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

Appellate Standing — Attorneys’ Fee Award

A lawyer has standing to appeal an award of attorneys' fees even if the statute pursuant to which fees were awarded confers as standing only on the client, under the Sixth Circuit’s decision in Gonger v. Hunt Valve Co., 2007 U.S. App. LEXIS 29229 (6th Cir. Deck. 18, 2007). Although the decision was rendered under the False Claims Act, the Court looked to p ...
A lawyer has standing to appeal an award of attorneys’ fees even if the statute pursuant to which fees were awarded confers as standing only on the client, under the Sixth Circuit’s decision in Gonger v. Hunt Valve Co., 2007…
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Judicial vs. Equitable Estoppel — Second Circuit

The plaintiffs in In re Omnicom Group, Inc., Secs. Litig., 2007 U.S. Dist. LEXIS 60298 (S.D.N.Y. Aug. 10, 2007), moved to preclude the testimony of the defendants' principal expert on judicial and equitable estoppel grounds, contending that he relied on a set of facts that was inconsistent with the facts put forth by the defendants in opposing a motion to com ...
The plaintiffs in In re Omnicom Group, Inc., Secs. Litig., 2007 U.S. Dist. LEXIS 60298 (S.D.N.Y. Aug. 10, 2007), moved to preclude the testimony of the defendants’ principal expert on judicial and equitable estoppel grounds, contending that he relied on…
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Unsigned Joint Defense Agreement — Privilege Upheld

The defendant in Carbajal v. Lincoln Ben. Life Ins. Co., 2007 U.S. Dist. LEXIS 86753 (D. Colo. Nov. 13, 2007), was one of three insurers covering the life of the plaintiff’s deceased husband. The insurance companies realized their common interest in the Carbajal disputes in or around December of 2003, and they sent written requests to each other for the ex ...
The defendant in Carbajal v. Lincoln Ben. Life Ins. Co., 2007 U.S. Dist. LEXIS 86753 (D. Colo. Nov. 13, 2007), was one of three insurers covering the life of the plaintiff’s deceased husband. The insurance companies realized their common interest…
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Auditor’s Communications with AICPA Unprotected

In the securities class action In re Winstar Commc’ns Secs. Litig., 2007 U.S. Dist. LEXIS 85134 (S.D.N.Y. Nov. 15, 2007), the shareholders sued Grant Thornton for its alleged participation in an accounting fraud that allegedly led to Winstar’s demise. Grant Thornton withheld post-litigation communications with the Quality Control Inquiry Committee (“QC ...
In the securities class action In re Winstar Commc’ns Secs. Litig., 2007 U.S. Dist. LEXIS 85134 (S.D.N.Y. Nov. 15, 2007), the shareholders sued Grant Thornton for its alleged participation in an accounting fraud that allegedly led to Winstar’s demise. Grant…
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Voiding and Enforcing International Arbitration Awards

A Colombian power company entered into a contract to sell power to a Colombian state-owned public utility, in TermoRio S.A. E.S.P. v. Electrificadora del Atlantico S.A. E.S.P., 487 F.3d 928 (D.C. Cir. 2007). The power company obtained a $60 million arbitration award in Colombia, which the utility successfully persuaded a Colombian court to overturn on the gr ...
A Colombian power company entered into a contract to sell power to a Colombian state-owned public utility, in TermoRio S.A. E.S.P. v. Electrificadora del Atlantico S.A. E.S.P., 487 F.3d 928 (D.C. Cir. 2007). The power company obtained a $60 million…
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How Do You Try a Class Action with 1.5 Million Plaintiffs?

The issue in Dukes v. Wal-Mart, 2007 U.S. App. LEXIS 28558 (9th Cir. Dec. 11, 2007), was the propriety of class certification. The defense challenged, among other things, the manageability of the case. One very legitimate question was exactly how you try a case with a plaintiff class numbering 1.5 million. The Ninth Circuit looked with favor at the though ...
The issue in Dukes v. Wal-Mart, 2007 U.S. App. LEXIS 28558 (9th Cir. Dec. 11, 2007), was the propriety of class certification. The defense challenged, among other things, the manageability of the case. One very legitimate question was exactly how…
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Disclosure to Outside Auditors Waives Attorney-Client Privilege But Not Work Product

The IRS summons in United States v. Textron, 507 F.Supp.2d 138 (D.R.I. 2007), sought the corporation’s tax accrual workpapers. Textron claimed that the workpapers were privileged because they included, inter alia, estimates by Textron’s counsel expressing, in percentages, their judgments regarding Textron’s chances of prevailing in any litigatio ...
The IRS summons in United States v. Textron, 507 F.Supp.2d 138 (D.R.I. 2007), sought the corporation’s tax accrual workpapers. Textron claimed that the workpapers were privileged because they included, inter alia, estimates by Textron’s counsel expressing, in percentages, their judgments…
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Attorney-Client Privilege — Counsel to Special Committee of Board — Waiver

Chancellor William B. Chandler III of the Delaware Court of Chancery ruled in Ryan v. Gifford, 2007 WL 4259557 (Del. Ch. Nov. 30, 2007), that the attorney-client privilege between a Special Committee of a Board of Directors and its outside counsel was waived by presentation of counsel’s report to the full Board. The Court held that the waiver extended to ...
Chancellor William B. Chandler III of the Delaware Court of Chancery ruled in Ryan v. Gifford, 2007 WL 4259557 (Del. Ch. Nov. 30, 2007), that the attorney-client privilege between a Special Committee of a Board of Directors and its outside…
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Federal Rule of Evidence 502 Introduced in Senate

Download associated file: S 2450.pdf  Federal Rule of Evidence 502 (Attorney-Client Privilege and Work Product; Limitations on Waiver) was introduced in the Senate on December 11, 2007 as The Leahy-Specter Bill. The text of the bill is attached. The floor statement of S ...
Download associated file: S 2450.pdf  Federal Rule of Evidence 502 (Attorney-Client Privilege and Work Product; Limitations on Waiver) was introduced in the Senate on December 11, 2007 as The Leahy-Specter Bill. The text of the bill is attached. The…
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Morgan Stanley Prevails Over Perelman in Florida Supreme Court

The intermediate appellate court's reversal of the $1.58 billion judgment entered against Morgan Stanley in Florida state court (see our post of March 23, 2007) is now final and unreviewable. The Florida Supreme Court voted 5-0 to reject Pereleman's attempt to reinstate the jury's verdict. The New York Times article reporting this development can be found at: htt ...
The intermediate appellate court’s reversal of the $1.58 billion judgment entered against Morgan Stanley in Florida state court (see our post of March 23, 2007) is now final and unreviewable. The Florida Supreme Court voted 5-0 to reject Pereleman’s attempt…
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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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