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 Fraud — Materiality to Investors, Not to SEC

The defendant in a criminal securities fraud prosecution, United States v. Berger, 2007 U.S. App. LEXIS 1013 (9th Cir. Jan. 18, 2007), was charged with making false statements in SEC filings. Relying on the reasoning of Kungys v. United States, 485 U.S. 759 (1988), an INS case, the defendant argued that the government was obliged to prove -- not that the filings we ...
The defendant in a criminal securities fraud prosecution, United States v. Berger, 2007 U.S. App. LEXIS 1013 (9th Cir. Jan. 18, 2007), was charged with making false statements in SEC filings. Relying on the reasoning of Kungys v. United States,…
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Rule 11 Safe Harbor — Email Notice — Substantial Compliance

Since 1993, Rule 11(c)(1)(A) has required that Rule 11 sanctions be sought in a separate motion that is served in ordinary course but may not presented to the court if the opposing party withdraws or corrects the challenged paper or contention within 21 days of receipt of the motion. Failure to afford 21 days' grace before filing the motion requires denial of t ...
Since 1993, Rule 11(c)(1)(A) has required that Rule 11 sanctions be sought in a separate motion that is served in ordinary course but may not presented to the court if the opposing party withdraws or corrects the challenged paper or…
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Attorney-Client Privilege — Government Lawyers

In re County of Erie, 2007 U.S. App. LEXIS 26 (2d Cir. Jan. 3, 2007), the Second Circuit addressed whether "the attorney-client privilege protects communications that pass between a government lawyer having no policymaking authority and a public official, where those communications assess the legality of a policy and propose alternative policies in that light." ...
In re County of Erie, 2007 U.S. App. LEXIS 26 (2d Cir. Jan. 3, 2007), the Second Circuit addressed whether “the attorney-client privilege protects communications that pass between a government lawyer having no policymaking authority and a public official, where…
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Securities Fraud — Auditor Liability

Yesterday, the Seventh Circuit affirmed dismissal of negligent misrepresentation, common law fraud and securities fraud claims (the latter on loss causation grounds) against PriceWaterhouse Coopers in Tricontinental Indus. Ltd. v. PwC, 2007 U.S. App. LEXIS 914 (7th Cir. Jan. 17, 2007). ...
Yesterday, the Seventh Circuit affirmed dismissal of negligent misrepresentation, common law fraud and securities fraud claims (the latter on loss causation grounds) against PriceWaterhouse Coopers in Tricontinental Indus. Ltd. v. PwC, 2007 U.S. App. LEXIS 914 (7th Cir. Jan. 17, 2007).
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Sanctions — Spoliation

No good deed goes unpunished. A State Farm policyholder had a serious home fire caused by a defective kitchen appliance. State Farm responded within a day and sent in a fire investigator who determined that a toaster oven instigated the fire. State Farm preserved the toaster oven and other potential igniters and authorized a demolition repair company to come i ...
No good deed goes unpunished. A State Farm policyholder had a serious home fire caused by a defective kitchen appliance. State Farm responded within a day and sent in a fire investigator who determined that a toaster oven instigated the…
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Appellate Procedure — Trial Judge’s Ability to be Heard

Last week, Judge Lewis A. Kaplan of the United States District Court for the Southern District of New York filed in the Second Circuit a response to the mandamus petition of KPMG challenging the District Court’s order refusing to dismiss the complaint filed by former KPMG partners seeking advancement of costs to defend a highly publicized criminal prosecution. Un ...
Last week, Judge Lewis A. Kaplan of the United States District Court for the Southern District of New York filed in the Second Circuit a response to the mandamus petition of KPMG challenging the District Court’s order refusing to dismiss…
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Experts — Rulemaking — Advisory Committee Meeting of January 13, 2007

The following are observations of Professor Daniel J. Capra, the Reporter to the Advisory Committee on the Federal Rules of Evidence and the Reed Professor of Law at Fordham Law School, concerning the meeting of the Discovery Subcommittee of the Advisory Committee on the Federal Rules of Civil Procedure in Arizona last Saturday, January 13, 2007 dealing with expe ...
The following are observations of Professor Daniel J. Capra, the Reporter to the Advisory Committee on the Federal Rules of Evidence and the Reed Professor of Law at Fordham Law School, concerning the meeting of the Discovery Subcommittee of the…
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Electronic Discovery — Form of Production

The December 2006 electronic discovery amendments send mixed messages to recipients of document requests and subpoenas. Rule 34(b) permits, but does not require, the requesting party to specify the format in which it wishes to receive electronically stored information ("ESI"). The responding party may object to the requested format. If it does so, the responde ...
The December 2006 electronic discovery amendments send mixed messages to recipients of document requests and subpoenas. Rule 34(b) permits, but does not require, the requesting party to specify the format in which it wishes to receive electronically stored information (“ESI”).…
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Sanctions — E Government Act — Failure to Redact

