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

RICO and Res Judicata

Several years after his business was put into receivership to effect a settlement agreement he had entered into with the FTC (for deceptive trade practices), the plaintiff in Peterson v. Saperstein, 2008 U.S. App. LEXIS 4213 (10th Cir. Feb. 27, 2008) (unpublished), brought a civil RICO action attacking the conduct of the receivership and raising anew issues r ...
Several years after his business was put into receivership to effect a settlement agreement he had entered into with the FTC (for deceptive trade practices), the plaintiff in Peterson v. Saperstein, 2008 U.S. App. LEXIS 4213 (10th Cir. Feb. 27,…
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$10 Million Inherent Power Sanction for Bad Faith Litigation Abuse

The $10 million sanction imposed in DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 2008 U.S. Dist. LEXIS 13759 (D. Mass. Feb. 25, 2008), a patent case, is one of the ten largest reported sanctions awards (at least, it makes the top ten list in Chapter 1 of my book). The District Judge’s summary of the misconduct: Throughout trial ...
The $10 million sanction imposed in DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 2008 U.S. Dist. LEXIS 13759 (D. Mass. Feb. 25, 2008), a patent case, is one of the ten largest reported sanctions awards (at least, it makes…
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Sanctions — Reliance on Government Agency Complaint in Pleading a Private Action

The plaintiffs’ counsel in In re Connetics Corp. Secs. Litig., 2008 U.S. Dist. LEXIS 9634 (N.D. Cal. Jan. 28, 2008), a securities class action, allegedly took several paragraphs from a complaint filed by the SEC and inserted them in the class action complaint. Certain defendants moved to strike on the ground that “lifting allegations from an SEC complain ...
The plaintiffs’ counsel in In re Connetics Corp. Secs. Litig., 2008 U.S. Dist. LEXIS 9634 (N.D. Cal. Jan. 28, 2008), a securities class action, allegedly took several paragraphs from a complaint filed by the SEC and inserted them in the…
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Dismissal Motion — Affidavit Offered to Address a Fact Issue Integral to the Complaint

The plaintiff in Jackson v. Alpharma Inc., 2008 U.S. Dist. LEXIS 12787 (D.N.J. Feb. 21, 2008), a putative class action, asserted federal jurisdiction under the Class Action Fairness Act. CAFA jurisdiction requires 100 or more potential class members and an amount in controversy exceeding $5 million. The defendant filed an affidavit from a corporate officer ...
The plaintiff in Jackson v. Alpharma Inc., 2008 U.S. Dist. LEXIS 12787 (D.N.J. Feb. 21, 2008), a putative class action, asserted federal jurisdiction under the Class Action Fairness Act. CAFA jurisdiction requires 100 or more potential class members and an…
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Privilege — Right of Former Officer or Director to Rely on Advice Given by Corporate Counsel

Corporate officers and directors are statutorily permitted to rely on advice of counsel when making decisions in their fiduciary capacities. When these actions are challenged after they have left office, they commonly want to assert as a defense reliance on the advice they received from counsel to the corporation (either in-house or outside), and it would seem only ...
Corporate officers and directors are statutorily permitted to rely on advice of counsel when making decisions in their fiduciary capacities. When these actions are challenged after they have left office, they commonly want to assert as a defense reliance on…
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Sanctions — Withdrawal of Offending Paper as Evidence of Meritlessness

One of the reasons that the 21-day safe harbor was introduced in the 1993 amendment to Federal Rule of Civil Procedure 11 was to encourage parties to withdraw sanctionable papers or positions without litigation. That has proved generally effective under Rule 11. But this safe harbor does not govern non-Rule 11 sanctions motions, as reflected in the Sixth Circuit ...
One of the reasons that the 21-day safe harbor was introduced in the 1993 amendment to Federal Rule of Civil Procedure 11 was to encourage parties to withdraw sanctionable papers or positions without litigation. That has proved generally effective under…
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Testimonial Authentication of Email Evidence

As discussed in the article Internet and Email Evidence on the Recent Articles page (http://www.josephny_live.com/articles/viewarticle.php?11), there are many ways to authenticate email evidence. One simply way is to have one of the participants to the exchanges testify that printouts are fair and accurate copies. See, e.g., Ussery v. State, 2008 Tex ...
As discussed in the article Internet and Email Evidence on the Recent Articles page (http://www.josephny_live.com/articles/viewarticle.php?11), there are many ways to authenticate email evidence. One simply way is to have one of the participants to the exchanges testify that printouts are…
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Lawyer’s Fiduciary Duties to Non-Clients — Debtor’s Counsel Owes Fiduciary Duty to Estate

In a decision that has important implications outside the bankruptcy context, Bankruptcy Judge Martin Glenn ruled in In re Food Mgmt. Group, LLC (Grubin v. Rattet), 380 B.R. 677, 2008 Bankr. LEXIS 112 (Bankr. S.D.N.Y. Jan. 23, 2008), that counsel to the debtor owes a fiduciary duty to the estate (as opposed to the duty owed to the debtor in possession, coun ...
In a decision that has important implications outside the bankruptcy context, Bankruptcy Judge Martin Glenn ruled in In re Food Mgmt. Group, LLC (Grubin v. Rattet), 380 B.R. 677, 2008 Bankr. LEXIS 112 (Bankr. S.D.N.Y. Jan. 23, 2008), that counsel…
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Judicial Notice of Filings in Other Courts Appropriate — 12(b)(6) Motion

Hensley v. United States District Court Eastern District of California, 2008 U.S. Dist. LEXIS 11965 (E.D. Cal. Feb. 15, 2008): On a motion to dismiss, the court may take judicial notice of matters of public record outside the pleadings. MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986). A court may take judicial notic ...
Hensley v. United States District Court Eastern District of California, 2008 U.S. Dist. LEXIS 11965 (E.D. Cal. Feb. 15, 2008): On a motion to dismiss, the court may take judicial notice of matters of public record outside the pleadings. MGIC…
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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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