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

Nacchio Tenth Circuit Reversal — Criminal vs. Civil Expert Disclosure; Economic Expert Testimony; New Judge on Retrial

From United States .v Nacchio, No. 07-1311 (10th Cir. March 17, 2008): 1. Expert Disclosure under Criminal Rule 16 Is Narrower than Civil Expert Discovery under Rule 26(a)(2)(B). “The district court’s error may have proceeded from confusion between the civil and criminal rules. Unlike under the civil rules, an expert in a ...
From United States .v Nacchio, No. 07-1311 (10th Cir. March 17, 2008): 1. Expert Disclosure under Criminal Rule 16 Is Narrower than Civil Expert Discovery under Rule 26(a)(2)(B). “The district court’s error may have proceeded from confusion between the civil…
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Fed.R.Evid. 803(8)(C) (Official Reports) — Factors Affecting Admissibility

Kennedy v. Joy Techs., Inc., 2008 U.S. App. LEXIS 5396 (4th Cir. March 12, 2008) (unpublished) summarizes caselaw holding that Federal Rule of Evidence 803(8)(C) places the burden on the opponent of admissibility of an official record to establish its lack of trustworthiness, absent which admissibility is presumed. The opinion also usefully identifies the s ...
Kennedy v. Joy Techs., Inc., 2008 U.S. App. LEXIS 5396 (4th Cir. March 12, 2008) (unpublished) summarizes caselaw holding that Federal Rule of Evidence 803(8)(C) places the burden on the opponent of admissibility of an official record to establish its…
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Lawyer Sanctioned for Client Misbehavior at Deposition

The owner of the defendant, testifying at his deposition, was unspeakably profane and abusive in GMAC Bank v. HTFC Corp., 2008 U.S. Dist. LEXIS 15878 (E.D. Pa. Feb. 29, 2008). As summarized by the District Court: Throughout his deposition, Wider sought to intimidate opposing counsel by maintaining a persistently hostile demeanor, employi ...
The owner of the defendant, testifying at his deposition, was unspeakably profane and abusive in GMAC Bank v. HTFC Corp., 2008 U.S. Dist. LEXIS 15878 (E.D. Pa. Feb. 29, 2008). As summarized by the District Court: Throughout his deposition, Wider…
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Federal Rule of Evidence 502 in Congress

On Friday afternoon, March 14, 2008, I participated in a conference call with House Judiciary Committee staffers concerning proposed Federal Rule of Evidence 502 (waiver of privilege and work product). The good news is that they agreed that there is a problem that needs to be addressed -- a threshold which, they said, is rarely crossed. The bad news is that they f ...
On Friday afternoon, March 14, 2008, I participated in a conference call with House Judiciary Committee staffers concerning proposed Federal Rule of Evidence 502 (waiver of privilege and work product). The good news is that they agreed that there is…
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Learned Treatises by Non-Neutral Authors — Identity of Non-Testifying Experts as Work Product

Learned Treatises by Interested Authors. A key issue in In re Welding Fume Prods. Liab. Litig., 2008 U.S. Dist. LEXIS 14319 (N.D. Ohio Feb. 19, 2008), was whether, and to what extent, exposure to welding fumes can cause neurological damage. The parties relied, on direct and cross-examination and on motion practice, on scientific, medical, and epidemiol ...
Learned Treatises by Interested Authors. A key issue in In re Welding Fume Prods. Liab. Litig., 2008 U.S. Dist. LEXIS 14319 (N.D. Ohio Feb. 19, 2008), was whether, and to what extent, exposure to welding fumes can cause neurological damage.…
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Party May Be Served with Trial Subpoena Despite Living Out of State and More than 100 Miles from Courthouse

Permitting the plaintiff to serve a trial subpoena on a distant individual defendant, the Court in Clark v. Wilkin, 2008 U.S. Dist. LEXIS 18419 (D. Utah March 10, 2008) noted a split on the issue: While there is a split among courts on this issue, the majority of courts, including this Court, have found that when a subpoena is served upon ...
Permitting the plaintiff to serve a trial subpoena on a distant individual defendant, the Court in Clark v. Wilkin, 2008 U.S. Dist. LEXIS 18419 (D. Utah March 10, 2008) noted a split on the issue: While there is a split…
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Legal Malpractice — Shifting of Burden by Defendant’s Introduction of Expert Evidence of Competence

From Orchard Motorcycle Dist., Inc. v. Morrison Cohen Singer & Weinstein LLP, 2008 NY Slip Op 1996, 2008 N.Y. App. Div. LEXIS 1864 (1st Dep’t March 6, 2008): The expert's affidavit was enough to sustain defendant's prima facie burden on the motion for summary dismissal of the legal malpractice claim, shifting the burden to plaintiffs ...
From Orchard Motorcycle Dist., Inc. v. Morrison Cohen Singer & Weinstein LLP, 2008 NY Slip Op 1996, 2008 N.Y. App. Div. LEXIS 1864 (1st Dep’t March 6, 2008): The expert’s affidavit was enough to sustain defendant’s prima facie burden on…
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Section 1782 as a Factor in Forum Non Conveniens Decisions

For an excellent article by Eric Sherby analyzing the use of 28 U.S.C. § 1782 (which authorizes the taking of evidence in the United States for proceedings abroad) in federal district court decisions as a factor in resolving forum non conveniens motions, go to http://www.sherby.co.il/200803ILQ.pdf. Eric is a prominent Israeli practitioner who practiced succ ...
For an excellent article by Eric Sherby analyzing the use of 28 U.S.C. § 1782 (which authorizes the taking of evidence in the United States for proceedings abroad) in federal district court decisions as a factor in resolving forum non…
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Removal — District Court Prohibited from Remanding Case Sua Sponte Based on Procedural Defect in Removal Notice — Motion to Remand Required

In Ellenburg v. Spartan Motors Chassis, Inc., 2008 U.S. App. LEXIS 5076 (4th Cir. March 10, 2008), the Fourth Circuit joined every other Circuit that has considered the issue in holding that a “district court is prohibited from remanding a case sua sponte based on a procedural defect absent a motion to do so from a party.” The case raised ...
In Ellenburg v. Spartan Motors Chassis, Inc., 2008 U.S. App. LEXIS 5076 (4th Cir. March 10, 2008), the Fourth Circuit joined every other Circuit that has considered the issue in holding that a “district court is prohibited from remanding a…
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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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