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

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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Expert Testimony on Class Certification

We have previously noted the apparently differing standards used in applying Daubert at the class certification stage. See our post of February 11, 2007, contrasting opinions of the Second and Ninth Circuits. The question in In re Katrina Canal Breaches Consol. Litig., 2007 U.S. Dist. LEXIS 82887 (E.D. La. Nov. 1, 2007), was whether expert testimony ...
We have previously noted the apparently differing standards used in applying Daubert at the class certification stage. See our post of February 11, 2007, contrasting opinions of the Second and Ninth Circuits. The question in In re Katrina Canal Breaches…
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Experts — Abusive Supplementation — Destruction of Notes Sometimes Forgiveable

The defendant's expert in Sandata Techs., Inc. v. Infocrossing, Inc., , 2007 U.S. Dist. LEXIS 85176 (S.D.N.Y. Nov. 16, 2007), prepared a supplemental report that had not been delivered to the other side prior to his deposition, but was handed across the table when it was referred to. Another voluminous supplemental report was delivered on the last day of exp ...
The defendant’s expert in Sandata Techs., Inc. v. Infocrossing, Inc., , 2007 U.S. Dist. LEXIS 85176 (S.D.N.Y. Nov. 16, 2007), prepared a supplemental report that had not been delivered to the other side prior to his deposition, but was handed…
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RICO — Damage to Business or Property

The four part standing test for a civil RICO claim under 18 U.S.C. § 1964(c) requires that (i) a person allege (ii) injury to (iii) business or property (iv) by reason of a violation of §1962(a), (b), (c) or (d). Therefore, if the plaintiff cannot allege injury to business or property, the plaintiff lacks standing to sue. It is well settled that personal injurie ...
The four part standing test for a civil RICO claim under 18 U.S.C. § 1964(c) requires that (i) a person allege (ii) injury to (iii) business or property (iv) by reason of a violation of §1962(a), (b), (c) or (d).…
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Expert Testimony as to the Infirmity of Eyewitness Testimony

Last Thursday, November 15, 2007, The Wall Street Journal reported at page D1 an "alarming" increase in the number of home invasion robberies. In a related development, in a recent a 2 to 1 decision, Ferensic v. Birkett, 501 F.3d 469 (6th Cir. 2007), the Sixth Circuit overturned an armed robbery and home invasion conviction because of the exclusion of ...
Last Thursday, November 15, 2007, The Wall Street Journal reported at page D1 an “alarming” increase in the number of home invasion robberies. In a related development, in a recent a 2 to 1 decision, Ferensic v. Birkett, 501 F.3d…
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Sanctions — Attorneys’ Fees — How Much Is Too Much?

The question in CS Stars LLC v. First AllAmerica Fin. Life Ins. Co., 2007 U.S. Dist. LEXIS 83738 (N.D. Ill. Nov. 13, 2007), was not whether sanctions should be awarded (that had been decided earlier) but whether the attorneys' fees request was too high. The sanctioned party argued that opposing counsel had over-lawyered the offense and that the request shou ...
The question in CS Stars LLC v. First AllAmerica Fin. Life Ins. Co., 2007 U.S. Dist. LEXIS 83738 (N.D. Ill. Nov. 13, 2007), was not whether sanctions should be awarded (that had been decided earlier) but whether the attorneys’ fees…
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Spoliation Factoid

‛The concept of spoliation derives from the Latin phrase ‘contra spolatorem omnia praesumuntur,’ meaning ‘all things presumed against the destroyer.’“ Perez v. La Dove, Inc., 964 So. 2d 777 (Fla. App. 2007) (citing Maria A. Losavio, Synthesis of Louisiana Law on Spoliation of Evidence-Compared to the Rest of the Country, Did We Handle it Corre ...
‛The concept of spoliation derives from the Latin phrase ‘contra spolatorem omnia praesumuntur,’ meaning ‘all things presumed against the destroyer.’“ Perez v. La Dove, Inc., 964 So. 2d 777 (Fla. App. 2007) (citing Maria A. Losavio, Synthesis of Louisiana Law…
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Discovery — Electronic Spoliation — Strategic Objections & Capitulation — Change of Witness Testimony at Deposition Break

