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

Revised Rule 502 on Privilege Waiver — Final Committee Version

Download associated file: Final Rule 502 from Evid Committee.pdf  The meeting of the Advisory Committee on the Federal Rules of Evidence Rules has ended, and the final Committee version of Rule 502 is attached (it goes to the Standing Committee in June). Most notable: S ...
Download associated file: Final Rule 502 from Evid Committee.pdf  The meeting of the Advisory Committee on the Federal Rules of Evidence Rules has ended, and the final Committee version of Rule 502 is attached (it goes to the Standing…
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Statutory Language re Selective Waiver

Download associated file: Final Selective Waiver Statutory Language.pdf  Also from the just-concluded Evidence Rules Committee meeting: Attached is the final language drafted by the Advisory Committee on the Federal Rules of Evidence regarding selective waiver. As noted ...
Download associated file: Final Selective Waiver Statutory Language.pdf  Also from the just-concluded Evidence Rules Committee meeting: Attached is the final language drafted by the Advisory Committee on the Federal Rules of Evidence regarding selective waiver. As noted in the…
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Proposed SDNY and EDNY Rule Changes

Download associated file: SDNY and EDNY proposed rule changes effective May 2007.pdf  The United States District Courts for the Southern District of New York and the Eastern District of New York have proposed changes to their Local Civil Rules. The proposed changes, whic ...
Download associated file: SDNY and EDNY proposed rule changes effective May 2007.pdf  The United States District Courts for the Southern District of New York and the Eastern District of New York have proposed changes to their Local Civil Rules.…
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Are All ERISA Fiduciaries Created Equal?

Apparently not in the Third Circuit, at least when it comes to the application of the fiduciary exception to the attorney client privilege. Addressing an issue of first impression, the Third Circuit recently held in Wachtel v. Health Net, Inc., Nos. 06-3031 & 06-3032, 2007 WL 958572 (3d Cir. Apr. 2, 2007), that while the fiduciary exception may apply to ERISA plan ...
Apparently not in the Third Circuit, at least when it comes to the application of the fiduciary exception to the attorney client privilege. Addressing an issue of first impression, the Third Circuit recently held in Wachtel v. Health Net, Inc.,…
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New Eleventh Circuit Decision — Class Action Fairness Act

Download associated file: Lowery.pdf  On Wednesday, the Eleventh Circuit issued its decision in Lowery v. Alabama Power Co., Nos. 06-16324 & 06-325, --- F.3d ---, 2007 WL 1062769 (11th Cir. Apr. 11, 2007). The Lowery panel was not shy in its views on the clarity of CAFA' ...
Download associated file: Lowery.pdf  On Wednesday, the Eleventh Circuit issued its decision in Lowery v. Alabama Power Co., Nos. 06-16324 & 06-325, — F.3d —, 2007 WL 1062769 (11th Cir. Apr. 11, 2007). The Lowery panel was not shy…
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More On Forum Non Conveniens and Sinochem

As discussed in the March 5 blog, the Supreme Court recently held in Sinochem Int’l Co. v. Malaysia Int’l Shipping Co., --- U.S. ---, 127 S.Ct. 1184 (2007), that a district court may dismiss a case on forum non conveniens grounds before addressing and resolving ‛jurisdictional issues.“ By ‛jurisdictional issues,“ the Court meant both personal jurisdicti ...
As discussed in the March 5 blog, the Supreme Court recently held in Sinochem Int’l Co. v. Malaysia Int’l Shipping Co., — U.S. —, 127 S.Ct. 1184 (2007), that a district court may dismiss a case on forum non conveniens…
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Bankruptcy Removal

State court cases that are ‛related to“ bankruptcy proceedings may be removable to Federal Court, but the hurdles are high. The bankruptcy removal statute, 28 U.S.C. § 1452(a), permits removal where Federal bankruptcy jurisdiction exists under 28 U.S.C. § 1334. Bankruptcy jurisdiction encompasses a far broader category of cases than just those considered to ...
State court cases that are ‛related to“ bankruptcy proceedings may be removable to Federal Court, but the hurdles are high. The bankruptcy removal statute, 28 U.S.C. § 1452(a), permits removal where Federal bankruptcy jurisdiction exists under 28 U.S.C. § 1334.…
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‘Ancient’ Newspapers

Are statements in a newspaper article admissible in Federal Court for the truth? If the article is more than 20 years old, the answer is generally yes. Federal Rule of Evidence 803(16) — the ‛Ancient Documents“ rule — provides that ‛[s]tatements in a document in existence twenty years or more the authenticity of which is established“ are not excluded b ...
Are statements in a newspaper article admissible in Federal Court for the truth? If the article is more than 20 years old, the answer is generally yes. Federal Rule of Evidence 803(16) — the ‛Ancient Documents“ rule — provides that…
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Serving Private Parties in Foreign Countries

Individuals. Rule 4(f) of the Federal Rules of Civil Procedure governs service of a Federal complaint upon individuals in a foreign country. Under Rule 4(f)(1), service is permitted by internationally agreed means (such as the Hague Convention). If there is no agreement with the relevant country, Rule 4(f)(2) applies. It permits service in three ways: (A) as al ...
Individuals. Rule 4(f) of the Federal Rules of Civil Procedure governs service of a Federal complaint upon individuals in a foreign country. Under Rule 4(f)(1), service is permitted by internationally agreed means (such as the Hague Convention). If there is…
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Diversity Loopholes

The Federal diversity jurisdiction statute, 28 U.S.C. § 1332, provides for Federal jurisdiction in cases involving more than $75,000 between ‛(1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state; (3) citizens of different States…in which citizens or subjects of a foreign state are additional parties; and (4) a fo ...
The Federal diversity jurisdiction statute, 28 U.S.C. § 1332, provides for Federal jurisdiction in cases involving more than $75,000 between ‛(1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state; (3) citizens…
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Recent Posts

Rule 37 Sanctions Properly Denied for Failure to Produce Documents That Were Already in the Requester’s Possession And Were Not Relevant to The Principal Issue in the Lawsuit — Experts/Daubert: Exclusion Appropriate Where Opinion Was Predicated on Erroneous Assumptions of Law

Supreme Court: Obtaining a Preliminary Injunction Does Not Render the Plaintiff a “Prevailing Party” Entitled to Attorney’s Fees — Must Win “Enduring Relief” On The Merits From A Judicial Order — Extraneous Events, Like Legislation, That Preserve The Outcome And Moot The Lawsuit Do Not Turn The Plaintiff into A Prevailing Party (Note, However, That A Defendant Need Not Obtain A Favorable Judgment On The Merits In Order To Be A “Prevailing Party”)

Supreme Court: When A Plaintiff Amends The Complaint To Delete The Federal-Law Claims That Enabled Removal To Federal Court, Leaving Only State-Law Claims, The Federal Court Loses Supplemental Jurisdiction, And The Case Must Be Remanded To State Court

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

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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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