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

Full Social Media Authentication Not Required for Photo Pulled from Facebook — Origin of Photo Not Critical — Judge Need Not Be Persuaded of Authenticity, As Long As a Jury Reasonably Could Be

Beaty v. State, 2017 Tex. App. LEXIS 10694  (Tex. Ct. App. Nov. 15, 2017): MEMORANDUM OPINION A jury found appellant Phillip Beaty guilty of aggravated assault with a deadly weapon. See
Beaty v. State, 2017 Tex. App. LEXIS 10694  (Tex. Ct. App. Nov. 15, 2017): MEMORANDUM OPINION A jury found appellant Phillip Beaty guilty of aggravated assault with a deadly weapon. See Tex. Penal Code § 22.02(a)(2). The jury then…
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Inherent Power Sanctions: 10th Cir. Holds It Violates Discovery Stay to Take Consensual Interview of 1 Defendant under Oath As Part of Settlement to Use Against Others on SJ — Deposition-Like Transcript (Improper) vs. Affidavit (OK) — Transcript Out

Marin v. King, 2018 U.S. App. LEXIS 100 (10th Cir. Jan. 3, 2018): ORDER AND JUDGMENT* This case arises out of the execution of three search warrants on a New Mexico ranch owned by Plaintiffs Mario and Reyes Marin. ...
Marin v. King, 2018 U.S. App. LEXIS 100 (10th Cir. Jan. 3, 2018): ORDER AND JUDGMENT* This case arises out of the execution of three search warrants on a New Mexico ranch owned by Plaintiffs Mario and Reyes Marin.…
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Sanctions: Unquantified Order Requiring Pl’s Counsel to Pay Fees for Civil Contempt & §1927 / Rule 11 Violations Is Unappealable Even If Def Won’t Move for Fees & Case Is Suspended until Fees Are Paid & Even Though Non-Party May Appeal Contempt

Cruz v. Fulton, 2018 WL 297191 (5th Cir. Jan. 4, 2018): PER CURIAM:* In a contempt order against counsel in the underlying litigation, the district court ordered Louis R. Koerner, plaintiff’s lead counsel, “to pay all of the fees, costs, and expenses incurred by the defendant, Tracy Fulton, from September 3, 2014 up ...
Cruz v. Fulton, 2018 WL 297191 (5th Cir. Jan. 4, 2018): PER CURIAM:* In a contempt order against counsel in the underlying litigation, the district court ordered Louis R. Koerner, plaintiff’s lead counsel, “to pay all of the fees, costs, …
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Rule 59(e) Motion for Reconsideration Based on Newly Discovered Evidence Is Not Proper Vehicle for Asserting Altogether New Claim

Zheng v. Soufun Holdings Ltd., 2017 U.S. App. LEXIS 16859 (6th Cir. May 18, 2017): Xiaoguang Zheng, Fuqing Chen, Xudong Song, Zhenfen Huang, and Sunshine International, LLC ("Sunshine"), proceeding through counsel, appeal the district court's judgment dismissing their second amended complaint against SouFun Holdings, Ltd ...
Zheng v. Soufun Holdings Ltd., 2017 U.S. App. LEXIS 16859 (6th Cir. May 18, 2017): Xiaoguang Zheng, Fuqing Chen, Xudong Song, Zhenfen Huang, and Sunshine International, LLC ("Sunshine"), proceeding through counsel, appeal the district court's judgment dismissing their second amended…
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Rule 37[(c)] Sanctions & Multi-District Litigation: MDL Court Has “Wide Latitude” to Dismiss for Non-Compliance with Court Order Where Party on Notice & Has Opportunity to Respond — 37(b) Dismissal Factors (3d Cir.)