The E Government Act of 2002 requires that personal identifiers, such as Social Security numbers, financial accounts to the last four digits, and names of minor children be redacted from federal court filings. The Judicial Conference of the United States has a Privacy Policy in place, the Standing Committee is finalizing rules on the subject that will go into effec ...
The E Government Act of 2002 requires that personal identifiers, such as Social Security numbers, financial accounts to the last four digits, and names of minor children be redacted from federal court filings. The Judicial Conference of the United States…
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Temporary Internet Files — Authentication

As discussed in an article on the Recent Articles page ("Internet and Email Evidence"), there is an accepted protocol for authenticating web pages, including archived web pages. A recent decision in the Northern District of Iowa extends this approach to authentication of Temporary Internet Files, which automatically store all accessed images so that the computer ca ...
As discussed in an article on the Recent Articles page (“Internet and Email Evidence”), there is an accepted protocol for authenticating web pages, including archived web pages. A recent decision in the Northern District of Iowa extends this approach to…
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Recent Posts

Supreme Court: (1) Fraudulent Inducement Theory of Mail Fraud: Statute Violated If Victim Is Tricked into Parting with Money Or Property, Even If Victim Suffers No Pecuniary Loss — (2) “A Fraud Is Complete When The Defendant Has Induced The Deprivation Of Money Or Property Under Materially False Pretenses” — (3) The Old Soil Principle of Statutory Construction Applies Only to the Extent That a Common-Law Term Has Accumulated a Settled Meaning — (4) Rescission for Fraud Does Not Require Economic Loss; Sufficient If Property of A Different Character Or Condition Provided — i.e, If Victim Tricked into A Bargain Materially Different from The One Promised — (5) “At The Right Level Of Specificity, Anything Can Be Described As ‘Unique’ Or ‘Different From’ Something Else” (Good Quote) — (6) “Materiality Look[s] To The Effect On The Likely Or Actual Behavior Of The Recipient Of The Alleged Misrepresentation” (Good Quote)

Statements in Briefs As Judicial Admissions

Supreme Court: TRO As Appealable Order — And District Court Inaction As Tantamount to Refusing An Injunction And Thus Appealable

“Slow-Playing Discovery” in Response to Court Order, Prejudicing Opponent, Violates Rule 37(b)(2)(A)

RICO Pattern: No Closed-Ended Continuity If Racketeering Activity Lasted Less Than One Year (11th Circuit) — Conspiracy Allegations Governed by Rule 8(a), Not 9(b) — Two Paths to Establishing A RICO Conspiracy: Agreement to Objective Or to Commit 2 Predicate Acts — Plaintiff Need Not Show Reliance When The Predicate Acts Are Wire Fraud — In Dicta, 11th Circuit Intimates That Even If The Primary RICO Violation Allegations Fail, The RICO Conspiracy Allegations Might Survive, But Is Probably Talking About A Conspiracy to Commit The Predicate Acts

United States Trinity Energy Servs., L.L.C. v. Se. Directional Drilling, L.L.C., 2025 U.S. App. LEXIS 10178 (5th Cir. Apr. 28, 2025): FRAP 38 Separate Motion Requirement FRAP 38 Sanctions Properly Denied for Want of Separate Motion — Request in Brief Insufficient — “Manifest Disregard” Is Not A Freestanding Ground for Vacatur of Arbitration Award in Fifth Circuit (Or First, Eighth Or Eleventh)

§ 1927 Sanctions Apt for Failing to Withdraw Claim Until Summary Judgment Hearing, Requiring Opponent and Court to Prepare for An Abandoned Argument — Bad Faith Established by False and Misleading Statements to Court — Raising New Argument for First Time in Reply Brief Does Not Warrant § 1927 Sanctions

RICO: Mail and Wire Fraud: Act of Emailing Transcript of Court Proceedings Containing Allegedly False Statements Made in Court ≠ Wire Fraud — Mailing (Serving on Opposing Party) Declarations Allegedly Containing False Statements ≠ Mail Fraud

Supreme Court: (1) Rule 11 Sanctions Available Where Affirmative Defense “Obviously Applies” and Plaintiff/Plaintiff’s Counsel “Lack A Good Faith Basis to Believe Otherwise” — (2) If Affirmative Defense Pled, Court May Require Plaintiff to File a Reply to the Answer Pursuant to Fed. R. Civ. P. 7(a) Setting forth “Specific, Nonconclusory Factual Allegations” Showing That The Affirmative Defense Does Not Apply — (3) The Title of a Statute And The Heading of a Section May Properly Be Used to Interpret the Text

FRAP 38 Sanctions — Sixth Circuit Usually Declines to Impose FRAP 38 Sanctions Unless An Improper Purpose Was Behind the Appeal

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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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