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

Psychotherapist-Patient Privilege: Waiver

Does the plaintiff in an employment discrimination action waive the psychotherapist-privilege by alleging serious medical problems — here, cardiovascular disease, hypertension, gout, and obstructive sleep apnea — with a history of depression but does not specifically allege psychological injuries? Not under the D.C. Circuit’s opinion in Koch v. SEC, 48 ...
Does the plaintiff in an employment discrimination action waive the psychotherapist-privilege by alleging serious medical problems — here, cardiovascular disease, hypertension, gout, and obstructive sleep apnea — with a history of depression but does not specifically allege psychological injuries? Not…
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Computer Crash as Spoliation (Part 3)

Whether a computer crash may constitute spoliation has been discussed in previous posts of June 29 and March 5, 2007. In this installment, the plaintiff in Orrell v. Motorcarparts of Am., Inc., 2007 U.S. Dist. LEXIS 89524 (W.D. N.C. Dec. 5, 2007), was once again not exactly pristine in preserving evidence. Among other things, she used the “Evidence Elimin ...
Whether a computer crash may constitute spoliation has been discussed in previous posts of June 29 and March 5, 2007. In this installment, the plaintiff in Orrell v. Motorcarparts of Am., Inc., 2007 U.S. Dist. LEXIS 89524 (W.D. N.C. Dec.…
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12(b)(6) Motions — Documents That May Be Considered

The critical issue on many motions to dismiss concerns just what extra-complaint documents the court may properly consider. Perhaps the most expansive formulation is employed in securities actions. The following is taken from Securities and Exchange Commission v. Power, 2007 U.S. Dist. LEXIS 87632 (S.D.N.Y. Nov. 27, 2007): On a motion t ...
The critical issue on many motions to dismiss concerns just what extra-complaint documents the court may properly consider. Perhaps the most expansive formulation is employed in securities actions. The following is taken from Securities and Exchange Commission v. Power, 2007…
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Sovereign Immunity — FDCPA

Can the federal government be sued under the Fair Debt Collection Practices Act for its efforts to collect student loans? Deciding this issue of first impression, the Fifth Circuit ruled negatively in Wagstaff v. U.S. Dep’t of Educ., 2007 U.S. App. LEXIS 28001 (Dec. 4, 2007), reasoning that the FDCPA lacks the prerequisite — a statutory provision “uneq ...
Can the federal government be sued under the Fair Debt Collection Practices Act for its efforts to collect student loans? Deciding this issue of first impression, the Fifth Circuit ruled negatively in Wagstaff v. U.S. Dep’t of Educ., 2007 U.S.…
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Attorney-Client Privilege — Subject Matter Waiver & In-House Counsel — How Far Does Seagate Go?

Our post of August 27, 2007, reported the Federal Circuit’s holding in In re Seagate Tech., LLC, 2007 U.S. App. LEXIS 19768 (Fed. Cir. Aug. 20, 2007), that — in a case charging willful infringement — the subject matter waiver effected by asserting the defense of advice of counsel was limited to the advice of opinion counsel (the pre-litigation counsel o ...
Our post of August 27, 2007, reported the Federal Circuit’s holding in In re Seagate Tech., LLC, 2007 U.S. App. LEXIS 19768 (Fed. Cir. Aug. 20, 2007), that — in a case charging willful infringement — the subject matter waiver…
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Senate Passes Bill to Allow Televising of Supreme Court Proceedings

Download associated file: S 344.pdf  On December 6, 2007, the Senate Judiciary Committee passed S.344 -- a bill to permit the televising of Supreme Court proceedings. It is attached. ...
Download associated file: S 344.pdf  On December 6, 2007, the Senate Judiciary Committee passed S.344 — a bill to permit the televising of Supreme Court proceedings. It is attached.…
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The Profession — The Wolters Sanctions Case

District Judge Harold Baer, Jr.’s opinion in Wolters Kluwer Fin. Servs. Inc. v. Scivantage, 2007 U.S. Dist. LEXIS 88052 (S.D.N.Y. Nov. 29, 2007), is worth reading. The findings are extensive but it is the analytical framework that merits attention. It is refreshing to abandon cynicism about the profession and to focus every once in a while on what the pra ...
District Judge Harold Baer, Jr.’s opinion in Wolters Kluwer Fin. Servs. Inc. v. Scivantage, 2007 U.S. Dist. LEXIS 88052 (S.D.N.Y. Nov. 29, 2007), is worth reading. The findings are extensive but it is the analytical framework that merits attention. It…
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Qui Tam Actions — Sanctions

The issue in United States v. Atkinson, 2007 U.S. Dist. LEXIS 88435 (E.D. Pa. Dec. 3, 2007), was the appropriateness of sanctions under the statutory sanctions provision of the False Claims Act, 31 U.S.C. § 3730(d)(4). The prevailing defendants requested an award of attorneys' fees and expenses at the conclusion of 13 years of litigation. The language of ...
The issue in United States v. Atkinson, 2007 U.S. Dist. LEXIS 88435 (E.D. Pa. Dec. 3, 2007), was the appropriateness of sanctions under the statutory sanctions provision of the False Claims Act, 31 U.S.C. § 3730(d)(4). The prevailing defendants requested…
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Merely Notarizing Email Does Not Render It Non-Hearsay

The bank in Shah v.Flagstar Bank, 2007 Mich. App. LEXIS 2678 (Mich. App. Nov. 29, 2007), a foreclosure action, moved for summary judgment. In order to prove non-payment, it offered a letter it sent to homeowners referencing their non-payment, but the court excluded the letter as hearsay when it was offered to establish the homeowners' failure to make payment ...
The bank in Shah v.Flagstar Bank, 2007 Mich. App. LEXIS 2678 (Mich. App. Nov. 29, 2007), a foreclosure action, moved for summary judgment. In order to prove non-payment, it offered a letter it sent to homeowners referencing their non-payment, but…
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No Subject Matter Jurisdiction Required for Criminal Contempt

The Supreme Court has ruled that a federal court must have subject matter jurisdiction to impose civil contempt sanctions but not Rule 11 sanctions. Compare U.S. Catholic Conference v. Abortion Rights Mobilization, Inc., 87 U.S. 72, 76-80 (1988) (civil contempt) with Willy v. Coastal Corp., 503 U.S. 131 (1992) (Rule 11). What about criminal contempt ...
The Supreme Court has ruled that a federal court must have subject matter jurisdiction to impose civil contempt sanctions but not Rule 11 sanctions. Compare U.S. Catholic Conference v. Abortion Rights Mobilization, Inc., 87 U.S. 72, 76-80 (1988) (civil contempt)…
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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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