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

The Impact of CAFA on the Federal Courts — FJC Study

Download associated file: FJC CAFA Study.pdf  Attached is the April 2007 Federal Judicial Center Report, The Impact of the Class Action Fairness Act of 2005 on the Federal Courts by Tom Willging and Emery Lee of the FJC. One of a series of reports prepared for the ...
Download associated file: FJC CAFA Study.pdf  Attached is the April 2007 Federal Judicial Center Report, The Impact of the Class Action Fairness Act of 2005 on the Federal Courts by Tom Willging and Emery Lee of the FJC. One…
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Connecticut State Court Recognizes Tort of Intentional Spoliation of Evidence by Non-Party

The Connecticut Superior Court recognized a cause of action for third-party intentional spoliation of evidence in Diana v. NetJets Servs., Inc.,2007 Conn. Super. LEXIS 3491 (Conn. Super. Dec. 27, 2007), a personal injury action brought by an individual injured on airport property against, inter alia, the airport owner, which had received an incident report ab ...
The Connecticut Superior Court recognized a cause of action for third-party intentional spoliation of evidence in Diana v. NetJets Servs., Inc.,2007 Conn. Super. LEXIS 3491 (Conn. Super. Dec. 27, 2007), a personal injury action brought by an individual injured on…
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How Many Points to Raise on Appeal

From Gary v. Braddock Cemetery, 2008 U.S. App. LEXIS 2533 (3d Cir. Feb. 5, 2008): With a decade and a half of federal appellate court experience behind me, I can say that even when we reverse a trial court it is rare that a brief successfully demonstrates that the trial court committed more than one or two reversible errors. I have said in ...
From Gary v. Braddock Cemetery, 2008 U.S. App. LEXIS 2533 (3d Cir. Feb. 5, 2008): With a decade and a half of federal appellate court experience behind me, I can say that even when we reverse a trial court it…
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Limits of Expert Testimony

Highland Capital Mgmt., LP v. Schneider, 2008 U.S. Dist. LEXIS 7019 (S.D.N.Y. Jan. 28, 2008): 1. No Testimony as to Witness Credibility. “[Expert] Duval's opinion as to the credibility of witnesses is inadmissible.... [T]he credibility of witnesses is exclusively for the determination of the jury.... Such subjective review of ...
Highland Capital Mgmt., LP v. Schneider, 2008 U.S. Dist. LEXIS 7019 (S.D.N.Y. Jan. 28, 2008): 1. No Testimony as to Witness Credibility. “[Expert] Duval’s opinion as to the credibility of witnesses is inadmissible…. [T]he credibility of witnesses is exclusively for…
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Exclusion of Hearsay Dooms Death Case

Facts known only to a decedent can be deadly difficult to prove. The plaintiff’s decedent in Brown v. SmithKline Beecham Corp., 2008 U.S. Dist. LEXIS 5091 (N.D. Ill. Jan. 18, 2008), died as a result of a stroke that his widow attributed to his ingestion of Contac.® It was essential on the issue of causation to prove ingestion within 72 hours of death, but the p ...
Facts known only to a decedent can be deadly difficult to prove. The plaintiff’s decedent in Brown v. SmithKline Beecham Corp., 2008 U.S. Dist. LEXIS 5091 (N.D. Ill. Jan. 18, 2008), died as a result of a stroke that his…
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Email Evidence — Admissibility of Text Messages

The admissibility of text messages from the defendant to the victim was a key issue in State v. Espiritu, 2008 Haw. LEXIS 15 (Haw. Sup. Ct. Jan. 28, 2008), an appeal from a conviction for attempted murder and other offenses. The defendant conceded that the text messages “would arguably be admissible as an exception to the hearsay rule as an admission by a party-o ...
The admissibility of text messages from the defendant to the victim was a key issue in State v. Espiritu, 2008 Haw. LEXIS 15 (Haw. Sup. Ct. Jan. 28, 2008), an appeal from a conviction for attempted murder and other offenses.…
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Privilege Developments in the Corporate Context — 2008

A new article discussing recent developments in attorney-client privilege and work product protection in the corporate context has been posted on the Recent Articles page. It can be found at http://www.josephny_live.com/articles/viewarticle.php?54. ...
A new article discussing recent developments in attorney-client privilege and work product protection in the corporate context has been posted on the Recent Articles page. It can be found at http://www.josephny_live.com/articles/viewarticle.php?54.
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No Rule 16(f) Sanctions for Prompt Dismissal of Case Following Pretrial Conference

Some good deeds go unpunished. The plaintiff in Allen v. Tribune N.Y. Newspaper Holdings, LLC, 246 F.R.D. 465 (S.D.N.Y. 2007), dismissed a weak case and managed not to get sanctioned as a result of dismissing it. Several hours after an initial status conference before Judge Jed S. Rakoff, plaintiffs’ voluntarily dismissed their complaint. (It must have been som ...
Some good deeds go unpunished. The plaintiff in Allen v. Tribune N.Y. Newspaper Holdings, LLC, 246 F.R.D. 465 (S.D.N.Y. 2007), dismissed a weak case and managed not to get sanctioned as a result of dismissing it. Several hours after an…
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Addressing Spoliation by Rule — The Tennessee Example

The Federal Rules of Civil Procedure do not specifically address spoliation. The Rules Enabling Act is a factor, as it dictates that “rules shall not abridge, enlarge or modify any substantive right,” 28 U.S.C. § 2072(b), and it is challenging to draft a proscription against spoliation while being unable to craft the preservation duty the violation of which tr ...
The Federal Rules of Civil Procedure do not specifically address spoliation. The Rules Enabling Act is a factor, as it dictates that “rules shall not abridge, enlarge or modify any substantive right,” 28 U.S.C. § 2072(b), and it is challenging…
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Senate Judiciary Committee Approves Federal Judicial Pay Hike

The Associated Press reports that, on Thursday, January 31, the Senate Judiciary Committee approved the following federal judicial salary increases by a 10-7 vote: District court judges, from $169,300 to about $218,000. Circuit judges, from $179,500 to about $231,100. Supreme Court associate justices, from $208,100 to about $267,900 ...
The Associated Press reports that, on Thursday, January 31, the Senate Judiciary Committee approved the following federal judicial salary increases by a 10-7 vote: District court judges, from $169,300 to about $218,000. Circuit judges, from $179,500 to about $231,100. Supreme…
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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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