In re Avandia Mktg. & Sales Pracs. & Prods. Liab. Lit., 2017 WL 1401285 (3d Cir. April 19, 2017): PER CURIAM *1 The Mayfields appeal pro se from the District Court’s order dismissing their complaint with prejudice after they failed to comply with a pretrial discovery order. We will affirm. I. Ro ...
In re Avandia Mktg. & Sales Pracs. & Prods. Liab. Lit., 2017 WL 1401285 (3d Cir. April 19, 2017): PER CURIAM *1 The Mayfields appeal pro se from the District Court’s order dismissing their complaint with prejudice after they failed…
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Email [Text] Evidence: Request or Proposal ≠ Hearsay Because It Doesn’t Assert the Truth of Any Fact — Photo of Email Must Be Authenticated As Photo (Fair & Accurate) and Writing (Circumstantial Evid., Including Contents)

People v. Dodge, 2017 Cal. App. Unpub. LEXIS 8503, 2017 WL 6350073 (Cal. Ct. App. Dec. 13, 2017): A jury convicted defendant Aaron Dodge of several drug offenses and acquitted him of several others. The jury found him guilty of possession for sale of LSD (
People v. Dodge, 2017 Cal. App. Unpub. LEXIS 8503, 2017 WL 6350073 (Cal. Ct. App. Dec. 13, 2017): A jury convicted defendant Aaron Dodge of several drug offenses and acquitted him of several others. The jury found him guilty of…
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3d Circuit’s 7-Factor Test for Admitting Tape Recordings in Criminal Cases Is Not The Sole Test — Tape Recordings of Voicemails Admitted on Testimony of Recipient/Taper — Gaps in Chain of Custody Go to Weight

United States v. Credico, 2017 U.S. App. LEXIS 25472 (3d Cir. Dec. 18, 2017) (affirming the decision excerpted in our post of Nov. 19, 2016): Defendant Justin Credico appeals from his conviction after a jury trial for threatening federal agents and their immediate family members, in violation of 18 U.S.C. § 115(a)(1).
United States v. Credico, 2017 U.S. App. LEXIS 25472 (3d Cir. Dec. 18, 2017) (affirming the decision excerpted in our post of Nov. 19, 2016): Defendant Justin Credico appeals from his conviction after a jury trial for threatening federal agents…
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Spoliation: Bad Faith Needed in 10th Cir. But Breach of Reg Gives Rise to Bursting Bubble Presumption (R. 301) Against Destroyer—Opening Statement Opens Door to Evid on Matters Mentioned, Waives In Limine Motion, Which Must Be Renewed at Trial (R. 103)

EEOC v. JetStream Ground Servs., Inc., 2017 U.S. App. LEXIS 26867 (10th Cir. Dec. 28, 2017): A jury rejected an employment-discrimination claim against JetStream Ground Services, Inc. filed by several Muslim women and the Equal Employment Opportunity Commission (EEOC) (collectively, Plaintiffs1
EEOC v. JetStream Ground Servs., Inc., 2017 U.S. App. LEXIS 26867 (10th Cir. Dec. 28, 2017): A jury rejected an employment-discrimination claim against JetStream Ground Services, Inc. filed by several Muslim women and the Equal Employment Opportunity Commission (EEOC) (collectively, …
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RICO Conspiracy Requires Agreement to Facilitate Scheme That Includes Operation or Management of RICO Enterprise (9th Circuit)

United States v. Young, 2017 U.S. App. LEXIS 26858 (9th Cir. Dec. 27, 2017): *   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. On August 2, 2009, alleged Pueblo Bishops Bloods gang member Jesse McWayne was killed during a drive-by shooting in the Puebl ...
United States v. Young, 2017 U.S. App. LEXIS 26858 (9th Cir. Dec. 27, 2017): *   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. On August 2, 2009, alleged Pueblo…
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Rule 16(f) Sanctions: Failure to Notify Adversary of Change in Settlement Posture Before Settlement Conference = Not Participating in Good Faith — Appeals: Failure to Include Transcript Bars Review of Findings of Fact Concerning Hearing

Koehn v. Tobias, 2017 WL 3327009 (7th Cir. Aug. 4, 2017): Plaintiff-appellee Peter Koehn filed suit under
Koehn v. Tobias, 2017 WL 3327009 (7th Cir. Aug. 4, 2017): Plaintiff-appellee Peter Koehn filed suit under 42 U.S.C. § 1983, alleging that Defendants-appellants Lauri Tobias and Margaret Segerston (Defendants), his former employers, unlawfully retaliated against him for exercising…
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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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