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

Text Evidence: Photos of Texts Don’t Violate Best Evidence, = 1001(d) Duplicate Original — Authentication by (a) Testimony of Wit. Who Texted with Def., (b) Self-ID’ing Text, (c) No. Assigned to Def.; (d) No. Linked to Def. in Wit.’s Phone

Pierce v. State, 2017 Ga. LEXIS 940 (Ga. Sup. Ct. Oct. 30, 2017): Appellant Matthew Caleb Pierce was tried before a jury and found guilty on six counts of aggravated child molestation, two counts of child molestation, two counts of sexual battery, and one count each of sexual exploitation of a child, distribution of Hydromorphone, and ...
Pierce v. State, 2017 Ga. LEXIS 940 (Ga. Sup. Ct. Oct. 30, 2017): Appellant Matthew Caleb Pierce was tried before a jury and found guilty on six counts of aggravated child molestation, two counts of child molestation, two counts of…
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Vexatious Litigant Injunctions Are Issued under Inherent Power as Codified by All Writs Act — Requiring Lawyer for Future Suit, Not Prescreening by Court, Saves Judicial Time—Post-Dismissal Inj’n OK—Meaning of Abuse of Discretion (11th Cir.)

Klayman v. DeLuca, 2017 WL 4791081 (11th Cir. Oct. 24, 2017): PER CURIAM: *1 Larry Klayman, an attorney proceeding pro se, appeals the district court’s injunction barring him from filing pro se lawsuits against Baker & Hostetler, LLP and attorneys Suzanne Jambe, James Rollinson, and Hewitt Shaw< ...
Klayman v. DeLuca, 2017 WL 4791081 (11th Cir. Oct. 24, 2017): PER CURIAM: *1 Larry Klayman, an attorney proceeding pro se, appeals the district court’s injunction barring him from filing pro se lawsuits against Baker & Hostetler, LLP and…
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Inherent Power Sanctions: Referral to Disciplinary Authority for Threatening to Sue Adverse Expert If Opinion Not Withdrawn + Misrepresentation on Appeal — “The Decision to Impose Sanctions Is Not to Be Made Lightly” (Good Quote)

Gross v. Sun Life Assur. Co., 2018 U.S. App. LEXIS 1190 (1st Cir. Jan. 18, 2018): More than four years ago, we remanded this case with the instruction that appellant Sun Life Assurance Co. reconsider its rejection of Diahann Gross's claim for disability benefits based on chronic and severe pain. See
Gross v. Sun Life Assur. Co., 2018 U.S. App. LEXIS 1190 (1st Cir. Jan. 18, 2018): More than four years ago, we remanded this case with the instruction that appellant Sun Life Assurance Co. reconsider its rejection of Diahann Gross's…
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Rule 11 Safe Harbor — No Need to Serve Brief or Supporting Affidavits to Start 21-Day Period — Notice of Motion Plus Correspondence Concerning Motion Sufficient — Bad Faith Inferred from Recklessly Citing Bad Law and Cases Hurting Citer’s Position

Malkan v. Mutua, 2017 U.S. App. LEXIS 21766 (2d Cir. Oct. 30, 2017): SUMMARY ORDER ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of said District Court be and it hereby is AFFIRMED. Appellants Jeffrey Malkan and Frederic Ostrove ...
Malkan v. Mutua, 2017 U.S. App. LEXIS 21766 (2d Cir. Oct. 30, 2017): SUMMARY ORDER ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of said District Court be and it hereby is AFFIRMED. Appellants…
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Rule 403 Not for Detrimental or Monotonous Evid., Must Arouse Horror — Flight Always Evid. of Guilt — Can’t Force Adversary to Accept Stip—Text Authentication via Cellebrite—Surveillance Video Auth’n—Must Get Ruling on Objection to Preserve It

Taylor v. Commonwealth, 2017 Ky. Unpub. LEXIS 63 (Ky. Sup. Ct. Nov. 2, 2017): On June 15, 2016, a Fayette County jury convicted Robert Markham Taylor of Murder, Kidnapping, and Tampering with Physical Evidence. The jury recommended sentences of twenty-two years each for the Murder and Kidnapping charges and five years for Tamp ...
Taylor v. Commonwealth, 2017 Ky. Unpub. LEXIS 63 (Ky. Sup. Ct. Nov. 2, 2017): On June 15, 2016, a Fayette County jury convicted Robert Markham Taylor of Murder, Kidnapping, and Tampering with Physical Evidence. The jury recommended sentences of twenty-two…
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Rule 37(b) and Inherent Power Sanctions — Dismissal for Disobeying Court Order Requiring Production of Computer for Examination and for Perjury in Testimony at Sanctions Hearing

