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

$8.5 Million in Sanctions for Willful Disregard of Client Discovery Misbehavior

One of the largest monetary sanctions in U.S. history was imposed on the plaintiff in Qualcomm Inc. v. Broadcom Corp., 2008 U.S. Dist. LEXIS 911 (S.D. Cal. Jan. 7, 2008). Several, but not all, of plaintiffs’ counsel were held to have committed sanctionable acts (or inaction) and referred to the California State Bar for investigation of possible ethical vio ...
One of the largest monetary sanctions in U.S. history was imposed on the plaintiff in Qualcomm Inc. v. Broadcom Corp., 2008 U.S. Dist. LEXIS 911 (S.D. Cal. Jan. 7, 2008). Several, but not all, of plaintiffs’ counsel were held to…
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Federal Jurisdiction — Dual Citizen Cannot Invoke Alienage Jurisdiction Absent Diversity

The plaintiff in Frett-Smith v. Vanterpool, 2008 U.S. App. LEXIS 31 (3d Cir. Jan. 3, 2008), held dual citizenship in the U.S. and the British Virgin Islands. Her domicile was in the BVI. She filed a personal injury action against United States citizens domiciled in the Virgin Islands in federal court in the District of the Virgin Islands alleging alienage jurisdic ...
The plaintiff in Frett-Smith v. Vanterpool, 2008 U.S. App. LEXIS 31 (3d Cir. Jan. 3, 2008), held dual citizenship in the U.S. and the British Virgin Islands. Her domicile was in the BVI. She filed a personal injury action against…
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Motion for Reconsideration — Standards — Sanctions

Chapman v. Journal Concepts, Inc., 2007 U.S. Dist. LEXIS 91621 (D. Haw. Dec. 12, 2007): 1. Standards. “Courts have established only three grounds justifying reconsideration: (1) an intervening change in controlling law; (2) the discovery of new evidence not previously available; and (3) the need to correct clear or manifest error in l ...
Chapman v. Journal Concepts, Inc., 2007 U.S. Dist. LEXIS 91621 (D. Haw. Dec. 12, 2007): 1. Standards. “Courts have established only three grounds justifying reconsideration: (1) an intervening change in controlling law; (2) the discovery of new evidence not previously…
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Duty to Reimburse Expert Deposition Expenses under Rule 26(b)(4)(c)

Federal Rule of Civil Procedure 26(b)(4)(C) (as restyled) provides: Unless manifest injustice would result, the court must require that the party seeking discovery: (i) pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (B). Does the time “spent” by an expert “in resp ...
Federal Rule of Civil Procedure 26(b)(4)(C) (as restyled) provides: Unless manifest injustice would result, the court must require that the party seeking discovery: (i) pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A)…
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Email / Instant Messages — Authentication

The defendant in United States v. Gagliardi, 506 F.3d 140 (2d Cir. 2007), used email and instant messaging to attempt to entice a minor into prohibited activity. Appealing his conviction, he contended that the electronic communications were inadequately authenticated by testimony of an informant and government agent. Rejecting the contention, the Second Circuit st ...
The defendant in United States v. Gagliardi, 506 F.3d 140 (2d Cir. 2007), used email and instant messaging to attempt to entice a minor into prohibited activity. Appealing his conviction, he contended that the electronic communications were inadequately authenticated by…
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Sanctions — § 1927 — Questions of First Impression

To be sanctionable under 28 U.S.C. § 1927, counsel's conduct must multiply the proceedings both ``unreasonably and vexatiously.'' What is “reasonabl[e]” in the context of a question of first impression? A plausible position. Under Lira v Arrow Air, Inc., 2007 U.S. Dist. LEXIS 88751 (S.D. Fla. Nov. 28, 2007), § 1927 sanctions are inappropriate for a ...
To be sanctionable under 28 U.S.C. § 1927, counsel’s conduct must multiply the proceedings both “unreasonably and vexatiously.” What is “reasonabl[e]” in the context of a question of first impression? A plausible position. Under Lira v Arrow Air, Inc., 2007…
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Review and Use of Inadvertently-Produced Privileged Materials — Multiple Disqualifications

Disqualification is contagious. On December 13, 2007, the California Supreme Court upheld disqualification of the attorneys and experts for the plaintiff in RICO v. Mitsubishi Motors Corp, No. S123808, 2007 Cal. LEXIS 13892 (Cal. Dec. 13, 2007) because plaintiffs’ counsel reviewed, used (in deposition) and shared with plaintiffs’ experts a document containing t ...
Disqualification is contagious. On December 13, 2007, the California Supreme Court upheld disqualification of the attorneys and experts for the plaintiff in RICO v. Mitsubishi Motors Corp, No. S123808, 2007 Cal. LEXIS 13892 (Cal. Dec. 13, 2007) because plaintiffs’ counsel…
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Power to Sanction After Notice of Appeal Filed

After a party files a notice of appeal, does the district court retain jurisdiction to sanction? The question is whether the sanctions issue is collateral to the matters on appeal (it usually is). In Briggs v. Briggs, 2007 U.S. App. LEXIS 29712 (11th Cir. Dec. 19, 2007) (unpublished), the Eleventh Circuit held that: “Because the issue of whether [counsel ...
After a party files a notice of appeal, does the district court retain jurisdiction to sanction? The question is whether the sanctions issue is collateral to the matters on appeal (it usually is). In Briggs v. Briggs, 2007 U.S. App.…
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Securities Sufficiently Implicated to Trigger PSLRA’s RICO Bar but Not Its Mandatory Sanctions Provision

The plaintiff in Lowery v. Blue Steel Releasing, Inc., 2007 U.S. App. LEXIS 29896 (9th Cir. Dec. 20, 2007), alleged that the defendants induced him by fraud to invest $75,000 by wire transfer in Blue Steel. The Ninth Circuit affirmed dismissal of the RICO claim due to the RICO Bar enacted as part of the Private Securities Litigation Reform Act of 1995 ("no person m ...
The plaintiff in Lowery v. Blue Steel Releasing, Inc., 2007 U.S. App. LEXIS 29896 (9th Cir. Dec. 20, 2007), alleged that the defendants induced him by fraud to invest $75,000 by wire transfer in Blue Steel. The Ninth Circuit affirmed…
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Publicly Available Documents Obtained in Pre-Litigation Investigation ≠ Work Product

The defendant in Kartman v. State Farm Mut. Auto. Ins. Co., 2007 U.S. Dist. LEXIS 94699 (S.D. Ind. Dec. 21, 2007), served discovery demands on plaintiffs requesting the documents obtained by plaintiffs' counsel in their investigation. In that investigation, counsel gathered numerous documents from publicly available sources, including from Defendant State Farm's ow ...
The defendant in Kartman v. State Farm Mut. Auto. Ins. Co., 2007 U.S. Dist. LEXIS 94699 (S.D. Ind. Dec. 21, 2007), served discovery demands on plaintiffs requesting the documents obtained by plaintiffs’ counsel in their investigation. In that investigation, counsel…
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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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