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

Rule 103(b): If Court Denies Motion in Limine But Invites More Foundation at Trial, Is MIL Ruling “Definitive”? (Probably) — Emails Downloaded 16 Yrs Earlier from Unknown Computer by Unknown Person Who Could’ve Altered Them Not Authenticated

United States v. Johns, 2018 U.S. App. LEXIS 35543 (6th Cir. Dec. 19, 2018): This case is about two women, Johns and Westphal, who maintained a secret lesbian relationship for nearly a ...
United States v. Johns, 2018 U.S. App. LEXIS 35543 (6th Cir. Dec. 19, 2018): This case is about two women, Johns and Westphal, who maintained a secret lesbian relationship for nearly a year. When Westphal attempted to end the…
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Rule 803(6): Email from Ex-Opposing Lawyer Years after Litigation Ended, Solicited for Purposes of New Case, Not a Business Record (BR) of Soliciting Firm &, Even if BR of Sending Firm, Is Untrustworthy—R. 1006 Summary: Summed Data Must Be Admissible

Harpst v. George Fleming & Fleming & Assocs., 2018 Tex. App. LEXIS 10719 (Tex. Ct. App. Dec. 21, 2018): After a law firm settled tort claims against a drug manufacturer on behal ...
Harpst v. George Fleming & Fleming & Assocs., 2018 Tex. App. LEXIS 10719 (Tex. Ct. App. Dec. 21, 2018): After a law firm settled tort claims against a drug manufacturer on behalf of approximately 8,000 clients, about half the …
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Experts — Report to Contradict or Rebut Opposing Expert Must Be Served within 30 Days, Absent Court Order — General Discovery / Disclosure Deadline ≠ Relevant Court Order — Can’t Supplement with New Opinions Based on “Theories Evolv[ing]”

Rodgers v. Beechcraft Corp., 2018 U.S. App. LEXIS 35028 (10th Cir. Dec. 13, 2018): On March 17, 2013, James Rodgers and Christopher Evans were passengers on a Beech Premier 390 jet airp ...
Rodgers v. Beechcraft Corp., 2018 U.S. App. LEXIS 35028 (10th Cir. Dec. 13, 2018): On March 17, 2013, James Rodgers and Christopher Evans were passengers on a Beech Premier 390 jet airplane, flying from Tulsa, Oklahoma to South Bend,…
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Voicemail Authentication: Testimony from Person Leaving Message That It Is Her Voice & Accurately Reflects the Message She Left Suffices, Here Coupled with Phone Owner’s Response via Text

People v. Tetter, 2018 IL App (3d) 150243m 2018 Ill. App. LEXIS 519 (Ill. Ct. App. Jan. 31, 2018): [*P1]  Defendant, age 21 at the time, be ...
People v. Tetter, 2018 IL App (3d) 150243m 2018 Ill. App. LEXIS 519 (Ill. Ct. App. Jan. 31, 2018): [*P1]  Defendant, age 21 at the time, began a relationship with S.K. who represented herself to be 18. A jury…
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The 7 Most Important Developments in Federal Civil Procedure in 2018

     1.  Service is generally effected immediately upon filing papers on ECF (amended Fed. R. Civ. P. 5(b)(2)(E))      2.  A class action "proposed to be settled" must be brought to the attention of the District Judge for approval or dismissal, precluding the prior alternative of dismissing in federal court and refiling in state court f ...
1.  Service is generally effected immediately upon filing papers on ECF (amended Fed. R. Civ. P. 5(b)(2)(E))      2.  A class action "proposed to be settled" must be brought to the attention of the District Judge for approval or dismissal, precluding…
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Class Actions: Improper to Certify Class 10% of Whose Members Were Not Injured — Culling Them Out Cannot Be Left to Claims Administrator — Need to ID the Uninjured Predominates—Rules of Evidence Must Be Followed in Doing So (Circuit Split/Variance)

United Food & Commer. Workers Unions & Emplrs. Midwest Health Bens. Fund v. Warner Chilcott Ltd. (In re Asacol Antitrust Litig.), 907 F.3d 42 (1st Cir. 2018): ...
United Food & Commer. Workers Unions & Emplrs. Midwest Health Bens. Fund v. Warner Chilcott Ltd. (In re Asacol Antitrust Litig.), 907 F.3d 42 (1st Cir. 2018): Drug manufacturer Warner Chilcott Limited pulled one of its products — Asacol…
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The Court of Federal Claims Lacks Jurisdication over RICO Claims

