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

Contractual Spoliation

A contractual duty to preserve data may suffice to trigger spoliation sanctions if the data are destroyed in violation of the contract -- at least if another party to the contract is pursuing the claim. The Asset Purchase Agreement in In re: Quintus Corp. (Avaya, Inc. v. Gwynne), 2007 U.S. Dist. LEXIS 87628 (D. Del. Nov. 29, 2007), required the purchaser to ...
A contractual duty to preserve data may suffice to trigger spoliation sanctions if the data are destroyed in violation of the contract — at least if another party to the contract is pursuing the claim. The Asset Purchase Agreement in…
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Rule 502 in Congress

Federal Rule of Evidence 502 (Attorney-Client Privilege and Work Product; Limitations on Waiver) has a real prospect of being enacted in this session of Congress, which ends in mid-December. The Rule under consideration is substantially identical to that passed by the Advisory Committeee. ...
Federal Rule of Evidence 502 (Attorney-Client Privilege and Work Product; Limitations on Waiver) has a real prospect of being enacted in this session of Congress, which ends in mid-December. The Rule under consideration is substantially identical to that passed by…
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Restyled Federal Rules of Civil Procedure Go Into Effect Today

Download associated file: Restyled Fed R Civ P.pdf  Restyling the Federal Rules of Civil Procedure is like wrapping drapes around nude statutes or painting abs on the Venus de Milo. Nothing substantive changes but someone prefers the look. The new look — the text of t ...
Download associated file: Restyled Fed R Civ P.pdf  Restyling the Federal Rules of Civil Procedure is like wrapping drapes around nude statutes or painting abs on the Venus de Milo. Nothing substantive changes but someone prefers the look. The…
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Pleading in the Alternative — Judicial Admissions

Alternative & Inconsistent Pleading. Alternative and inconsistent pleading requires that you plead in the alternative. Mere inconsistency can be fatal. As the Ninth Circuit put it in Maloney v. Scottsdale Ins. Co., 2007 U.S. App. LEXIS 26639 (9th Cir. Nov. 14, 2007): “The Federal Rules of Civil Procedure allow parties to plead inconsistent factua ...
Alternative & Inconsistent Pleading. Alternative and inconsistent pleading requires that you plead in the alternative. Mere inconsistency can be fatal. As the Ninth Circuit put it in Maloney v. Scottsdale Ins. Co., 2007 U.S. App. LEXIS 26639 (9th Cir. Nov.…
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Final Judgments; Appealability; Fraudulent Concealment

If an action is dismissed in part with prejudice and in part without prejudice, can it be final for appeal purposes within 28 U.S.C. § 1291? Generally, the answer is “No” because the plaintiff is free to refile by amending (Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064 (4th Cir. 1993)). But the answer was “Yes” in GO Computer ...
If an action is dismissed in part with prejudice and in part without prejudice, can it be final for appeal purposes within 28 U.S.C. § 1291? Generally, the answer is “No” because the plaintiff is free to refile by amending…
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Work Product Protection — Non-Party’s Standing to Assert

Plaintiff One sues defendant. Plaintiff One then subpoenas the litigation consultant retained by Plaintiff Two, who also has a claim against the same defendant. As observed by Magistrate Judge Mikel Williams, “The literal language of the Rule [26(b)(3)] protects materials prepared for any litigation or trial only if they were prepared by or for a party to the su ...
Plaintiff One sues defendant. Plaintiff One then subpoenas the litigation consultant retained by Plaintiff Two, who also has a claim against the same defendant. As observed by Magistrate Judge Mikel Williams, “The literal language of the Rule [26(b)(3)] protects materials…
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Spoliation on Summary Judgment

Typically, we think about spoliation and its utility at trial — specifically, the impact of an adverse inference instruction. The issue in Hamilton v. Mount Sinai Hospital, 2007 U.S. Dist. LEXIS 85593 (S.D.N.Y. Nov. 21, 2007), was the impact of the spoliation inference at summary judgment. Magistrate Judge Gabriel W. Gorenstein summarized Second Circuit l ...
Typically, we think about spoliation and its utility at trial — specifically, the impact of an adverse inference instruction. The issue in Hamilton v. Mount Sinai Hospital, 2007 U.S. Dist. LEXIS 85593 (S.D.N.Y. Nov. 21, 2007), was the impact of…
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RICO Enterprise — Is an Ascertainable Structure Required?

Yes: 3d Circuit, 4th Circuit, 8th Circuit, and 10th Circuit No: 1st Circuit, 2d Circuit, 9th Circuit, 11th Circuit, and D.C. Circuit Sort of: 7th Circuit As Justice Scalia once observed about the Supreme Court's enterprise test: "This seems to me about as helpful to the conduct of [the lower courts'] as 'life is a fo ...
Yes: 3d Circuit, 4th Circuit, 8th Circuit, and 10th Circuit No: 1st Circuit, 2d Circuit, 9th Circuit, 11th Circuit, and D.C. Circuit Sort of: 7th Circuit As Justice Scalia once observed about the Supreme Court’s enterprise test: “This seems to…
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Spoliation — Mere Disassembly ≠ Spoliation

The plaintiff was injured by an allegedly defective power saw in Victor v. Makita USA, Inc.” 2007 U.S. Dist. LEXIS 83427 (M.D. Fla. Nov. 9, 2007). His counsel sent it to an expert, who disassembled the saw, preserving all components and photographing his process and findings. The defendant contended that disassembly of the allegedly defective product in ...
The plaintiff was injured by an allegedly defective power saw in Victor v. Makita USA, Inc.” 2007 U.S. Dist. LEXIS 83427 (M.D. Fla. Nov. 9, 2007). His counsel sent it to an expert, who disassembled the saw, preserving all components…
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What Does Twombly Really Mean?

In a masterful understatement, the Fourth Circuit observed this week that, “[i]n the wake of Twombly, courts and commentators have been grappling with the decision's meaning and reach." Anderson v. Sara Lee Corp., 2007 U.S. App. LEXIS 26723 (4th Cir. Nov. 19, 2007). According to the Seventh Circuit: “Taking Erickson and Twombly together, ...
In a masterful understatement, the Fourth Circuit observed this week that, “[i]n the wake of Twombly, courts and commentators have been grappling with the decision’s meaning and reach.” Anderson v. Sara Lee Corp., 2007 U.S. App. LEXIS 26723 (4th Cir.…
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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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