setting of the Daubert hearing. Among other things, that means that on ...
Under Federal Rules of Civil Procedure 26(a)(2)(B) and 37(c), the failure of a retained expert to submit the requisite, detailed report in a timely fashion presumptively leads to exclusion of the expert’s testimony at trial. But the strictures of Rule…
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No First-Party Cause of Action for Spoliation under Michigan Law — Limitations of Dissenting Opinions under Erie

Appalachian Railcar Servs., Inc. v. Boatright Enters., Inc., 2008 U.S. Dist. LEXIS 23940 (E.D. Mich. March 25, 2008) holds that there is no independent cause of action for spoliation against a party (that, of course, does not preclude sanctions). In urging the opposite result, the plaintiff relied on a dissenting opinion in an intermediate appellate court de ...
Appalachian Railcar Servs., Inc. v. Boatright Enters., Inc., 2008 U.S. Dist. LEXIS 23940 (E.D. Mich. March 25, 2008) holds that there is no independent cause of action for spoliation against a party (that, of course, does not preclude sanctions). In…
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Sarbanes-Oxley Whistleblower Provision — Prima Facie Case and Defenses

From Livingston v. Wyeth, Inc., 2008 U.S. App. LEXIS 6088 (4th Cir. Mar. 24, 2008): [T]o establish a cause of action under 18 U.S.C. § 1514A [Section 806 of the Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745, 802-04 (2002)], [the plaintiff] must show, in the context of this case, by a preponderance of the evidence that (1 ...
From Livingston v. Wyeth, Inc., 2008 U.S. App. LEXIS 6088 (4th Cir. Mar. 24, 2008): [T]o establish a cause of action under 18 U.S.C. § 1514A [Section 806 of the Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat.…
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Computerized Bloomberg Data within 803(17) Market Report Hearsay Exception

Federal Rule of Evidence 803(17) provides a hearsay exception for: (17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations. In United States v. ...
Federal Rule of Evidence 803(17) provides a hearsay exception for: (17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations. In United…
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RICO Pattern — Two Year Duration Benchmark for Closed-Ended Continuity

From Spool v. World Child Int’l Adoption Agency, 2008 U.S. App. LEXIS 5691 (2d Cir. March 18, 2008): Since the Supreme Court decided H.J. Inc., we have "never held a period of less than two years to constitute a 'substantial period of time.'" Cofacredit, 187 F.3d at 242. This conception of the substantiality requirement ...
From Spool v. World Child Int’l Adoption Agency, 2008 U.S. App. LEXIS 5691 (2d Cir. March 18, 2008): Since the Supreme Court decided H.J. Inc., we have “never held a period of less than two years to constitute a ‘substantial…
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Government Website — Self-Authentication

Under Rule 902(5) of the Federal Rules of Evidence, official publications of government offices, including their websites, are self-authenticating. (Cases are collected in the article entitled Internet and Email Evidence on the Recent Articles page.) The Ohio Court of Appeals came to the same conclusion under Ohio Rule of Evidence 902(5) in Harvard Mort. ...
Under Rule 902(5) of the Federal Rules of Evidence, official publications of government offices, including their websites, are self-authenticating. (Cases are collected in the article entitled Internet and Email Evidence on the Recent Articles page.) The Ohio Court of Appeals…
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What Does “Unpublished” Mean in the Electronic Era?

The E-Government Act of 2002 requires publication of all opinions. Federal Rule of Appellate Procedure 32.1 allows appellate opinions issued since its adoption to be cited. Yet opinions, district and appellate, continue to be issued bearing the label “unpublished.” Literally false, what does that mean? One District Judge’s meaning, from J.P. Morgan Tru ...
The E-Government Act of 2002 requires publication of all opinions. Federal Rule of Appellate Procedure 32.1 allows appellate opinions issued since its adoption to be cited. Yet opinions, district and appellate, continue to be issued bearing the label “unpublished.” Literally…
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Party in Arbitration Sanctioned for Issuing Federal Subpoena Using Caption of Stayed Action

The lawsuit Kenney, Becker LLP v. Kenney, 2008 U.S. Dist. LEXIS 19795 (S.D.N.Y. March 6, 2008), was placed on the suspense calendar when the parties were ordered to arbitration. Unknown to the defendant or the arbitrator, plaintiffs’ counsel unilaterally issued a subpoena using the caption of the federal action to compel the defendant’s bank to appear wi ...
The lawsuit Kenney, Becker LLP v. Kenney, 2008 U.S. Dist. LEXIS 19795 (S.D.N.Y. March 6, 2008), was placed on the suspense calendar when the parties were ordered to arbitration. Unknown to the defendant or the arbitrator, plaintiffs’ counsel unilaterally issued…
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Stoneridge on Remand — Rule 11 under the PSLRA

The Supreme Court decided Stoneridge in favor of the defendants, and, on remand, the defense affirmatively waived any Rule 11 sanctions and asked that judgment be entered in their favor. Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 2008 U.S. App. LEXIS 5418 (8th Cir. March 3, 2008). One hiccup: The mandatory sanctions review required ...
The Supreme Court decided Stoneridge in favor of the defendants, and, on remand, the defense affirmatively waived any Rule 11 sanctions and asked that judgment be entered in their favor. Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 2008 U.S. App.…
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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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