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

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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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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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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