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

Pleading — Incorporation by Reference and Rules 8(a)(2) & 10(c)

It is not often that a civil RICO complaint brought by the federal government against a union with a checkered history is dismissed on pleading grounds, but that is what happened in Brooklyn Federal Court on November 1, 2007. The Government’s Amended Complaint in United States v. Int’l Longshoremen’s Ass’n, 2007 U.S. Dist. LEXIS 80924 (E.D.N.Y. Nov. ...
It is not often that a civil RICO complaint brought by the federal government against a union with a checkered history is dismissed on pleading grounds, but that is what happened in Brooklyn Federal Court on November 1, 2007. The…
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RICO Developments 2007

A new article summarizing significant case law developments this year under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 ff., has been posted on the Recent Articles page (title: RICO Developments 2007). It does not address the Supreme Court' s opinion in Wilkie v. Robbins, 127 S. Ct. 2588 (2007), because that is really a Hobbs A ...
A new article summarizing significant case law developments this year under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 ff., has been posted on the Recent Articles page (title: RICO Developments 2007). It does not address the…
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‛Spoliation“ by Not Creating Evidence Despite Duty to Do So

If you call it ‛spoliation“ when someone destroys or fails to preserve evidence, what do you call it when someone ignores a duty to create evidence and, by doing so, impedes the factfinding process? That was the question for Magistrate Judge James Orenstein in Ramirez v. Pride Devel. & Constr. Corp. 244 F.R.D. 162 (E.D.N.Y. 2007). Answer: Equally sanc ...
If you call it ‛spoliation“ when someone destroys or fails to preserve evidence, what do you call it when someone ignores a duty to create evidence and, by doing so, impedes the factfinding process? That was the question for Magistrate…
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Twombly Count

As of November 10, 2007, less than six months after the Supreme Court’s decision in Bell Atlantic v. Twombly, 127 S. Ct. 1955 (2007), a LEXIS search reveals that the opinion has been cited in more than 2,000 cases. Rarely, I suspect, to the benefit of the plaintiff. ...
As of November 10, 2007, less than six months after the Supreme Court’s decision in Bell Atlantic v. Twombly, 127 S. Ct. 1955 (2007), a LEXIS search reveals that the opinion has been cited in more than 2,000 cases. Rarely,…
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RICO Causation

The plaintiff in Globe Wholesale Tobacco v. WWT, 2007 U.S. Dist. LEXIS 72656 (S.D.N.Y. Sept. 28, 2007), was a wholesale tobacco dealer whose RICO claim against a competitor was premised on the fact that the competitor was selling contraband cigarettes with phony tax stamps while the plaintiff was obeying the law and selling only more expensive, fully-taxed, l ...
The plaintiff in Globe Wholesale Tobacco v. WWT, 2007 U.S. Dist. LEXIS 72656 (S.D.N.Y. Sept. 28, 2007), was a wholesale tobacco dealer whose RICO claim against a competitor was premised on the fact that the competitor was selling contraband cigarettes…
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RICO — Injury to Business or Property — Loss of a Cause of Action

It is well-settled that personal injuries are not injuries to "business or property" within 18 U.S.C. 1964(c). What about a chose in action for personal injuries? In an unpublished opinion (whatever vitality that distinction enjoys in the E-Age) rendered on November 6, 2007, Magnum v. Archdiocese of Philadelphia, 2007 U.S. App. LEXIS 25812 (3d Cir. Nov. 6, ...
It is well-settled that personal injuries are not injuries to “business or property” within 18 U.S.C. 1964(c). What about a chose in action for personal injuries? In an unpublished opinion (whatever vitality that distinction enjoys in the E-Age) rendered on…
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Attorney-Client Privilege — Email — Waiver by Use of Another’s Computer

Our June 3, 2007 post reported a decision in which transmittal of attorney-client privileged communications via a fiancй’s computer was held not to effect a waiver of privilege. Use of a computer at work can be another matter. In Scott v. Beth Israel Med. Ctr., 2007 N.Y. Misc. LEXIS 7114 (Sup. Ct. N.Y. Cty. Oct. 17, 2007), the plaintiff, a physician on ...
Our June 3, 2007 post reported a decision in which transmittal of attorney-client privileged communications via a fiancй’s computer was held not to effect a waiver of privilege. Use of a computer at work can be another matter. In Scott…
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Attorney-Client Privilege — Common Interest Privilege — Tax Practitioner’s Privilege

The Seventh Circuit in U.S. v. BDO Seidman, LLP, 492 F.3d 806 (7th Cir. 2007), was dealing with the same tax shelter strategy that brought about the demise of the law firm of Jenkens & Gilchrest. The IRS was seeking to enforce administrative subpoenas against the accounting firm of BDO Seidman, which defended in part on the ground that certain of the docume ...
The Seventh Circuit in U.S. v. BDO Seidman, LLP, 492 F.3d 806 (7th Cir. 2007), was dealing with the same tax shelter strategy that brought about the demise of the law firm of Jenkens & Gilchrest. The IRS was seeking…
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Expert Evidence — Historians & Daubert

The question in State of N.Y. v. Shinnecock Indian Nation, 2007 U.S. Dist. LEXIS 80443 (E.D.N.Y. Oct. 30, 2007), was whether New York state authorities were entitled to an injunction preventing the Shinnecock Indian Nation from constructing a casino in Suffolk County. A potentially dispositive legal issue was whether aboriginal title to the property held by ...
The question in State of N.Y. v. Shinnecock Indian Nation, 2007 U.S. Dist. LEXIS 80443 (E.D.N.Y. Oct. 30, 2007), was whether New York state authorities were entitled to an injunction preventing the Shinnecock Indian Nation from constructing a casino in…
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Reply Briefs — Why Do We Even Bother?

Did the plaintiff act sanctionably in Liberty Sav. Bank v. GE Capital Corp., 236 Fed. Appx. 353, 2007 U.S. App. LEXIS 12606 (10th Cir. 2007)? The District Court didn’t find any specifics in defendant General Electric’s moving brief and that ended the matter. In denying GE's Rule 11 motion, the District Court wrote: In support of it ...
Did the plaintiff act sanctionably in Liberty Sav. Bank v. GE Capital Corp., 236 Fed. Appx. 353, 2007 U.S. App. LEXIS 12606 (10th Cir. 2007)? The District Court didn’t find any specifics in defendant General Electric’s moving brief and that…
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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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