Lambert v. Worldwide Mktg. Techs. Corp., 2017 WL 3833027 (11th Cir. Sept. 1, 2017): Angela Lambert appeals pro se the dismissal of her complaint against her former employer, Worldwide Marketing Technologies Corporation, and its owners, Claudina Pennell, and Daniel Pennell. The district court dismissed Lambert’s comp ...
Lambert v. Worldwide Mktg. Techs. Corp., 2017 WL 3833027 (11th Cir. Sept. 1, 2017): Angela Lambert appeals pro se the dismissal of her complaint against her former employer, Worldwide Marketing Technologies Corporation, and its owners, Claudina Pennell, and Daniel Pennell.…
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Rule 11 Sanctions: Letter to Witness’s Counsel Challenging Facts in Witness’s Affidavit, Calling It Intentional Interference ≠ Witness Tampering — Meaning of Abuse of Discretion (6th Circuit)

Wal-Mart Real Estate Business Trust v. Eastwood, LLC, 2017 WL 3971441 (6th Cir. Sept. 8, 2017): *1 In this real estate dispute between lessors Eastwood, LLC, and Eastwood Holdings, LLC, (collectively, “Eastwood”) and lessee Wal-Mart Real Estate Business Trust (“Wal-Mart”), Wal-Mart sought to expand it ...
Wal-Mart Real Estate Business Trust v. Eastwood, LLC, 2017 WL 3971441 (6th Cir. Sept. 8, 2017): *1 In this real estate dispute between lessors Eastwood, LLC, and Eastwood Holdings, LLC, (collectively, “Eastwood”) and lessee Wal-Mart Real Estate Business Trust (“Wal-Mart”),…
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Judicial Notice of Internet Evidence — Court Has Discretion to Take Notice of Contents of Website of Counsel Who Filed Fee Application

Bluelink Mktg. LLC v. Carney, 2017 U.S. Dist. LEXIS 191978 (S.D.N.Y. Nov. 20, 2017): Plaintiffs Bluelink Marketing LLC and Gerald Owens (together, "Plaintiffs") brought this action against defendants Declan Carney and Tagcade LLC (together, "Defendants") for breach of contract, fraudulent conveyance, and breach of ...
Bluelink Mktg. LLC v. Carney, 2017 U.S. Dist. LEXIS 191978 (S.D.N.Y. Nov. 20, 2017): Plaintiffs Bluelink Marketing LLC and Gerald Owens (together, "Plaintiffs") brought this action against defendants Declan Carney and Tagcade LLC (together, "Defendants") for breach of contract, fraudulent…
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Texted Requests or Directions Are Not Hearsay — [While Court May Consider Hearsay for Authentication Purposes under 104(a),] Authenticating Witness Must Be Produced at Trial If Authentication Challenged

People v. Clark, 2017 Cal. App. Unpub. LEXIS 7686, 2017 WL 5151385 (Cal. Ct. App. Nov. 7, 2017): After a jury trial, defendant was convicted of receiving stolen property. Among other things, de ...
People v. Clark, 2017 Cal. App. Unpub. LEXIS 7686, 2017 WL 5151385 (Cal. Ct. App. Nov. 7, 2017): After a jury trial, defendant was convicted of receiving stolen property. Among other things, defendant contends the trial court erroneously admitted…
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Rule 37(d) Sanctions Likely Inapt If Witness Appears But Fails to Answer Questions — Answering Questions on Several Topics ≠ Failure to Appear — Movant’s Own Misconduct Justifies Rejection of Motion for Sanctions

Watkins v. Infosys, 2017 U.S. App. LEXIS 25193 (9th Cir. Dec. 13, 2017): *   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Marilyn Watkins ("Watkins") sued her former employer, Infosys, Ltd. ("Infosys"), an information technology com ...
Watkins v. Infosys, 2017 U.S. App. LEXIS 25193 (9th Cir. Dec. 13, 2017): *   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Marilyn Watkins ("Watkins") sued her former employer,…
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Recent Posts