A lot of discovery abuse was found by the Court in Wood Group Pressure Control, LP v. B&B Oilfield Servs., Inc., 2007 U.S. Dist. LEXIS 83708 (E.D. La. April 27, 2007). Useful points: 1. Degrading Data to Backup Tapes as Spoliation. Defense counsel never implemented a litigation hold. As a result, emails were deleted from activ ...
A lot of discovery abuse was found by the Court in Wood Group Pressure Control, LP v. B&B Oilfield Servs., Inc., 2007 U.S. Dist. LEXIS 83708 (E.D. La. April 27, 2007). Useful points: 1. Degrading Data to Backup Tapes as…
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Recent Posts

Today Is The 24th Anniversary Of The Firm

RICO Person vs. Enterprise: Subsidiary in Typical Corporate Structure Does Not Control Parent And Therefore Does Not Conduct Parent’s Affairs

Patently Frivolous RICO Complaint Fails to Confer Federal Question Jurisdiction — Subject to Rule 12(b)(1) for Lack of Subject Matter Jurisdiction

Inherent Power Sanctions — Dismissal — Abuse of Discretion Review Is “More Exacting” When Judge is “Accuser, Fact Finder and Sentencing Judge All in One” — Client Responsible for Her Lawyer’s Discovery Defalcations — No Need for Evidentiary Hearing When Sanctions Based Entirely on an Established Record — Lesser Sanctions Reasonably Determined to be Ineffective Given Record of Repeated Discovery Abuses

Inherent Power Sanction of Dismissal for Fraud on the Court — Fabrication of Evidence and Lying about It to the Court — 2-Part Test for Dismissal Sanction (Eleventh Circuit) — Whether Fraud on Court Was Committed for the Court, Not a Jury

New York Law Firm That Advised Florida Resident for Years Subject to Personal Jurisdiction in Florida, Thus Subject to 28 U.S.C. § 1782 in Florida — Court Cannot Amend Protective Order Following Dismissal of Case Unless the Order Retains Jurisdiction Post-Dismissal — Parties Can Enforce Stipulated Protective Order Post-Dismissal Through Breach of Contract Action

Rule 37(e)/Spoliation — “Intent to Deprive” Determined under the Preponderance of the Evidence Standard — Court May Make Determination Or Allow Jury to Do So — Lesser “Culpable Conduct” Standard of Residential Funding Continues to Apply in Second Circuit Outside ESI Context — Once Judge Has Definitively Ruled on the Record Denying A Requested Instruction, Counsel Is Not Required to Object to the Charge Again at Trial to Preserve Issue for Appeal

Rule 11 (9011) and Inherent Power Sanctions for “Unapologetic [Refusal to Apologize] Defiance” of Court’s Rules and Orders — Advising Client to Take Steps That Same Judge Had Told Lawyer Were Improper in Prior Case — Obstinate Recidivism — Silence upon Withdrawal of Motion As Rule 11 (9011) Violation (Noted But Not Addressed on Appeal)

Rule 37 Sanctions Properly Denied for Failure to Produce Documents That Were Already in the Requester’s Possession And Were Not Relevant to The Principal Issue in the Lawsuit — Experts/Daubert: Exclusion Appropriate Where Opinion Was Predicated on Erroneous Assumptions of Law

Supreme Court: Obtaining a Preliminary Injunction Does Not Render the Plaintiff a “Prevailing Party” Entitled to Attorney’s Fees — Must Win “Enduring Relief” On The Merits From A Judicial Order — Extraneous Events, Like Legislation, That Preserve The Outcome And Moot The Lawsuit Do Not Turn The Plaintiff into A Prevailing Party (Note, However, That A Defendant Need Not Obtain A Favorable Judgment On The Merits In Order To Be A “Prevailing Party”)

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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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