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

Electronic Discovery — Form of Production — Sanctions

As amended effective December 1, 2006, Fed.R.Civ.P. 26(f) requires that, at the initial discovery conference, the parties discuss ‛any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced.“ Williams vs. Sprint/United Mgmt. Co., 2007 U.S. Dist. LEXIS 5477 (D. Kan. Jan. 23, ...
As amended effective December 1, 2006, Fed.R.Civ.P. 26(f) requires that, at the initial discovery conference, the parties discuss ‛any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced.“…
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Summary Judgment — Rulemaking

As previously noted, the Advisory Committee on the Federal Rules of Civil Procedure is holding a mini-conference in New York today (Monday, 1/29/07) to consider possible amendments to summary judgment practice under Rule 56. A summary of the discussion will appear in a posting tomorrow (Tuesday, 1/30/07). ...
As previously noted, the Advisory Committee on the Federal Rules of Civil Procedure is holding a mini-conference in New York today (Monday, 1/29/07) to consider possible amendments to summary judgment practice under Rule 56. A summary of the discussion will…
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Experts — Deposition Supplements Report

One of the plaintiffs’ experts in B.H. v. Gold Fields Mining Corp., 2007 U.S. Dist. LEXIS 4612 (N.D. Okla. Jan. 22, 2007), testified at his deposition to a theory not set forth in his Rule 26(a)(2)(B) report. The District Court concluded that the new theory was not trivial but constituted ‛a significant extension of [the] generic opinion“ set forth in the exp ...
One of the plaintiffs’ experts in B.H. v. Gold Fields Mining Corp., 2007 U.S. Dist. LEXIS 4612 (N.D. Okla. Jan. 22, 2007), testified at his deposition to a theory not set forth in his Rule 26(a)(2)(B) report. The District Court…
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Sovereign Immunity — Commercial Activities

The Foreign Sovereign Immunities Act provides, in 28 U.S.C. § 1609, that "the property in the United States of a foreign state shall be immune from attachment[,] arrest and execution except as provided in section[] 1610...." Section 1610 in turn provides: "The property in the United States of a foreign state ... used for a commercial activity in the United St ...
The Foreign Sovereign Immunities Act provides, in 28 U.S.C. § 1609, that “the property in the United States of a foreign state shall be immune from attachment[,] arrest and execution except as provided in section[] 1610….” Section 1610 in turn…
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Attorney-Client Privilege — Corporate Metamorphoses

Businesses move from one corporate entity to another. Does the attorney-client privilege covering communications between business executives and their counsel move with the business? Sometimes. It is well-settled that a transfer of corporate assets, without more, does not transfer the right to assert or waive the attorney-client privilege. ...
Businesses move from one corporate entity to another. Does the attorney-client privilege covering communications between business executives and their counsel move with the business? Sometimes. It is well-settled that a transfer of corporate assets, without more, does not transfer the…
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Removal — Written Consent of All Defendants

The Third Circuit has never embraced — or for that matter rejected — the majority position that each defendant must consent in writing (as opposed to orally) to removal of a state court action to federal court, according to the decision in Wal-Mart Stores, Inc. v. Elec. Ins. Co., 2007 U.S. Dist. LEXIS 3572 (D.N.J. Jan. 18, 2007). Nonetheless, that decision c ...
The Third Circuit has never embraced — or for that matter rejected — the majority position that each defendant must consent in writing (as opposed to orally) to removal of a state court action to federal court, according to the…
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District and Magistrate Judges — Yes, They Talk

Lawyers often wonder whether about the extent of informal communication between District and Magistrate Judges. In Trustees of Laborers Local 310 v. Able Contracting Group, 2007 U.S. Dist. LEXIS 3988 (N.D. Ohio Jan. 19, 2007), the District Judge imposed discovery sanctions decision on defense counsel and the defendant, which ignored discovery orders after a failed ...
Lawyers often wonder whether about the extent of informal communication between District and Magistrate Judges. In Trustees of Laborers Local 310 v. Able Contracting Group, 2007 U.S. Dist. LEXIS 3988 (N.D. Ohio Jan. 19, 2007), the District Judge imposed discovery…
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28 U.S.C. § 1782 — Application to International Arbitration

Does 28 U.S.C. § 1782(a) authorize discovery for use in a private international arbitration? Prior to the Supreme Court’s decision in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), it was well-settled that a private international arbitration tribunal was not ‛a foreign or international tribunal“ within § 1782. Intel, however, relied heav ...
Does 28 U.S.C. § 1782(a) authorize discovery for use in a private international arbitration? Prior to the Supreme Court’s decision in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), it was well-settled that a private international arbitration…
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Securities — PSLRA Safe Harbor for Forward-Looking Statements

Rich Rosen of Paul Weiss has written an excellent article in the current issue of the BNA Securities Regulation & Law Report that comprehensively explores the last two years' (Nov. 2004 to Nov. 2006) judicial decisions applying the safe harbor for forward-looking statements contained in the the Private Securities Litigation Reform Act of 1995. Paul Weiss has poste ...
Rich Rosen of Paul Weiss has written an excellent article in the current issue of the BNA Securities Regulation & Law Report that comprehensively explores the last two years’ (Nov. 2004 to Nov. 2006) judicial decisions applying the safe harbor…
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Rulemaking 2007

The Recent Articles page contains a new article addressing (1) federal rule changes that are expected to go into effect on December 1, 2007; (2) the activity of the Advisory Committee on Civil Rules dealing with experts and summary judgment; and (3) the Standing Committee's Time Computation Project. ...
The Recent Articles page contains a new article addressing (1) federal rule changes that are expected to go into effect on December 1, 2007; (2) the activity of the Advisory Committee on Civil Rules dealing with experts and summary judgment;…
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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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