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

Rule 11 Sanctions — The Hidden Safe Harbor — Surviving Summary Judgment

The 21-day safe harbor to withdraw challenged papers stated in the text of Rule is well known. (It will go undercover on December 1, when it skulks from Rule 11(c)(1)(A) into hiding in Rule 11(c)(2), evidently renumbered on the theory that research is too easy if the rule numbers remain the same.) But the 21-day safe harbor isn’t the only one adopted in 1993 — ...
The 21-day safe harbor to withdraw challenged papers stated in the text of Rule is well known. (It will go undercover on December 1, when it skulks from Rule 11(c)(1)(A) into hiding in Rule 11(c)(2), evidently renumbered on the theory…
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SLUSA and Reversed Incentives

Normally, corporate defendants sued for fraud seek, wherever possible, to have the fraud claims dismissed as redundant of contract claims, under such authorities as Bridgestone/Firestone, Inc. v. Recovery Credit Servs., Inc., 98 F.3d 13 (2d Cir. 1996) (in order to maintain a claim of fraud, a plaintiff must either ‛(i) demonstrate a legal duty separate from ...
Normally, corporate defendants sued for fraud seek, wherever possible, to have the fraud claims dismissed as redundant of contract claims, under such authorities as Bridgestone/Firestone, Inc. v. Recovery Credit Servs., Inc., 98 F.3d 13 (2d Cir. 1996) (in order to…
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International Perspectives on Electronic Evidence

On November 1, 2007, I participated in a panel discussion of electronic evidence at the 51st Congress of the Union Internationale des Avocats in Paris with lawyers from Germany, Switzerland and India. Both Germany and Switzerland only allow certain means of evidence. In Germany the accepted means of evidence are: • Interrogation of ...
On November 1, 2007, I participated in a panel discussion of electronic evidence at the 51st Congress of the Union Internationale des Avocats in Paris with lawyers from Germany, Switzerland and India. Both Germany and Switzerland only allow certain means…
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Sanctions — Extrajudicial Misconduct

The pro se defendant in BidZirk, LLC v. Smith, 2007 U.S. Dist. LEXIS 78481 (D.S.C. Oct. 22, 2007), was a blogger being sued for trademark infringement for improperly placing the plaintiff’s trademark on his blog. That isn’t the interesting part (the trademark claim was dismissed on summary judgment). In the course of the litigation, the plaintiff ...
The pro se defendant in BidZirk, LLC v. Smith, 2007 U.S. Dist. LEXIS 78481 (D.S.C. Oct. 22, 2007), was a blogger being sued for trademark infringement for improperly placing the plaintiff’s trademark on his blog. That isn’t the interesting part…
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Class Action Fairness Act — University of Pennsylvania Symposium

Professors Steve Burbank and Tobias Wolff have put together a stellar symposium on CAFA that will be held at the University of Pennsylvania Law School on Friday afternoon, November 30 and Saturday, December 1. Six panels will discuss the Class Action Fairness Act from six perspectives, based on a series of papers prepared for the symposium. Participants include Pe ...
Professors Steve Burbank and Tobias Wolff have put together a stellar symposium on CAFA that will be held at the University of Pennsylvania Law School on Friday afternoon, November 30 and Saturday, December 1. Six panels will discuss the Class…
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Preserving Arguments for/on Appeal — The Virtue of Incorporating Others’ Arguments

Defendant No. 1 in United States v. Williams, 2007 U.S. App. LEXIS 24725 (2d Cir. Oct 23, 2007), challenged on appeal the testimony of one of the government’s experts under Daubert and Fed.R.Evid. 702. He maintained, and the parties conceded, that it was he who had requested a Daubert hearing in the District Court to challenge the same expert ...
Defendant No. 1 in United States v. Williams, 2007 U.S. App. LEXIS 24725 (2d Cir. Oct 23, 2007), challenged on appeal the testimony of one of the government’s experts under Daubert and Fed.R.Evid. 702. He maintained, and the parties conceded,…
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Grable — State Law Expressly Incorporates Federal Statute

Five years ago, in Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002), the Ninth Circuit ruled that the answer to the question — "When a state statute incorporates a federal statute in defining a violation of state law, is a federal question thereby created?" — was ‛No.“ On October 23, 2007, the court addressed whether this answer has been changed by ...
Five years ago, in Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002), the Ninth Circuit ruled that the answer to the question — “When a state statute incorporates a federal statute in defining a violation of state law,…
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Expert Spoliation — What You Don’t Ask For, You Can’t Complain About

The defense expert in Physicians Dialysis Ventures, Inc. v. Griffith, 2007 U.S. Dist. LEXIS 78879 (D.N.J. Oct. 23, 2007), destroyed her notes of conversations she had with the defendant and defense counsel. She was thereafter asked to produce them by the plaintiff and, when she couldn’t, the plaintiff sought spoliation sanctions. Judge Jerome B. Simandle ...
The defense expert in Physicians Dialysis Ventures, Inc. v. Griffith, 2007 U.S. Dist. LEXIS 78879 (D.N.J. Oct. 23, 2007), destroyed her notes of conversations she had with the defendant and defense counsel. She was thereafter asked to produce them by…
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Privilege and Work Product — Waiver — Qui Tam Actions

When privileged or work product information is exchanged between the relator (the original private plaintiff) and the government in an action brought under the False Claims Act, 31 U.S.C. § 3729 ff., neither privilege nor work product is waived — at least if the material is exchanged prior to a decision by the government to decline to prosecute the action ...
When privileged or work product information is exchanged between the relator (the original private plaintiff) and the government in an action brought under the False Claims Act, 31 U.S.C. § 3729 ff., neither privilege nor work product is waived —…
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Removal — Class Action Fairness Act — Plaintiff Turned Counterclaim Defendant

The issue of first impression in CitiFinancial, Inc. v. Lightner, 2007 U.S. Dist. LEXIS 78647 (N.D. W.Va. Oct. 22, 2007), was whether the Class Action Fairness Act overturned pre-CAFA precedent barring a plaintiff from removing when it becomes a counterclaim defendant where the counterclaim falls within CAFA. The Court’s answer was No. The plaint ...
The issue of first impression in CitiFinancial, Inc. v. Lightner, 2007 U.S. Dist. LEXIS 78647 (N.D. W.Va. Oct. 22, 2007), was whether the Class Action Fairness Act overturned pre-CAFA precedent barring a plaintiff from removing when it becomes a counterclaim…
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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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