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

Primary Jurisdiction Primer (9th Circuit)

Greene v. T-Mobile USA, Inc., 2008 U.S. Dist. LEXIS 12605 (W.D. Wash. Feb. 7, 2008): Primary jurisdiction is properly invoked when a claim is cognizable in federal court but requires resolution of an issue of first impression, or of a particularly complicated issue that Congress has committed to a regulatory agency. [Citation omitted].< ...
Greene v. T-Mobile USA, Inc., 2008 U.S. Dist. LEXIS 12605 (W.D. Wash. Feb. 7, 2008): Primary jurisdiction is properly invoked when a claim is cognizable in federal court but requires resolution of an issue of first impression, or of a…
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Senate Judiciary Committee Report S. 2450 (Fed. R. Evid. 502)

Download associated file: Senate Judiciary Committee Report S. 2450.pdf  Attached is the Senate Judiciary Committee Report for S. 2450 -- Federal Rule of Evidence 502 (Waiver of Privilege and Work Product) -- which was passed by the Senate on February 27, 2008. ...
Download associated file: Senate Judiciary Committee Report S. 2450.pdf  Attached is the Senate Judiciary Committee Report for S. 2450 — Federal Rule of Evidence 502 (Waiver of Privilege and Work Product) — which was passed by the Senate on…
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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 LEXIS 4213 (10th Cir. Feb. 27, 2008) (unpublished), brought a civil RICO action attacking the conduct of the receivership and raising anew issues r ...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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Recent Posts

RICO Person vs. Enterprise: Subsidiary in Typical Corporate Structure Does Not Control Parent And Therefore Does Not Conduct Parent’s Affairs

Patently Frivolous RICO Complaint Fails to Confer Federal Question Jurisdiction — Subject to Rule 12(b)(1) for Lack of Subject Matter Jurisdiction

Inherent Power Sanctions — Dismissal — Abuse of Discretion Review Is “More Exacting” When Judge is “Accuser, Fact Finder and Sentencing Judge All in One” — Client Responsible for Her Lawyer’s Discovery Defalcations — No Need for Evidentiary Hearing When Sanctions Based Entirely on an Established Record — Lesser Sanctions Reasonably Determined to be Ineffective Given Record of Repeated Discovery Abuses

Inherent Power Sanction of Dismissal for Fraud on the Court — Fabrication of Evidence and Lying about It to the Court — 2-Part Test for Dismissal Sanction (Eleventh Circuit) — Whether Fraud on Court Was Committed for the Court, Not a Jury

New York Law Firm That Advised Florida Resident for Years Subject to Personal Jurisdiction in Florida, Thus Subject to 28 U.S.C. § 1782 in Florida — Court Cannot Amend Protective Order Following Dismissal of Case Unless the Order Retains Jurisdiction Post-Dismissal — Parties Can Enforce Stipulated Protective Order Post-Dismissal Through Breach of Contract Action

Rule 37(e)/Spoliation — “Intent to Deprive” Determined under the Preponderance of the Evidence Standard — Court May Make Determination Or Allow Jury to Do So — Lesser “Culpable Conduct” Standard of Residential Funding Continues to Apply in Second Circuit Outside ESI Context — Once Judge Has Definitively Ruled on the Record Denying A Requested Instruction, Counsel Is Not Required to Object to the Charge Again at Trial to Preserve Issue for Appeal

Rule 11 (9011) and Inherent Power Sanctions for “Unapologetic [Refusal to Apologize] Defiance” of Court’s Rules and Orders — Advising Client to Take Steps That Same Judge Had Told Lawyer Were Improper in Prior Case — Obstinate Recidivism — Silence upon Withdrawal of Motion As Rule 11 (9011) Violation (Noted But Not Addressed on Appeal)

Rule 37 Sanctions Properly Denied for Failure to Produce Documents That Were Already in the Requester’s Possession And Were Not Relevant to The Principal Issue in the Lawsuit — Experts/Daubert: Exclusion Appropriate Where Opinion Was Predicated on Erroneous Assumptions of Law

Supreme Court: Obtaining a Preliminary Injunction Does Not Render the Plaintiff a “Prevailing Party” Entitled to Attorney’s Fees — Must Win “Enduring Relief” On The Merits From A Judicial Order — Extraneous Events, Like Legislation, That Preserve The Outcome And Moot The Lawsuit Do Not Turn The Plaintiff into A Prevailing Party (Note, However, That A Defendant Need Not Obtain A Favorable Judgment On The Merits In Order To Be A “Prevailing Party”)

Supreme Court: When A Plaintiff Amends The Complaint To Delete The Federal-Law Claims That Enabled Removal To Federal Court, Leaving Only State-Law Claims, The Federal Court Loses Supplemental Jurisdiction, And The Case Must Be Remanded To State Court

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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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