Burmaster v. United States, 744 Fed.Appx. 699 (Fed. Cir. 2018): Footnote 1.  Burmaster’s complaint also sought treble damages under the Racketeer Influenced Corrupt Organizations (“RICO”) Act,
Burmaster v. United States, 744 Fed.Appx. 699 (Fed. Cir. 2018): Footnote 1.  Burmaster’s complaint also sought treble damages under the Racketeer Influenced Corrupt Organizations (“RICO”) Act, 18 U.S.C. § 1964(c). Suppl. J.A. at 2. The Claims Court held that…
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Summary Judgment: Evidentiary Issues Reviewed for Abuse of Discretion — Unsigned Dep. OK on SJ If No Inaccuracies Shown — Affidavit from Undisclosed Person Harmless Where Others Disclosed to Say Same Thing & No Deps Taken

PNC Equipment Finance v. Mariani, 2018 WL 6584123 (6th Cir. Dec. 13, 2018): Harry Carr (“Carr”) appeals the decision of the district court to grant the Motion for Summary Judgment (“Motion”) filed by Plaintiff PNC Equipment Finance, LLC (“PNCEF”) and to deny Carr’s Motion to Amend, Stay, or Vacate the district judge’s ...
PNC Equipment Finance v. Mariani, 2018 WL 6584123 (6th Cir. Dec. 13, 2018): Harry Carr (“Carr”) appeals the decision of the district court to grant the Motion for Summary Judgment (“Motion”) filed by Plaintiff PNC Equipment Finance, LLC (“PNCEF”) and…
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Summary Judgment Generally Inapt in Contract Case unless Language Is Unambiguous — Sending Budget to Client’s Carrier at Its Rates ≠ Agreement to Rates — Seeking Indemnification Waives Privilege as to Bills & Commc’ns Going to Fee Reasonableness

Summary Judgment Generally Inapt in Contract Case unless Language Is Unambiguous — Sending Budget to Carrier at Its Rates ≠ Agreement to Rates — By Seeking Indemnification ,Privilege Waived as to Bills & Communications Going to Reasonableness of Fees
Summary Judgment Generally Inapt in Contract Case unless Language Is Unambiguous — Sending Budget to Carrier at Its Rates ≠ Agreement to Rates — By Seeking Indemnification ,Privilege Waived as to Bills & Communications Going to Reasonableness of Fees Feld …
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“Costs” in Rule 41(d)—Which Allows Award If Plaintiff Dismissed Prior Action Asserting Same Claim against Same Def.—Includes Attorneys’ Fees (3-Way Cir. Split) — Derivative Action Rules Apply to LLCs, to Defense & Not Only If Board Malfeasance

Horowitz v. 148 South Emerson Assocs. LLC, 888 F.3d 13 (2d Cir. 2018): : Plaintiff-Appellant Montauk U.S.A., LLC ("Montauk") appeals ...
Horowitz v. 148 South Emerson Assocs. LLC, 888 F.3d 13 (2d Cir. 2018): : Plaintiff-Appellant Montauk U.S.A., LLC ("Montauk") appeals from (i) the district court's dismissal without prejudice of its Lanham Act claims and motion for preliminary…
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Recent Posts

Rule 41(b): Five Factors to Be Weighed in Deciding Whether Dismissal Is Appropriate (Second Circuit) — Is A Finding of Bad Faith or Fault Required if Dismissal Is Without Prejudice? — Undecided If Truly Without Prejudice But It Is Required If the Without Prejudice Dismissal Will Act as a Dismissal on the Merits (Here, Because of the Statute of Limitations) — Failure To Consider A Lesser Sanction Than Dismissal Is Generally An Abuse Of Discretion

Spoliation Sanctions/Mootness: Stipulation Resolving “All Pending Discovery Disputes,” Which Are Enumerated, Does Not Moot Subsequent Sanctions Motion for ESI Spoliation — Postjudgment Sanctions Order Is Appealable When District Court Has Finally Disposed of Both Liability and Amount

Rule 37 Default Judgment Sanction: (1) Default Judgment Appropriate Only As a Last Resort, When Less Drastic Sanctions Would Not Ensure Compliance with the Court’s Orders — (2) Default Judgment Sanction Requires Willful or Bad Faith Failure to Obey Discovery Order — (3) Fugitive Defendant’s Failure to Appear at Court-Ordered, Remote Deposition Despite Court Warning That Sanctions Could Follow Disobedience Warrants Default Judgment — (4) District Court Afforded Wide Discretion in Interpreting Its Own Orders — (5) Filing a Notice of Appeal from a Non-Appealable Order (Here, a Discovery Order) Does Not Deprive the District Court of Jurisdiction over the Case

