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

Federal Jurisdiction — § 1447(d) Bars Review of Order Declining Supplemental Jurisdiction under § 1367(c)

28 U.S.C. § 1447(d) provides that "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." Under Thermatron Prods., Inc. v. Hermansdorfer, 423 U.S. 336 (1976), the jurisdictional bar of § 1447(d) is limited to the grounds enumerated in § 1447(c). The question of first impression in HIF Bio, In ...
28 U.S.C. § 1447(d) provides that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.” Under Thermatron Prods., Inc. v. Hermansdorfer, 423 U.S. 336 (1976), the jurisdictional bar…
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Rule 11 — Duty to Inquire — Irrelevance of Signature — Duties of Local Counsel

A nightmare scenario. You are representing the foreign plaintiffs suing Texaco and Chevron for cancer caused by their Ecuadorian oil operations, and one your clients testify as follows: Q: Ms. [plaintiff], isn't it true that the first biopsy that was performed on you to see whether you had breast cancer was performed after April 2006? < ...
A nightmare scenario. You are representing the foreign plaintiffs suing Texaco and Chevron for cancer caused by their Ecuadorian oil operations, and one your clients testify as follows: Q: Ms. [plaintiff], isn’t it true that the first biopsy that was…
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H.R. 3013 — Attorney-Client Privilege Protection Act of 2007

The text of H.R. 3013, The Attorney-Client Privilege Protection Act of 2007, which was passed by House on Tuesday and which reverses the Holder/Thompson/McNulty Memo, can be found at http://thomas.loc.gov/cgi-bin/query/C?c110:./temp/~c1107lxBfV. You can keep track of the status of the legislation in the Senate and with the President at http://www.govtrack.us/congre ...
The text of H.R. 3013, The Attorney-Client Privilege Protection Act of 2007, which was passed by House on Tuesday and which reverses the Holder/Thompson/McNulty Memo, can be found at http://thomas.loc.gov/cgi-bin/query/C?c110:./temp/~c1107lxBfV. You can keep track of the status of the legislation…
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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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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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