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 Four Most Significant Developments in Federal Practice in 2007

1. Bell Atlantic v. Twombly, 127 S. Ct. 1955 (2007). No one can possibly know what Rule 8(a)(2) means any more. Before Twombly, courts would occasionally find complaints too long and detailed to satisfy the “short and plain statement of the case” requirement of Rule 8(a)(2). Twombly then proceeded to read Rule 8(a)(2) as requiring ...
1. Bell Atlantic v. Twombly, 127 S. Ct. 1955 (2007). No one can possibly know what Rule 8(a)(2) means any more. Before Twombly, courts would occasionally find complaints too long and detailed to satisfy the “short and plain statement of…
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Proving Terrorism — Rules 702, 703 and Website Evidence — Rule 803(8) Official Reports

The plaintiffs’ expert in Boim v. Holy Land Foundation, 2007 U.S. App. LEXIS 29864 (7th Cir. Dec. 28, 2007), relied in part on internet website postings in which the terrorist organization Hamas took credit for the murder of plaintiffs’ decedent. The panel majority ruled that the expert failed sufficiently to elucidate the basis for his conclusion that t ...
The plaintiffs’ expert in Boim v. Holy Land Foundation, 2007 U.S. App. LEXIS 29864 (7th Cir. Dec. 28, 2007), relied in part on internet website postings in which the terrorist organization Hamas took credit for the murder of plaintiffs’ decedent.…
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Primer on Aspects of the Law of Electronic Spoliation as of December 2007

Toussie v. County of Suffolk, 2007 U.S. Dist. LEXIS 93988 (E.D.N.Y. Dec. 21, 2007): • “In general, the obligation to preserve evidence arises when [a] party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation." • “At times, th ...
Toussie v. County of Suffolk, 2007 U.S. Dist. LEXIS 93988 (E.D.N.Y. Dec. 21, 2007): • “In general, the obligation to preserve evidence arises when [a] party has notice that the evidence is relevant to litigation or when a party should…
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Class Actions — Attorney-Client Relationship Between Class Counsel and Absent Class Members

The New York Appellate Division, First Department, ruled on Thursday, December 27, 2007, that the attorney-client relationship between class counsel and absent class members is limited in scope and, specifically, does not require class counsel to turn over work product to every absent class member. The decision, Wyly v. Milberg Weiss Bershad & Schulman, LLP,
The New York Appellate Division, First Department, ruled on Thursday, December 27, 2007, that the attorney-client relationship between class counsel and absent class members is limited in scope and, specifically, does not require class counsel to turn over work product…
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Rule 701— The Scope of Permissible Lay Opinion Testimony

As amended effective December 1, 2000, Federal Rule of Evidence 701 contemplates that lay witnesses may testify to opinions that are "(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge ...
As amended effective December 1, 2000, Federal Rule of Evidence 701 contemplates that lay witnesses may testify to opinions that are “(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony…
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Experts — Survey Evidence and Daubert

In a major decision addressing expert evidence in trademark litigation, District Judge Shira A. Scheindlin, in Louis Vuitton Malletier, v. Dooney & Bourke, Inc., 2007 U.S. Dist. LEXIS 91934 (S.D.N.Y. Dec. 13, 2007), excluded voluminous expert evidence — largely survey evidence, but damages evidence as well — for failure to satisfy Rule 702 (Daubert ...
In a major decision addressing expert evidence in trademark litigation, District Judge Shira A. Scheindlin, in Louis Vuitton Malletier, v. Dooney & Bourke, Inc., 2007 U.S. Dist. LEXIS 91934 (S.D.N.Y. Dec. 13, 2007), excluded voluminous expert evidence — largely survey…
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Attorney-Client Privilege — Waiver of Registration Advice by Filing Trademark Action

The key waiver issue in Quiksilver, Inc. v. Kymsta Corp, 2007 U.S. Dist. LEXIS 92905 (C.D. Cal. Dec. 18, 2007), centered on the defendant’s claim that that plaintiff impliedly waived its attorney-client privilege by filing this trademark infringement action, on the theory that the action "involv[ed] registrations acquired via the applications prosecuted b ...
The key waiver issue in Quiksilver, Inc. v. Kymsta Corp, 2007 U.S. Dist. LEXIS 92905 (C.D. Cal. Dec. 18, 2007), centered on the defendant’s claim that that plaintiff impliedly waived its attorney-client privilege by filing this trademark infringement action, on…
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When Does an Email Satisfy the Statute of Frauds? Part 2 — Real Property

Our post of October 3, 2007, discussed New York General Obligations Law § 5-701 and the question of when a an email — with the sender’s name typed at the end — may suffice to satisfy the statute of frauds in the context of a personal services contract. In contrast, Vista Dev. Corp. v. VFP Realty LLC, 17 Misc. 3d 914 (Sup. Ct. Queens County Oct. 7, 200 ...
Our post of October 3, 2007, discussed New York General Obligations Law § 5-701 and the question of when a an email — with the sender’s name typed at the end — may suffice to satisfy the statute of frauds…
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Sham Pleadings — Amended Pleading that Contradicts Predecessor

“Does the fact that an amended complaint (or answer) contains an allegation that is apparently contrary to an earlier iteration of the same pleading render the later pleading a sham? The answer is: not necessarily.” So writes Chief Circuit Judge Alex Kozinski in PAE Gov’t Servs. v. MPRI, Inc., 2007 U.S. App. LEXIS 29221 (9th Cir. Dec. 18, 2007). A sep ...
“Does the fact that an amended complaint (or answer) contains an allegation that is apparently contrary to an earlier iteration of the same pleading render the later pleading a sham? The answer is: not necessarily.” So writes Chief Circuit Judge…
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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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