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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.
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Facebook Authentication — Sufficient Where Party Admits Making One Post; Later Posts Refer Back to It; No Evidence Anyone Else Had Access to Facebook Account — Statements on Facebook Page = Party Admissions

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Matter of MC v. State, 2015 Nev. Unpub. LEXIS 646 (Nev. Sup. Ct. Feb. 26, 2015):

North Las Vegas Police monitored the Facebook activity of approximately 130 individuals by befriending them under a fictitious name. M.C. was one of the individuals monitored. North Las Vegas Police Officer Richard Arnold found a two-day-old posting on M.C.'s Facebook stating, "Killing spree by myself. I got four clips that hold seventeen and five hundred bullets. And I don't give a fuck no more." That post was viewed by several of M.C.'s Facebook friends. M.C. was arrested after a search of his house that revealed no weapons or ammunition. M.C. claimed he was not serious when he made the post and said he made the post because he was upset after fighting with his girlfriend. The State ultimately charged M.C. with making a terrorist threat under NRS 202.448.

After a contested hearing, the hearing master recommended that M.C. be adjudicated delinquent. Specifically, the hearing master concluded that M.C. violated NRS 202.448(1) by making a terroristic threat via Facebook [*2]  with the intent to (1) alarm or intimidate others, (2) cause panic or civil unrest, and (3) interfere with police operations. Additionally, the hearing master concluded that the First and Fourth Amendments did not prevent M.C. from being adjudicated as delinquent. The district court approved the hearing master's findings, conclusions, and recommendations over M.C.'s objection. M.C. now appeals.

On appeal, M.C. contends that (1) the State violated his Fourth Amendment rights by monitoring his Facebook account, (2) the First Amendment requires the State to prove he subjectively intended to make a threat when he made the Facebook post, and (3) the district court erred in admitting testimony from Officer Arnold about the contents of M.C.'s Facebook page.

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The Hearing Master Did Not Err in Allowing Officer Arnold to Testify About the Content of M.C.'s Facebook Page

M.C. argues that the hearing master erred in allowing Officer Arnold to testify about the contents of M.C.'s Facebook page because (1) Officer Arnold did not have personal knowledge regarding who actually made various posts on M.C.'s Facebook account, and (2) Officer Arnold's testimony constituted inadmissible hearsay. M.C.'s arguments lack merit. First, there was "sufficient direct or circumstantial corroborating evidence of authorship" to authenticate M.C.'s Facebook posts as his own. Rodriguez v. State, 128 Nev. Adv. Rep. 14,    , 273 P.3d 845, 849 (2012). Specifically, he admitted making the killing-spree post, subsequent communications referred back to that post, and there is no indication that someone else accessed his Facebook account. Cf. id. at    , 273 P.3d 849-50 (authenticating [*6]  text messages was complicated by the fact that multiple defendants had access to the relevant phone). Second, Officer Arnold's statements about the contents of M.C.'s Facebook page (namely, that he referred to himself as "Murder Man" and claimed an affiliation with the 004 Hoodsman street gang) did not constitute hearsay because they were party admissions. See NRS 51.035(3)(a) (party admissions are exempt from the general hearsay rule). Therefore, the district court did not err in relying on testimony from Officer Arnold about the contents of M.C.'s Facebook page.

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Criminal Spoliation Can Be A Due Process Violation — Defendant Must Show That (1) The Evidence Had Exculpatory Value Before It Was Destroyed, (2) Defendant Is Unable to Obtain Comparable Evidence by Reasonable Means, and (3) Bad Faith Failure to Preserve

1) Rule 11 Sanctions: “No First Amendment Exception to a Rule 11 Violation” — “[T]he First Amendment Covers Novel, Nonfrivolous Arguments, But Many Frivolous Arguments Are Also Novel” (Good Quotes) — Frivolous To Continue To Make Rejected Novel Arguments; (2) FRAP 38 Sanctions: District Court In Best Position to Set Sanctions, Attorney’s Fees and Costs

3 Prerequisites for Inherent Power and § 1927 Sanctions in Second Circuit: (1) Bad Faith, (2) Conduct That Is Entirely Without Color [Thus, An Ill-Motivated Colorable Position Appears to Be Protected in the Second Circuit], and (3) Improper Purpose— “To Gain A Strategic Advantage” Is An Improper Purpose — Due Process Satisfied by Opponent’s Motion and Multiple Court Conferences, After Which Target Was Allowed to Submit Additional Letters

Inherent Power Sanctions — Untimeliness as Laches — Laches Properly Applied to Deny Sanctions Motion — Note Waived Defenses to Laches

Rule 37(c)(1) Sanctions: Substantial Justification or Harmless Error (Ninth Circuit Factors) — Erie: When State Supreme Court Has Not Squarely Addressed an Issue, Circuit Must Predict How It Would Rule, Using Intermediate Appellate Decisions, Decisions from Other Jurisdictions, Statutes, Treatises And Restatements for Guidance

(1) Appellate Review of Inherent Power Sanctions (7th Circuit): Factual Findings Reviewed for Clear Error, Choice of Sanction for Abuse of Discretion — 4-Element Test for Reversal; (2) Sanctions and Class Actions: Monetary Sanctions Properly Imposed on Defendants for Improper Communications with Class Members (Represented Parties) — “[I]f The Class And The Class Opponent Are Involved In An Ongoing Business Relationship, Communications From The Class Opponent To The Class May Be Coercive” (Good Quote); (3) Monetary Sanctions under Goodyear v. Haeger: If Same Fact-Gathering Would Have Been Conducted Absent The Misconduct, No But-For Causation — But Only “Rough Justice” Required, “Not Accountant-Like Precision” (Good Quote) — Once Misconduct Is Clear, Time Spent Ferreting It Out Compensable under Goodyear; (4) Goodyear Did Not Overrule Long-Standing Rule That Courts May Impose Modest Civil Monetary Sanctions to Curb Litigation Abuse; (5) Appellate Jurisdiction Lacking Where Sanctioned Attorney Fails to File Notice of Appeal and Lawyer’s Intent to Appeal Not Apparent from Client’s Notice; (5) Rule 11 Improper Purpose — Party May Have Many Purposes for Pursuing Claim — As Long As Claim Is Supported by Good Faith Belief in the Merits, “A Parallel Reason Does Not Violate Rule 11” — To Deny A Motion for Sanctions, The District Court Need Not Address Every Argument: “Arguments Clearly Without Merit Can, And For The Sake Of Judicial Economy Should, Be Passed Over In Silence” (Good Quote); Non-Monetary Sanction on Counsel: Complete Twice The Required Amount Of Professional Responsibility Hours For Her Next Continuing Legal Education Cycle Imposed By The State Bar

(1) Spoliation: Sanctions Are Warranted Only If the Movant Establishes That A Reasonable Trier of Fact Could Find That The Destroyed Evidence Would Support A Claim Or Defense — § 1927 Sanctions: “Courts Often Refuse to Award Sanctions When Both Parties Contributed to the Waste of Judicial Resources” (Good Quote)

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(1) FRAP 38 Sanctions Inapt for Appeal That Is Weak — “Borderline Frivolous” — Test Is Whether Appellant Should Have Known the Appeal Had Absolutely No Chance of Success — (2) Lay Opinion Testimony under Rule 701: Nub of Helpfulness Requirement Is to Exclude Testimony When the Witness Is No Better Suited Than the Jury to Assess the Issue; (3) Appeals: No Appeal from Denial of Motion for Judgment As a Matter of Law Unless Appellant Made That Motion Before Case Was Submitted to Jury

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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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