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 & Waiver: The Blurt Out

Plaintiff claims to have invented the advertising slogan "Hot n' Ready" for pizza and sued the defendant for appropriating it, in Pinnacle Pizza Co. v. Little Caesar Enters., 2007 U.S. Dist. LEXIS 488845 (D. S.D. July 3, 2007). At his deposition, the President of the plaintiff was asked if he had taken any steps to determine whether the phrase was already in ...
Plaintiff claims to have invented the advertising slogan “Hot n’ Ready” for pizza and sued the defendant for appropriating it, in Pinnacle Pizza Co. v. Little Caesar Enters., 2007 U.S. Dist. LEXIS 488845 (D. S.D. July 3, 2007). At his…
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Spoliation — State vs. Federal Law

In a federal diversity action, is spoliation an issue of state or federal law? That is an ambiguous question because ‛spoliation“ has multiple meanings. If there is a recognized state cause of action for spoliation, that type of spoliation is clearly substantive and the claim will be recognized in federal court. What about spoliation as a sanction? Given the ...
In a federal diversity action, is spoliation an issue of state or federal law? That is an ambiguous question because ‛spoliation“ has multiple meanings. If there is a recognized state cause of action for spoliation, that type of spoliation is…
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Res Judicata — Sua Sponte Invocation

There were parallel proceedings in state and federal court at the time the defense moved for dismissal pursuant to Fed.R.Civ.P. 12(b)(3) (improper venue) in Busch v. Robertson, 2007 U.S. Dist. LEXIS 40689 (N.D. Tex. June 5, 2007). While the motion was pending, judgment was entered in favor of two of the defendants in the state court proceeding. Because th ...
There were parallel proceedings in state and federal court at the time the defense moved for dismissal pursuant to Fed.R.Civ.P. 12(b)(3) (improper venue) in Busch v. Robertson, 2007 U.S. Dist. LEXIS 40689 (N.D. Tex. June 5, 2007). While the motion…
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Summary Judgment — “Admissible” Evidence — Internet/Email Evidence

Federal Rule of Civil Procedure 56 requires the submission of admissible evidence on summary judgment. Rule 56(e) provides that "[s]upporting and opposing affidavits shall be made on personal knowledge, [and] shall set forth such facts as would be admissible in evidence...." The cases consistently hold that inadmissible matter may not be considered on sum ...
Federal Rule of Civil Procedure 56 requires the submission of admissible evidence on summary judgment. Rule 56(e) provides that “[s]upporting and opposing affidavits shall be made on personal knowledge, [and] shall set forth such facts as would be admissible in…
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Civil RICO — Mail Fraud — Reliance / Inadequate Notice of Appeal

Must a civil RICO plaintiff alleging mail or wire fraud plead reliance by the plaintiff on the fraudulent representations? Two of the three judges on the panel in Brown v. Cassens Transport Co., 2007 U.S. App. LEXIS 16255 (6th Cir. July 10, 2007), thought the right answer was "No," yet the Court's ruling was "Yes." The panel considered that Sixth Circuit ...
Must a civil RICO plaintiff alleging mail or wire fraud plead reliance by the plaintiff on the fraudulent representations? Two of the three judges on the panel in Brown v. Cassens Transport Co., 2007 U.S. App. LEXIS 16255 (6th Cir.…
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KPMG Dismissal Decision

Download associated file: KPMG Dismissal Decision.pdf  Attached is Judge Lewis Kaplan's dismissal (entered today) of the indictment against 13 of the KPMG partners in the continuing tax shelter prosecution. ...
Download associated file: KPMG Dismissal Decision.pdf  Attached is Judge Lewis Kaplan’s dismissal (entered today) of the indictment against 13 of the KPMG partners in the continuing tax shelter prosecution.…
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Internet Evidence — Authentication

The defendant, a member of the armed forces, was tried and convicted of fraud against the United States and other offenses in United States v. Hernandez, 2007 CCA LEXIS 183 (U.S. Navy-Marine Corps Ct. Crim. App. June 12, 2007). To prove the defendant’s misuse of government telephony, the prosecution called a Chief Warrant Officer to testify that the defen ...
The defendant, a member of the armed forces, was tried and convicted of fraud against the United States and other offenses in United States v. Hernandez, 2007 CCA LEXIS 183 (U.S. Navy-Marine Corps Ct. Crim. App. June 12, 2007). To…
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Corporate Attorney-Client Privilege — Sale of Company — No Joint Defense for Seller and Bidder

Plaintiff sues defendant corporation for patent infringement, and defendant counterclaims for invalidity. Defendant corporation is then put up for bid by its shareholders. Bidders need to know about the litigation, which is material to the defendant’s financial position. Defendant’s litigation counsel make disclosures concerning the litigation to bidders. Pl ...
Plaintiff sues defendant corporation for patent infringement, and defendant counterclaims for invalidity. Defendant corporation is then put up for bid by its shareholders. Bidders need to know about the litigation, which is material to the defendant’s financial position. Defendant’s litigation…
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Arbitration and New York Convention — Requisite Specificity of Arbitration Clause

The American plaintiff in Apple & Eve, LLC v. Yantai North Andre Juice Co., 2007 U.S. Dist. LEXIS 44645 (S.D.N.Y. June 20, 2007), signed a contract with the Chinese defendant which contained the following arbitration clause: Arbitration: Any controversy or claim arising out of or relating to this contract or breach thereof, shall ...
The American plaintiff in Apple & Eve, LLC v. Yantai North Andre Juice Co., 2007 U.S. Dist. LEXIS 44645 (S.D.N.Y. June 20, 2007), signed a contract with the Chinese defendant which contained the following arbitration clause: Arbitration: Any controversy or…
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Attorney-Client Privilege — Dissolved Corporation’s Right to Assert Privilege

Our post of January 26, 2007, discussed whether, and in what circumstances, the corporate attorney-client privilege moves with the corporation's business. That issue was ultimately dispositive in City of Rialto v. U.S. Dep’t of Defense, 2007 U.S. Dist. LEXIS 48381 (C.D. Cal. May 25, 2007), but the threshold question was whether a dissolved corporation, onc ...
Our post of January 26, 2007, discussed whether, and in what circumstances, the corporate attorney-client privilege moves with the corporation’s business. That issue was ultimately dispositive in City of Rialto v. U.S. Dep’t of Defense, 2007 U.S. Dist. LEXIS 48381…
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Recent Posts

Rule 37(c)(1) Sanctions — Exclusion of Untimely Expert Report — Burden Is On Noncompliant Party to Prove Harmlessness — Court Need Not Hold Hearing If Noncompliant Party Fails to Argue Harmlessness, Even When Exclusion Is Tantamount to Dismissal

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

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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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