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

Tellabs on Remand — Complaint Upheld — Confidential Sources Generally OK

On remand from the Supreme Court, the Seventh Circuit upheld the complaint in Makor Issues & Rights Ltd. v Tellabs Inc., 2008 U.S. App. LEXIS 975 (7th Cir. 2005). In the course of doing so, it sharply circumscribed its prohibition against plaintiffs’ relying on confidential sources in their complaints (see our post of July 29, 2007, discussing Higgingotham v. Bax ...
On remand from the Supreme Court, the Seventh Circuit upheld the complaint in Makor Issues & Rights Ltd. v Tellabs Inc., 2008 U.S. App. LEXIS 975 (7th Cir. 2005). In the course of doing so, it sharply circumscribed its prohibition…
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Twombly and Rule 12(e) — FJC Rule 12(e) Study

Download associated file: FJC 12e Paper.pdf  At the meeting of Standing Committee on Rules of Practice and Procedure last week at Pasadena, the Chair, Judge Lee Rosenthal, raised the question as to whether Rule 12(e) (Motion for a More Definite Statement) is still useful ...
Download associated file: FJC 12e Paper.pdf  At the meeting of Standing Committee on Rules of Practice and Procedure last week at Pasadena, the Chair, Judge Lee Rosenthal, raised the question as to whether Rule 12(e) (Motion for a More…
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Sanctions — Failure to Oppose Partial Summary Judgment ≠ Evidence of Bad Faith

The plaintiff in Heary Bros. Lightning Protection Co. v. Lightning Protection Corp., 2008 U.S. App. LEXIS 377 (9th Cir. Jan. 4, 2008), opposed the defendants’ motion for summary judgment on its Sherman Act claims but did not oppose summary judgment on three other counts. The District Court imposed sanctions under the inherent power of the court, finding “that t ...
The plaintiff in Heary Bros. Lightning Protection Co. v. Lightning Protection Corp., 2008 U.S. App. LEXIS 377 (9th Cir. Jan. 4, 2008), opposed the defendants’ motion for summary judgment on its Sherman Act claims but did not oppose summary judgment…
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Affirmative Defense of Recoupment as Offset Barred by Statute of Limitations?

In a suit for unpaid sales commissions, Mikels v. Unique Tool & Mfg. Co., 2007 U.S. Dist. LEXIS 91814 (W.D. N.C. Dec. 3, 2007), the defendant asserted as an affirmative defense the right to offset against any recovery "any previous overpayment of commissions" paid to the plaintiff. The plaintiff moved for summary judgment on the ground that, while his claim was tim ...
In a suit for unpaid sales commissions, Mikels v. Unique Tool & Mfg. Co., 2007 U.S. Dist. LEXIS 91814 (W.D. N.C. Dec. 3, 2007), the defendant asserted as an affirmative defense the right to offset against any recovery “any previous…
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Grable — Federal Jurisdiction Through Conflict with Pending Federal Agency Order — Incomplete Preemption Not Enough

Massachusetts brought an action in state court against a lender charging that its sub-prime mortgage practices violated state consumer protection statutes, in Com’w of Massachusetts v. Fremont Inv. & Loan, 2007 U.S. Dist. LEXIS 95617 (D. Mass. Dec. 26, 2007). The lender removed to federal court alleging that some of the relief sought in the complaint “may or do ...
Massachusetts brought an action in state court against a lender charging that its sub-prime mortgage practices violated state consumer protection statutes, in Com’w of Massachusetts v. Fremont Inv. & Loan, 2007 U.S. Dist. LEXIS 95617 (D. Mass. Dec. 26, 2007).…
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Securities Circuit Split — Does PSLRA Affect the Liberal Pleading Amendment Standard of Rule 15?

In its first post-Tellabs securities decision, the First Circuit in ACA Fin. Guar. Corp. v. Advest, Inc., 2008 U.S. App. LEXIS 451 (1st Cir. Jan. 10, 2008), decided a series of pleading questions and held that the customary liberal pleading standard of Rule 15(a) survives enactment of the Private Securities Litigation Reform Act. The Circuits are split as t ...
In its first post-Tellabs securities decision, the First Circuit in ACA Fin. Guar. Corp. v. Advest, Inc., 2008 U.S. App. LEXIS 451 (1st Cir. Jan. 10, 2008), decided a series of pleading questions and held that the customary liberal pleading…
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Third Party Statements Quoted on Website as Party Admissions

In order to prove that the defendant’s product contained ingredients patented by the plaintiff, the plaintiff in Mannatech Inc. v. Glycobiotics Int’l, Inc., 2007 U.S. Dist. LEXIS 91946 (N.D. Tex. Dec. 14, 2007), offered customer testimonials contained on the defendant’s website. Without deciding the issue, the Court indicated that the testimonials could be ad ...
In order to prove that the defendant’s product contained ingredients patented by the plaintiff, the plaintiff in Mannatech Inc. v. Glycobiotics Int’l, Inc., 2007 U.S. Dist. LEXIS 91946 (N.D. Tex. Dec. 14, 2007), offered customer testimonials contained on the defendant’s…
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Footnote of the Day

From Winters v. Stemberg, 2008 U.S. Dist. LEXIS 778, at *36 n.7 (D. Mass. Jan. 4, 2008): *** See generally Gregory P. Joseph, Federal Litigation — Where Did It Go Off Track? (forthcoming 2008) (brief but brilliant synopsis noting the PSLRA as one reason why "today, plaintiffs with non-federal causes of action flee federal ...
From Winters v. Stemberg, 2008 U.S. Dist. LEXIS 778, at *36 n.7 (D. Mass. Jan. 4, 2008): *** See generally Gregory P. Joseph, Federal Litigation — Where Did It Go Off Track? (forthcoming 2008) (brief but brilliant synopsis noting the…
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Sanctions — § 1927 — Post-Judgment Jurisdiction

The Fifth Circuit upheld the imposition of § 1927 sanctions more than a year after the frivolous lawsuit had been dismissed (the plaintiff sued the wrong doctor) in Ratliff v. Gibson, 2007 U.S. App. LEXIS 28664 (5th Cir. Nov. 13, 2007). Looking to Rule 11 precedent, Circuit Judge Jerry E. Smith wrote for the Court that: “Requests for attorneys' fees and ...
The Fifth Circuit upheld the imposition of § 1927 sanctions more than a year after the frivolous lawsuit had been dismissed (the plaintiff sued the wrong doctor) in Ratliff v. Gibson, 2007 U.S. App. LEXIS 28664 (5th Cir. Nov. 13,…
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Securities — Confidential Informants via Newspaper

A substantial body of law addresses the extent to which a securities fraud complaint may rest on allegations based on the plaintiffs’ confidential informants (see our post of July 29, 2007, discussing Higgingotham v. Baxter Int’l, Inc., 2007 U.S. App. LEXIS 17918 (7th Cir. July 27, 2007)). What if the confidential informants are not those of the plaintiffs but, ...
A substantial body of law addresses the extent to which a securities fraud complaint may rest on allegations based on the plaintiffs’ confidential informants (see our post of July 29, 2007, discussing Higgingotham v. Baxter Int’l, Inc., 2007 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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