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

Increasing Appellate Bond for Frivolous Appeal

The general rule is that a district judge cannot sanction or threaten to penalize a lawyer who is planning to file an appeal that the district judge considers frivolous. If a frivolous or bad faith appeal is taken, that is a matter for the court of appeals. Joseph, Sanctions: The Federal Law of Litigation Abuse §§ 17(A)(15), 23(A)(4) (3d ed. Supp. 2007). The Ni ...
The general rule is that a district judge cannot sanction or threaten to penalize a lawyer who is planning to file an appeal that the district judge considers frivolous. If a frivolous or bad faith appeal is taken, that is…
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Statutory Construction — Deferral to Agency Interpretation

The question in Ballanger v. Johanns, 495 F.3d 866 (8th Cir. 2007), was technical and of no inherent interest (to me): whether the removal of woody vegetation from a wetland, without more, constitutes a "manipulat[ion]" of a wetland for purposes of 16 U.S.C. § 3801(a)(6)(A) or whether the U.S. Department of Agriculture had misconstrued the statute and was ...
The question in Ballanger v. Johanns, 495 F.3d 866 (8th Cir. 2007), was technical and of no inherent interest (to me): whether the removal of woody vegetation from a wetland, without more, constitutes a “manipulat[ion]” of a wetland for purposes…
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Disclosure of Draft = Waiver of Privilege as to Final

The plaintiff in Masi v. DTE Coke Operations, LLC, 2007 U.S. Dist. LEXIS 72990 (E.D. Mich. Oct. 1, 2007), prepared a factual summary he called "My Story" that he delivered to his counsel to assist in the prosecution of his case. When discovery demands were served, plaintiff's counsel asserted privilege. But the plaintiff had provided a first draft to his un ...
The plaintiff in Masi v. DTE Coke Operations, LLC, 2007 U.S. Dist. LEXIS 72990 (E.D. Mich. Oct. 1, 2007), prepared a factual summary he called “My Story” that he delivered to his counsel to assist in the prosecution of his…
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When Does an Email Satisfy the Statute of Frauds?

New York’s statute of frauds (General Obligations Law § 5-701) requires a signature: a. Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking: 1. By its terms is ...
New York’s statute of frauds (General Obligations Law § 5-701) requires a signature: a. Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged…
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Rule 11 Sanctions — Relationship between Merits and Improper Purpose

Because it determined the that District Court had improperly granted summary judgment sua sponte for the defendant, the Federal Circuit reversed on the merits in Eon-Net, LP v. Flagstar Bancorp, 2007 U.S. App. LEXIS 22832 (Fed. Cir. Sept. 27, 2007). That left the Court of Appeals with the Rule 11 sanctions that the District Court had imposed on the pl ...
Because it determined the that District Court had improperly granted summary judgment sua sponte for the defendant, the Federal Circuit reversed on the merits in Eon-Net, LP v. Flagstar Bancorp, 2007 U.S. App. LEXIS 22832 (Fed. Cir. Sept. 27, 2007).…
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Jury Trial Waiver — Rule 16(f) Sanctions for Innocent Discovery Errors

On September 18, 2007, the Third Circuit affirmed the defense verdict in the multibillion-dollar lawsuit brought by Kirk Kerkorian against DaimlerChrysler alleging that the merger between Chrysler and Daimler-Benz was falsely billed a ‛merger of equals“ but was really a takeover by Daimler of the U.S. automaker. Tracinda Corp. v. DaimlerChrysler AG, 200 ...
On September 18, 2007, the Third Circuit affirmed the defense verdict in the multibillion-dollar lawsuit brought by Kirk Kerkorian against DaimlerChrysler alleging that the merger between Chrysler and Daimler-Benz was falsely billed a ‛merger of equals“ but was really a…
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Appellate Procedure — Daubert and Sanctions

Two interesting holdings from Burlington No. & S.F. Rwy. v. Grant, 2007 U.S. App. LEXIS 22680 (10th Cir. Sept. 24, 2007): 1. Daubert: Unexplained Exclusion of Expert Testimony. The district court had excluded the plaintiff’s expert testimony but failed to make any supporting findings. The plaintiff sought reversal on t ...
Two interesting holdings from Burlington No. & S.F. Rwy. v. Grant, 2007 U.S. App. LEXIS 22680 (10th Cir. Sept. 24, 2007): 1. Daubert: Unexplained Exclusion of Expert Testimony. The district court had excluded the plaintiff’s expert testimony but failed to…
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Arbitration — Reversible Error to Dismiss Sua Sponte Based on Arbitration Clause

The parties in Automobile Mechanics Local 701 Welfare & Pension Funds v. Vanguard Car Rental USA, Inc., 2007 U.S. App. LEXIS 22217 (7th Cir. Sept. 18, 2007), filed cross-motions for summary judgment. Rather than addressing those motions, the district court dismissed the suit sua sponte, because it concluded that the dispute had to be arbitrated. Both ...
The parties in Automobile Mechanics Local 701 Welfare & Pension Funds v. Vanguard Car Rental USA, Inc., 2007 U.S. App. LEXIS 22217 (7th Cir. Sept. 18, 2007), filed cross-motions for summary judgment. Rather than addressing those motions, the district court…
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Spoliation — State vs. Federal Law

As noted in our post of July 18, 2007, there is a split in the decisions as to whether, in a diversity case in federal court, state or federal law governs punishment for spoliation (specifically, spoliation as a procedural dereliction; obviously, state law governs to the extent that state law recognizes an independent cause of action sounding in tort for spoliation) ...
As noted in our post of July 18, 2007, there is a split in the decisions as to whether, in a diversity case in federal court, state or federal law governs punishment for spoliation (specifically, spoliation as a procedural dereliction;…
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Sanctions — 28 U.S.C. § 1927 — Relentless Wrongheadedness

The litany of misbehavior for which § 1927 sanctions were imposed in Cambridge Toxicology Group Inc. v. Exnicios, 495 F.3d 169 (5th Cir. 2007) was impressive: (1) [Plaintiff’s counsel] was denied leave to amend four times; (2) to avoid the effect of these earlier denials, [plaintiff’s counsel] filed a second case in an attempt to add ...
The litany of misbehavior for which § 1927 sanctions were imposed in Cambridge Toxicology Group Inc. v. Exnicios, 495 F.3d 169 (5th Cir. 2007) was impressive: (1) [Plaintiff’s counsel] was denied leave to amend four times; (2) to avoid the…
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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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