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

Privilege — Subject Matter Waiver — Advice of Counsel Defense

If enacted by Congress, Federal Rule of Evidence 502 will define the scope of subject matter waiver of both attorney-client privilege and work product protection. Unless and until that happens, the common law governs. One traditional event triggering a waiver is a party’s reliance on advice of counsel as a defense. The Federal Circuit explored the scope of such ...
If enacted by Congress, Federal Rule of Evidence 502 will define the scope of subject matter waiver of both attorney-client privilege and work product protection. Unless and until that happens, the common law governs. One traditional event triggering a waiver…
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Securities — Scienter — Conscious Avoidance Charge

It is difficult to get a civil securities fraud case to trial, but there are gems to pluck from the criminal cases, which are tried. In criminal securities fraud prosecutions, a conscious avoidance instruction "permits a jury to find that a defendant had culpable knowledge of a fact when the evidence shows that the defendant intentionally avoided confirming the fac ...
It is difficult to get a civil securities fraud case to trial, but there are gems to pluck from the criminal cases, which are tried. In criminal securities fraud prosecutions, a conscious avoidance instruction “permits a jury to find that…
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Sanctions — Settlement Agreement as Witness Tampering — $1.1 Million Penalty

The plaintiff in Synergetics, Inc. v. Hurst, 2007 U.S. Dist. LEXIS 61286 (E.D. Mo. Aug. 21, 2007), had meritorious claims against three former employees who, according to the judge and the jury, cheated the plaintiff and then lied about it under oath. The plaintiff brought two suits — the instant one against Hurst and McGowan, and a separate one against Lu ...
The plaintiff in Synergetics, Inc. v. Hurst, 2007 U.S. Dist. LEXIS 61286 (E.D. Mo. Aug. 21, 2007), had meritorious claims against three former employees who, according to the judge and the jury, cheated the plaintiff and then lied about it…
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RICO — State as ‛Enterprise“

It is well settled that a governmental entity may be a RICO plaintiff but not a RICO defendant, even though that means it is a ‛person“ for some purposes and not others. See Joseph, Civil RICO: A Definitive Guide § 11(A) (2d ed. 2000). In an appeal arising out of the conviction of former Illinois Governor George Ryan, United States v. Warner, 2 ...
It is well settled that a governmental entity may be a RICO plaintiff but not a RICO defendant, even though that means it is a ‛person“ for some purposes and not others. See Joseph, Civil RICO: A Definitive Guide §…
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Bankruptcy of Plaintiffs’ Lawyer as Dictating Disqualification

The plaintiffs' lawyer in In re Ski Train Fire in Kaprun Austria, 2007 U.S. Dist. LEXIS 60229 (S.D.N.Y. Aug. 16, 2007), filed Chapter 11 bankruptcy. He reported $ 13.6 million in outstanding debts. Among the listed creditors were two expert witnesses in the Ski Train case whom he owed, respectively, $75,000 and $3 million. The ‛single most sig ...
The plaintiffs’ lawyer in In re Ski Train Fire in Kaprun Austria, 2007 U.S. Dist. LEXIS 60229 (S.D.N.Y. Aug. 16, 2007), filed Chapter 11 bankruptcy. He reported $ 13.6 million in outstanding debts. Among the listed creditors were two expert…
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Class Arbitration Waiver — Unconscionability — FAA Preemption

The issues in Shroyer v. New Cingular Wireless Servs., Inc., 2007 U.S. App. LEXIS 19560 (9th Cir. Aug. 17, 2007), were whether (i) a class arbitration waiver in Cingular's standard contract was unconscionable, and (ii) the Federal Arbitration Act preempted a holding that the waiver was unenforceable. The Ninth Circuit held the waiver to be unconscionable und ...
The issues in Shroyer v. New Cingular Wireless Servs., Inc., 2007 U.S. App. LEXIS 19560 (9th Cir. Aug. 17, 2007), were whether (i) a class arbitration waiver in Cingular’s standard contract was unconscionable, and (ii) the Federal Arbitration Act preempted…
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Subpoenas — Appealability to Protect Privilege Absent Contempt

A non-party lawyer objected on privilege grounds to a subpoena compelling him to produce documents and appear at a deposition. The district court ordered compliance with the subpoena, and designated the order (more precisely, the salient parts of the order dealing with this lawyer) a ‛final order“ within Fed. R. Civ. P. 54(b). The lawyer appealed. The Second ...
A non-party lawyer objected on privilege grounds to a subpoena compelling him to produce documents and appear at a deposition. The district court ordered compliance with the subpoena, and designated the order (more precisely, the salient parts of the order…
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Derivative Actions — State Court Dismissal on Futility Grounds as Res Judicata in Federal Court

There were competing state and federal court derivative actions, and the state court complaint was dismissed failure to plead either demand on the corporation’s board of directors or the futility of such a demand. That generated the question in In re Sonus Networks, Inc., 2007 U.S. App. LEXIS 19471 (1st Cir. Aug. 16, 2007), as to whether the state court di ...
There were competing state and federal court derivative actions, and the state court complaint was dismissed failure to plead either demand on the corporation’s board of directors or the futility of such a demand. That generated the question in In…
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Declaratory Judgment — Double Contingency — Rule 12(b)(1) — Subject Matter Jurisdiction

The plaintiff in Reichhold, Inc. v. United States Metals Ref. Co., 2007 U.S. Dist. LEXIS 59274 (D.N.J. 2007), sued the defendants for CERCLA violations seeking a declaratory judgment finding defendants liable for future cleanup costs. The defendants moved to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a provision under which ‛no ...
The plaintiff in Reichhold, Inc. v. United States Metals Ref. Co., 2007 U.S. Dist. LEXIS 59274 (D.N.J. 2007), sued the defendants for CERCLA violations seeking a declaratory judgment finding defendants liable for future cleanup costs. The defendants moved to dismiss…
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28 U.S.C. § 1292(b) — Issue of First Impression Is Not Enough

The district court may certify an otherwise non-final order to permit an interlocutory appeal under 28 U.S.C. § 1292(b) when its decision (1) involves a controlling question of law, (2) there is a substantial ground for difference of opinion about the controlling question, and (3) an immediate appeal would materially advance the ultimate termination of the litigati ...
The district court may certify an otherwise non-final order to permit an interlocutory appeal under 28 U.S.C. § 1292(b) when its decision (1) involves a controlling question of law, (2) there is a substantial ground for difference of opinion about…
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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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