RICO and Injunctions: (1) State Court Actions Designed to Perpetuate and Monetize a RICO Violation Are Enjoinable under RICO, Even Though They Are Not Themselves Alleged to Be Predicate Acts [Note: Noerr Pennington Applies in RICO Actions] — (2) Although Civil RICO’s Text and Legislative History Fail to Reveal Any Intent to Override the Provisions of the Federal Arbitration Act, Arbitrations Are Enjoinable Under the “Effective Vindication” Doctrine Where They Operate As a Prospective Waiver of a Party’s Right to Pursue Statutory RICO Remedies — (3) Arbitration Findings May Be Given Collateral Estoppel Effect in a Civil RICO Action — (4) Injunction of Non-Corrupt State Court Litigations That Furthers a RICO Violation Are Enjoinable Under the Anti-Injunction Act’s “Expressly Authorized” Exception — (5) “The Irreparable Harm Requirement Is The Single Most Important Prerequisite For The Issuance Of A Preliminary Injunction” (Good Quote) — (6) When Injunction Is Based on “Serious Questions on the Merits” Rather Than “Likelihood of Success,” Court May Rely on Unverified Pleadings and Attached Exhibits to Assess the Merits, Unless the Opponent Has Raised Substantial Questions (Here, the Opponent Failed to Request an Evidentiary Hearing) — (7) Whether Amended Pleading Moots An Appeal Turns on Whether It Materially Changes the Substantive Basis for the Appeal — (8) Meaning of “In That” (“Used To Introduce A Statement That Explains Or Gives More Specific Information” About A Prior Statement)

RICO: Fraudulent Concealment Must Prevent Discovery of the Injury to Toll Statute of Limitations

Rule 37 Default Judgment Sanction: (1) Abuse of Discretion Review = Legal Conclusions De Novo. Factual Findings for Clear Error — (2) Client May Be Sanctioned for Misconduct of Its Counsel, Though Here Client Was Directly Involved in Bad Faith Misbehavior — (3) Is There A Difference, Under Rule 11 As Opposed to Rule 37, Concerning Whether A Client Can Be Sanctioned for Its Counsel’s Misconduct? — (4) While Sanctions of Last Resort (Dismissal/Default) Are Apt Only If Lesser Sanctions Wouldn’t Ensure Compliance, Rule 37 Doesn’t Require the Vain Gesture of First Imposing Lessert Sanctions When It Is Clear They Would be Ineffective — (5) Court’s Reconsideration of Non-Final Orders Is Governed by Rule 54(b), And Court’s Discretion under That Rule Is Governed by the Law-of-the-Case-Doctrine

RICO: (1) Special Pleading Requirements? — (2) Although Enterprise Must Be More Than a Summation of the Predicate Acts, The Predicate Acts Can Demonstrate the Existence of the Enterprise — (3) Requirement That Association-in-Fact Exist For Purposes Other Than Just to Commit Predicate Acts Merely Requires Continuity — (4) To State an Association-in-Fact Enterprise Consisting of One Natural Person and Collection of Legal Fictions Requires Factual Detail As to How They Acted Together — (5) “A § 1962(c) Enterprise Must Be More Than An Association of Individuals Or Entities Conducting the Normal Affairs of a Defendant Corporation” (Good Quote)

RICO: (1) Fee Award May Exceed Amount Recovered — Strict Proportionality Not Required — (2) Nonmonetary Benefits and Injunctive Relief Recovered Also Relevant Factors — (3) Loss on Some Claims Need Not Result in Lowered Fees, Especially When Both Arise Out of The Same Nucleus of Operative Facts

RICO: Indirect Purchasers (Car Buyers/Renters) Lack Standing to Sue Manufacturers for RICO Violations Even Though Intermediaries (Auto Dealer Direct Purchasers) Lack Any Damages

RICO: Statutory Requirement that RICO Be Liberally Construed Does Not Establish a More Liberal Pleading Standard for RICO Claims — “To Be Sure, Adequately Pleading a RICO Claim Can Be Challenging” (Good Quote) — Court May Dismiss Action Pursuant to Rule 41(b) Absent A Motion

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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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