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

Securities — Group Pleading Doctrine Abolished by PSLRA

The Third Circuit held in Winer Family Trust v. Queen, 2007 U.S. App. LEXIS 22620 (3d Cir. Sept. 24, 2007), that the group pleading doctrine did not survive enactment of the Private Securities Litigation Reform Act of 1995. (The group pleading doctrine is a judicial presumption that statements in group-published documents such as annual reports and press re ...
The Third Circuit held in Winer Family Trust v. Queen, 2007 U.S. App. LEXIS 22620 (3d Cir. Sept. 24, 2007), that the group pleading doctrine did not survive enactment of the Private Securities Litigation Reform Act of 1995. (The group…
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Grable & Guns

Most opinions published over the past six months have rejected attempts to remove based on Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308 (2005), but there are some colorful exceptions. Adventure Outdoors, Inc. v. Bloomberg, 2007 U.S. Dist. LEXIS 69631 (S.D. Ga. Sept. 20, 2007), is a defamation action filed in Georgia state cou ...
Most opinions published over the past six months have rejected attempts to remove based on Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308 (2005), but there are some colorful exceptions. Adventure Outdoors, Inc. v.…
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Sanctions — No Private Right of Action for Rule 11 / § 1927 Violation

The plaintiff in Kraus Indus. v. Moore, 2007 U.S. Dist. LEXIS 68869 (W.D. Pa. Sept. 18, 2007), filed a state court action for defamation, disparagement, and intentional infliction of emotional distress. After the defendants removed the action, the plaintiff filed an Amended Complaint, one count of which sought sanctions for the defendants’ alleged violatio ...
The plaintiff in Kraus Indus. v. Moore, 2007 U.S. Dist. LEXIS 68869 (W.D. Pa. Sept. 18, 2007), filed a state court action for defamation, disparagement, and intentional infliction of emotional distress. After the defendants removed the action, the plaintiff filed…
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Accountant Malpractice — Annual Audits — Continuous Representation Doctrine

The lawsuit against PricewaterhouseCoopers was filed more than three years after PwC had concluded its audit work and rendered its opinion for the year in question. The issue for the New York Court of Appeals in Williamson v. PricewaterhouseCoopers LLP, 9 N.Y.3d 1, 840 N.Y.S.2d 730 (2007), was whether PwC’s work on subsequent audits for subsequent years to ...
The lawsuit against PricewaterhouseCoopers was filed more than three years after PwC had concluded its audit work and rendered its opinion for the year in question. The issue for the New York Court of Appeals in Williamson v. PricewaterhouseCoopers LLP,…
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SLUSA — Right to Amend Complaint after Removal to Plead Around SLUSA

The question of first impression in the Ninth Circuit in U.S. Mortgage, Inc. v. Saxton, 494 F.3d 833 (9th Cir. 2007) was whether SLUSA allows amendment of the complaint in a removed action to plead around SLUSA and federal jurisdiction. The Eighth and Eleventh Circuits have refused to allow a plaintiff class to amend its way around a SLUSA dismissal where t ...
The question of first impression in the Ninth Circuit in U.S. Mortgage, Inc. v. Saxton, 494 F.3d 833 (9th Cir. 2007) was whether SLUSA allows amendment of the complaint in a removed action to plead around SLUSA and federal jurisdiction.…
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Expert Spoliation — Ghostwriting Expert Report

The defendants in Transcontinental Gas Pipeline Corp. v. Sociйtй d’Exploitation du Solitarie, 2007 U.S. Dist. LEXIS 67691 (E.D. La. Sept. 11, 2007), admitted that they had damaged the plaintiff’s pipeline with an anchor but sought to exclude the plaintiff’s experts’ testimony as to the extent to of the damage. First, defendants argued that the plai ...
The defendants in Transcontinental Gas Pipeline Corp. v. Sociйtй d’Exploitation du Solitarie, 2007 U.S. Dist. LEXIS 67691 (E.D. La. Sept. 11, 2007), admitted that they had damaged the plaintiff’s pipeline with an anchor but sought to exclude the plaintiff’s experts’…
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Federal Jurisdiction — Grable

The massive Average Wholesale Price multidistrict litigation (MDL) against pharmaceutical manufacturers is pending in the District of Massachusetts. Last year, District Judge Patti B. Saris denied the State of Arizona's motion to remand its case because the claims on behalf of Medicare Part B beneficiaries raised a substantial federal issue creating federal jurisdi ...
The massive Average Wholesale Price multidistrict litigation (MDL) against pharmaceutical manufacturers is pending in the District of Massachusetts. Last year, District Judge Patti B. Saris denied the State of Arizona’s motion to remand its case because the claims on behalf…
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Email Admissibility — Summary Judgment Admissibility Standards — Government Documents

From Wells v. Xpedx, 2007 U.S. Dist. LEXIS 67000 (M.D. Fla. Sept. 11, 2007), an age discrimination (wrongful discharge) action: 1. Burden on Non-Moving Party to Produce Admissible Evidence. ‛Evidence produced by a nonmoving party to avoid summary judgment need not be in admissible form if it could be reduced to admissible form a ...
From Wells v. Xpedx, 2007 U.S. Dist. LEXIS 67000 (M.D. Fla. Sept. 11, 2007), an age discrimination (wrongful discharge) action: 1. Burden on Non-Moving Party to Produce Admissible Evidence. ‛Evidence produced by a nonmoving party to avoid summary judgment need…
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Electronic Discovery — Vendor-Created Quagmire

The Federal Rules of Civil Procedure and the Zubulake-driven case law frequently require parties to retain forensic electronic discovery experts. These vendors, though, can create nightmares (which, frankly, we’re quite capable of doing without expert assistance). In PSEG Power New York, Inc. v. Alberici Constructors, Inc., 2007 U.S. Dist. LEXIS 66 ...
The Federal Rules of Civil Procedure and the Zubulake-driven case law frequently require parties to retain forensic electronic discovery experts. These vendors, though, can create nightmares (which, frankly, we’re quite capable of doing without expert assistance). In PSEG Power New…
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Spoliation — Standards for, and Impact of, Adverse Inference Instruction

The Eleventh Circuit’s standards for an adverse inference instruction are set forth in Judge B. Avant Edenfield’s opinion in Sapeu v. Bland, 2007 U.S. Dist. LEXIS 66606 (S.D. Ga. Sept. 10, 2007): [The] court must consider the following factors: (1) whether plaintiff was prejudiced as a result of the destruction of evidence; (2) whether ...
The Eleventh Circuit’s standards for an adverse inference instruction are set forth in Judge B. Avant Edenfield’s opinion in Sapeu v. Bland, 2007 U.S. Dist. LEXIS 66606 (S.D. Ga. Sept. 10, 2007): [The] court must consider the following factors: (1)…
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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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