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

Securities Litigation Update

Last week was not a good one for securities plaintiffs in New York. On Tuesday, the Second Circuit affirmed dismissal of a securities fraud class action alleging both 10b-5 and Section 14(a) claims, in an unreported decision last week, in Leykin v. AT&T Corp., 2007 U.S. App. LEXIS 2378 (2d Cir. Jan. 30, 2007) (also affirming dismissal of state law claims pursuant t ...
Last week was not a good one for securities plaintiffs in New York. On Tuesday, the Second Circuit affirmed dismissal of a securities fraud class action alleging both 10b-5 and Section 14(a) claims, in an unreported decision last week, in…
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Spousal Privilege — Federal Legislation

The Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248 § 214 (signed into law on July 27, 2006) directed the Standing Committee on Rules of Practice and Procedure to ‛study the necessity and desirability of amending the Federal Rules of Evidence to provide that the confidential marital communications privilege and the adverse spousal privi ...
The Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248 § 214 (signed into law on July 27, 2006) directed the Standing Committee on Rules of Practice and Procedure to ‛study the necessity and desirability of…
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Sua Sponte Sanctions — State of Mind

There is a split in the Circuits as to whether subjective bad faith is a prerequisite for the imposition of Rule 11 sanctions issued sua sponte. A split panel decision of the Second Circuit in In re Pennie & Edmonds LLP, 323 F.3d 86 (2d Cir. 2003), answered this question Yes. On January 31, 2007, the Fifth Circuit — correctly — held that the answer is No. ...
There is a split in the Circuits as to whether subjective bad faith is a prerequisite for the imposition of Rule 11 sanctions issued sua sponte. A split panel decision of the Second Circuit in In re Pennie & Edmonds…
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Inherent Power — Appellate Courts

Lin v. United States Dept. of Justice, 2007 U.S. App. LEXIS 1875 (2d Cir. Jan. 5, 2007), a petition for review of an asylum request that was denied, presented the Court of Appeals with a conundrum. Newly available evidence strongly indicated that the petitioner would be forcibly sterilized if returned to China. While the Court agreed with the petitioner that the n ...
Lin v. United States Dept. of Justice, 2007 U.S. App. LEXIS 1875 (2d Cir. Jan. 5, 2007), a petition for review of an asylum request that was denied, presented the Court of Appeals with a conundrum. Newly available evidence strongly…
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CAFA — Applicability

Professor Lonny Hoffman has an interesting article on the Class Action Fairness Act in the current issue of the UC Davis Law Review: "The 'Commencement' Problem: Lessons from a Statute's First Year," 40 U.C. Davis L. Rev. 469 (2006). ...
Professor Lonny Hoffman has an interesting article on the Class Action Fairness Act in the current issue of the UC Davis Law Review: “The ‘Commencement’ Problem: Lessons from a Statute’s First Year,” 40 U.C. Davis L. Rev. 469 (2006).
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Attorney-Client Privilege — At Issue Waiver

A three-part test is generally used to determine whether a party has waived the attorney-client privilege by placing privileged communications ‛at issue.“ An implied waiver occurs when (1) the party asserts the privilege as a result of some affirmative act, such as filing suit; (2) through this affirmative act, the asserting party puts the privileged informa ...
A three-part test is generally used to determine whether a party has waived the attorney-client privilege by placing privileged communications ‛at issue.“ An implied waiver occurs when (1) the party asserts the privilege as a result of some affirmative act,…
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Discovery — Public Access

A follow up to the January 9, 2007 post (Protective Orders — 2000 Amendment to Rule 5(d)) and a recent publication on this subject (January 2007 Practical Litigator article): Professor Rick Marcus of Hastings College of Law — the Reporter to the Discovery Subcommittee of the Advisory Committee on the Federal Rules of Civil Procedure — has written an interesti ...
A follow up to the January 9, 2007 post (Protective Orders — 2000 Amendment to Rule 5(d)) and a recent publication on this subject (January 2007 Practical Litigator article): Professor Rick Marcus of Hastings College of Law — the Reporter…
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Experts — Accepted Methodology

In Inline Connection Crop. v. AOL Time Warner Inc., 2007 U.S. Dist. LEXIS 4761 (D.Del. Jan. 23, 2007), a patent infringement case, the Magistrate Judge rejected a Daubert challenge to defense expert testimony concerning damages and royalty calculations. Some of the testimony was based on conversations between the expert and employees of other corporations in the fi ...
In Inline Connection Crop. v. AOL Time Warner Inc., 2007 U.S. Dist. LEXIS 4761 (D.Del. Jan. 23, 2007), a patent infringement case, the Magistrate Judge rejected a Daubert challenge to defense expert testimony concerning damages and royalty calculations. Some of…
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Securities Fraud — Dismissal

Yesterday, the Eastern District of Michigan dismissed with prejudice the securities fraud class action captioned In re United American Healthcare Corp. Secs. Litig., 2007 U.S. Dist. LEXIS 6362 (Jan. 30, 2007). First, it reasoned that there was no duty to disclose the undisclosed information. Second, it held that, even if the group pleading doctrine survived enactme ...
Yesterday, the Eastern District of Michigan dismissed with prejudice the securities fraud class action captioned In re United American Healthcare Corp. Secs. Litig., 2007 U.S. Dist. LEXIS 6362 (Jan. 30, 2007). First, it reasoned that there was no duty to…
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Summary Judgment — Rulemaking

The Summary Judgment Subcommittee of the Advisory Committee on the Federal Rules of Civil Procedure held a mini-conference in New York yesterday (Monday, 1/29/07). No conclusions were reached, and the Subcommittee’s deliberations remain tentative. But a number of interesting proposals for amending Rule 56 discussed. The most significant issu ...
The Summary Judgment Subcommittee of the Advisory Committee on the Federal Rules of Civil Procedure held a mini-conference in New York yesterday (Monday, 1/29/07). No conclusions were reached, and the Subcommittee’s deliberations remain tentative. But a number of interesting proposals…
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Recent Posts

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

FRAP 38 Sanctions for Frivolous Opposition to Arbitration

Extrinsic Fraud Exception to Rooker-Feldman — Where Defendants’ Perjury, False Evidence, Flawed Legal Arguments Prevented Plaintiffs from Presenting Their Claim in State Court

Federal Jurisdiction: Party Can Waive Subject Matter Jurisdiction — While Federal Courts Must Ensure They Do Not Lack Subject Matter Jurisdiction, There Is No Duty to Find and Exercise It

“RICO Is a Judge’s Nightmare” — “The Requisite RICO Pleading Standards Are Far From Explicit, And The RICO Jurisprudence Offers Courts (And Plaintiffs) Little Guidance” (Good Quotes) — Common Elements of § 1962(a), (c) and (d)-Based Claims — Closed-End Continuity: Duration > 1 Year = Substantial Period of Time — Continuity: Courts Skeptical If Number of Victims and Schemes Is Limited — Untargeted Persons Who Suffer Derivative Injury Do Not Add to the Number of Victims Considered for Continuity Purposes — Open Ended Continuity Can Be Established by Showing Defendant Commits Predicate Acts As “Regular Way of Doing Business” — Citing the Existence of Other Lawsuits Alleging Similar Predicates ≠ Pleading Facts Demonstrating Defendant’s Commission of Similar Predicates Against Others

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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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