Electronic Spoliation/Rule 37(e): (1) Finding of Recklessness But Neither Gross Negligence Nor Willfulness in Loss of Video Evidence Precludes Rule 37(e)(2)’s Severest Sanctions Because (i) No Intent to Deprive and (ii) Rule 37(e)(2) Displaces District Court’s Power to Invoke Inherent Power to Impose Those Sanctions — (2) Appellate Review = Abuse of Discretion, With The Caveat That Whether The District Court Applied The Correct Legal Standards Is Reviewed De Novo — (3) Inherent Power Is Often Available As An Alternate Source of Sanctioning Power But Can Be Limited by Rule or Statute, Something Which Courts Do Not Lightly Presume — (4) The Text of Rule 37(e)(2), As Confirmed by the Advisory Committee Note, Displaces Inherent Power to Impose the Sanctions Specified in the Rule or Any More Severe Sanctions — (5) “Intent to Deprive” in Rule 37(e)(2) = “The Willful Destruction Of Evidence With The Purpose Of Avoiding Its Discovery By An Adverse Party” — (6) Appellate Standing Conferred by Virtue of Issuance of Sanctions Regardless of Merits Outcome — (7) Value of Advisory Committee Notes in Interpreting Rules Enacted without Change Despite General Reticence to Rely on Legislative History

RICO: (1) Plaintiff Need Not Suffer Injury from Each Predicate Act to Establish Standing, And The Pattern May Include Predicates As to Which No Plaintiff Has Standing — (2) 7 Elements of a Civil RICO Claim (2d Circuit Articulation) Which Must Be Established As to Each Defendant — (3) Requirements of an Association-in-Fact Enterprise — (4) Each Defendant Must Personally Commit 2 or More Predicate Acts — (5) Pattern of Racketeering Activity: Horizontal and Vertical Elements — (6) No Requirement That All Members of a RICO Enterprise Joined at Inception — Can Join Over Time/Others Can Quit — (7) Cannot Charge 2 Predicate Acts Where One Action Violates Two Statutes — (8) A Footnote to Consider for Briefs: “Unless Otherwise Noted, When Quoting Judicial Decisions This Order Accepts All Alterations And Omits All Citations, Footnotes, And Internal Quotation Marks.”

For An Appeal to Be Timely, A Motion for Reconsideration in The District Court (A Rule 59(e) Motion) Must Be Filed, And Not Just Served within 30 Days of The Decision, to Toll The 30-Day Period for Filing An Appeal

There Is No Good-Faith Defense For Issuing An Overly Burdensome Subpoena

Purposes of Rule 37 and Section 1927 Sanctions

While Rule 11 Doesn’t Apply to Appellate Proceedings (Unless It Has Been Incorporated in Local Appellate Rules), Rule 11 Caselaw Is Looked to for Guidance in Interpreting Applicable Sanctions Powers on Appeal

Rule 11 Sanctions & Appellate Review: Abuse of Discretion Standard Applies Unless Sanctions Are Based Solely (Not Just in Part) on Legal Issues, in Which Case Review Is De Novo

Rule 37(b)(2)(A) Sanctions for Altering Expert’s 26(a)(2)(B) Report — Without the Expert’s Knowledge or Approval — by Converting It from PDF to Word, Changing Headings and Other Formatting, and Omitting a Page of Relevant Text and Appendices, Even Though Expert Testified That The Overall Substance of the Report Was Unchanged — Rule 37(b)(2)(A) Sanctions May Be Reversed If Failure to Comply with Discovery Order Was Due to Misunderstanding or Inability to Comply

Spoliation: Fed. R. Civ. P. 37(e) Imposes a Higher Standard — Intent — Than Fourth Circuit Law Previously Applied to Spoliation of Electronically-Stored Information (And Still Does As to Non-ESI) — Willfulness vs. Intent

Inherent Power and § 1927 Sanctions: Removal of counsel from case, referral for disciplinary action, and award of fees and costs for assaulting opposing counsel at deposition — Failure to request hearing waive any right to a hearing — Notice and opportunity to be heard required before sua sponte sanctions imposed, whether under Rule 11, the inherent power of the court or § 1927 — Notice may come from court or opposing counsel — Order imposing sanctions cannot provide notice of sanctions — Nature of bad faith requirement for inherent power sanctions: bad faith to obstruct the judicial process or bring about violation of a court order — Sanctions proceeding need not defer (Younger abstention) to disciplinary proceeding involving the same conduct — Sanctions proceeding doesn’t threaten to interfere with disciplinary proceeding — Why District Court is accorded significant deference in matters concerning attorney’s fees

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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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