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

Rule 54(b) — Standard on Motion for Reconsideration

Federal Rule of Civil Procedure 54(b) provides a seemingly liberal standard allowing district courts to revisit non-final orders in their discretion. The Rule provides that: [A]ny order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not ...
Federal Rule of Civil Procedure 54(b) provides a seemingly liberal standard allowing district courts to revisit non-final orders in their discretion. The Rule provides that: [A]ny order or other form of decision, however designated, which adjudicates fewer than all the…
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Expert Spoliation — Sanctions — Loss on the Merits

The patent dispute in ClearValue, Inc. v. Pearl River Polymers, Inc., 2007 U.S. Dist. LEXIS 46919 (E.D. Tex. June 28, 2007), turned on the question whether the defendant’s products had a high molecular weight. At trial, the plaintiffs presented no evidence of any tests showing that the products had a high molecular weight (instead, plaintiffs relied on mar ...
The patent dispute in ClearValue, Inc. v. Pearl River Polymers, Inc., 2007 U.S. Dist. LEXIS 46919 (E.D. Tex. June 28, 2007), turned on the question whether the defendant’s products had a high molecular weight. At trial, the plaintiffs presented no…
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Judicial Notice — Factual Findings of Other Courts

Federal Rule of Evidence 201(b) provides that courts may take judicial notice of adjudicative facts outside the trial record only if they are "not subject to reasonable dispute." The plaintiffs in Mississippi State Democratic Party v. Barbour, 2007 U.S. Dist. LEXIS 41908 (N.D. Miss. June 8, 2007), moved the Court to take judicial notice of approximately 28 p ...
Federal Rule of Evidence 201(b) provides that courts may take judicial notice of adjudicative facts outside the trial record only if they are “not subject to reasonable dispute.” The plaintiffs in Mississippi State Democratic Party v. Barbour, 2007 U.S. Dist.…
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Securities — The End of Channel Stuffing

One portion of the Supreme Court's decision in Tellabs, Inc. v. Makor Issues & Rights, Ltd., 2007 U.S. LEXIS 8270 (U.S. June 21, 2007), hasn't received the attention it is due. Apart from the scienter pleading standard which the case articulates (a standard that plaintiffs will likely find more hospitable than they were anticipating), the Court embraced the ...
One portion of the Supreme Court’s decision in Tellabs, Inc. v. Makor Issues & Rights, Ltd., 2007 U.S. LEXIS 8270 (U.S. June 21, 2007), hasn’t received the attention it is due. Apart from the scienter pleading standard which the case…
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RICO — Association-In-Fact Enterprise — Ascertainable Structure Requirement

For years, anyone who has litigated RICO claims in the Ninth Circuit has had to deal with a very amorphous definition of association-in-fact enterprise — one that could (but not necessarily would) be satisfied by almost any contractual relationship. Now, there is a strong argument that ‛could“ has now become ‛would.“ In an en banc decision, Odom v. Mi ...
For years, anyone who has litigated RICO claims in the Ninth Circuit has had to deal with a very amorphous definition of association-in-fact enterprise — one that could (but not necessarily would) be satisfied by almost any contractual relationship. Now,…
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Class Action Fairness Act — Burden of Proof on Exceptions

The plaintiffs in the putative class action styled McMorris v. TJX Cos., 2007 U.S. Dist. LEXIS 47458 (D. Mass. June 26, 2007), filed a state court complaint on behalf of ‛[r]esidents of Massachusetts who made purchases and paid by credit or debit card or check or who made a return at one or more Marshalls, T.J. Maxx, HomeGoods, or A.J. Wright stores ...
The plaintiffs in the putative class action styled McMorris v. TJX Cos., 2007 U.S. Dist. LEXIS 47458 (D. Mass. June 26, 2007), filed a state court complaint on behalf of ‛[r]esidents of Massachusetts who made purchases and paid by credit…
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Spousal Privileges and Exceptional Testimony

After being convicted and sentenced to more than 20 years imprisonment for drug trafficking, the defendant in Vo v. United States, 2007 U.S. Dist. LEXIS 47093 (D Haw. June 28, 2007), claimed ineffective assistance of counsel because his lawyer did not object to testimony from the defendant’s wife on grounds of marital privilege. The wife testified that her ...
After being convicted and sentenced to more than 20 years imprisonment for drug trafficking, the defendant in Vo v. United States, 2007 U.S. Dist. LEXIS 47093 (D Haw. June 28, 2007), claimed ineffective assistance of counsel because his lawyer did…
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Class Actions — Rule 23(f) — Vacating and Reinstating Certification Order Ineffective to Re-Start 10-Day Appeal Period

Federal Rule of Civil Procedure 23(f) provides that: ‛A court of appeals may in its discretion permit an appeal from an order of a district court granting or denying class action certification under this rule if application is made to it within ten days after entry of the order.“ The ten-day time limit is jurisdictional. The plaintiffs in Jenkins v ...
Federal Rule of Civil Procedure 23(f) provides that: ‛A court of appeals may in its discretion permit an appeal from an order of a district court granting or denying class action certification under this rule if application is made to…
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Spoliation: Power Point Presentation

Download associated file: Spoliation Power Points.pdf  Attached is a power point presentation (in PDF format) that was used in connection with a continuning judicial education program at the National Foundation for Judicial Excellence in Chicago on June 30, 2007. It upda ...
Download associated file: Spoliation Power Points.pdf  Attached is a power point presentation (in PDF format) that was used in connection with a continuning judicial education program at the National Foundation for Judicial Excellence in Chicago on June 30, 2007.…
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Email Authentication — Circumstantial Evidence

The prosecution in People v. Whicker, 2007 Cal. App. Unpub. LEXIS 5197 (Cal. App. June 26, 2007), was evidently unable to authenticate an email in the traditional way. (See Internet and Email Evidence on the Recent Articles page for a description of the customary ways to authenticate email evidence.) The witness, moreover, was hostile and said she c ...
The prosecution in People v. Whicker, 2007 Cal. App. Unpub. LEXIS 5197 (Cal. App. June 26, 2007), was evidently unable to authenticate an email in the traditional way. (See Internet and Email Evidence on the Recent Articles page for a…
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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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