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

Expert Spoliation — Destruction of Notes — No Sanction

The plaintiff’s damages expert in Loveless v. John’s Ford, Inc., 2007 U.S. App. LEXIS 11001 (4th Cir. May 9, 2007), testified as to the plaintiff’s loss of income in this ADEA action. After the expert gathered earnings information by hand from the corporate defendant’s records, he transferred the data to his computer and discarded the notes. The ...
The plaintiff’s damages expert in Loveless v. John’s Ford, Inc., 2007 U.S. App. LEXIS 11001 (4th Cir. May 9, 2007), testified as to the plaintiff’s loss of income in this ADEA action. After the expert gathered earnings information by hand…
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Forum Selection Clause — Governing Law

When parties include in their contract a choice of law provision selecting foreign law to govern ‛formation, validity and enforcement“ of contract, does that law — or does some U.S. law — govern interpretation of the contract’s forum selection clause? Deciding this issue of first impression in the Sixth Circuit, District Judge George Caram Steeh ruled in ...
When parties include in their contract a choice of law provision selecting foreign law to govern ‛formation, validity and enforcement“ of contract, does that law — or does some U.S. law — govern interpretation of the contract’s forum selection clause?…
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Sanctions — The Perils for Parties Adopting ‛An Aggressive Litigation Posture“

There was no love lost between the parties to Novak v. Capital Mgmt. & Devel. Corp., 2007 U.S. Dist. LEXIS 29788 (D.D.C. April 24, 2007). When the plaintiff filed a supplemental response to defendants’ interrogatories that identified eleven new witnesses, and later a second supplement with eight more — all well prior to the close of discovery — th ...
There was no love lost between the parties to Novak v. Capital Mgmt. & Devel. Corp., 2007 U.S. Dist. LEXIS 29788 (D.D.C. April 24, 2007). When the plaintiff filed a supplemental response to defendants’ interrogatories that identified eleven new witnesses,…
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New York Convention — ‛Agreement in Writing“ to Arbitrate — Interplay with Federal Arbitration Act

The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 9 U.S.C. § 201, et. seq. requires an ‛agreement in writing“ before arbitration may be compelled. The plaintiff in Interested Underwriters at Lloyd's v. M/T San Sebastian, 2007 U.S. Dist. LEXIS 24817 (N.D. Ga. April 3, 2007) was the subrogated insurance carri ...
The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 9 U.S.C. § 201, et. seq. requires an ‛agreement in writing“ before arbitration may be compelled. The plaintiff in Interested Underwriters at Lloyd’s v. M/T San Sebastian,…
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Foreign Sovereign Immunities Act — Commercial Activity Exception — Actual vs. Apparent Agency

To satisfy a judgment against the nation of Iran, the plaintiffs in Rubin v. Islamic Republic of Iran, 2007 U.S. Dist. LEXIS 24376 (N.D. Ill. March 19, 2007), sought to attach Persian artifacts in the United States. Section 1609 of the FSIA, 28 U.S.C. § 1609, provides that ‛the property in the United States of a foreign state shall be immune from att ...
To satisfy a judgment against the nation of Iran, the plaintiffs in Rubin v. Islamic Republic of Iran, 2007 U.S. Dist. LEXIS 24376 (N.D. Ill. March 19, 2007), sought to attach Persian artifacts in the United States. Section 1609 of…
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Insider Trading — Conviction of Tippee Despite Acquittal of Tipper

In United States v. Evans, 2007 U.S. App. LEXIS 11344 (7th Cir. May 15, 2007), the Seventh Circuit upheld the insider trading conviction of a tippee despite the fact that his alleged tipper was acquitted and the tippee was himself acquitted of conspiring with the alleged tipper (relying on Standefer v. United States, 447 U.S. 10 (1980), in which the Su ...
In United States v. Evans, 2007 U.S. App. LEXIS 11344 (7th Cir. May 15, 2007), the Seventh Circuit upheld the insider trading conviction of a tippee despite the fact that his alleged tipper was acquitted and the tippee was himself…
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Electronic Discovery & Spoliation — Third Party Destruction of Evidence

Defendant Doneen Barone in World Courier v. Barone, 2007 U.S. Dist. LEXIS 31714 (N.D. Cal. April 16, 2007), did not destroy the hard drive that contained relevant evidence — her husband did. Defendants argued that they could not be sanctioned because the spoliator was not a party to the action. District Judge Thelton E. Henderson rejected this argume ...
Defendant Doneen Barone in World Courier v. Barone, 2007 U.S. Dist. LEXIS 31714 (N.D. Cal. April 16, 2007), did not destroy the hard drive that contained relevant evidence — her husband did. Defendants argued that they could not be sanctioned…
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Party’s Personal Notes — Discoverability — Privilege/Rule 612

The plaintiff in Calandra v. Sodexho, Inc., 2007 U.S. Dist. LEXIS 31418 (D. Conn. April 27, 2007), prepared personal notes before hiring a lawyer to file an age discrimination claim. The defendants sought to compel production of the notes. The defendant argued, first, that the notes could not be privileged because they were prepared before counsel was ...
The plaintiff in Calandra v. Sodexho, Inc., 2007 U.S. Dist. LEXIS 31418 (D. Conn. April 27, 2007), prepared personal notes before hiring a lawyer to file an age discrimination claim. The defendants sought to compel production of the notes. The…
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Removal — No Discovery on Jurisdictional Prerequisites

The Eleventh Circuit's holding in Lowery v. Alabama Power Co., 2007 U.S. App. LEXIS 8289 (11th Cir. 2007), that no jurisdictional discovery is permissible on removal (see posting of May 10, 2007) is not limited to Class Action Fairness Act cases. This holding has potentially dramatic consequences for removal of even the most routine cases. In the words of D ...
The Eleventh Circuit’s holding in Lowery v. Alabama Power Co., 2007 U.S. App. LEXIS 8289 (11th Cir. 2007), that no jurisdictional discovery is permissible on removal (see posting of May 10, 2007) is not limited to Class Action Fairness Act…
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Electronic Evidence — Admissibility of Electronically Stored Information

For the last several years there has been seemingly endless discussion of the rules regarding the discovery of electronically stored information ("ESI"). The adoption of a series of amendments to the Federal Rules of Civil Procedure relating to the discovery of ESI in December of 2006 has only heightened, not lessened, this discussion. Very little has be ...
For the last several years there has been seemingly endless discussion of the rules regarding the discovery of electronically stored information (“ESI”). The adoption of a series of amendments to the Federal Rules of Civil Procedure relating to the discovery…
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Recent Posts

Supreme Court: A Rule 41(a) Voluntary Dismissal Without Prejudice = A Final Proceeding Within Rule 60(b) — Advisory Committee Notes Are “A Reliable Source Of Insight Into The Meaning Of A Rule” — Prior to Dismissal or Entry of Judgment, A District Court May Always Rehear and Reconsider Prior Rulings

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

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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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