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

RICO Standing Is Not Jurisdictional, Thus Is Judged under 12(b)(6), Not 12(b)(1) — Plaintiff Asserting Derivative Claim Cannot Show Proximate Cause under RICO

Saia v. Flying J. Inc., 2017 WL 6398013 (6th Cir. July 11, 2017): *1 Louis Saia, a Tennessee resident proceeding pro se, appeals the district court’s judgment dismissing his action for lack of standing. This case has been referred to a panel of the court that, upon examination, unanimously agrees that oral argument ...
Saia v. Flying J. Inc., 2017 WL 6398013 (6th Cir. July 11, 2017): *1 Louis Saia, a Tennessee resident proceeding pro se, appeals the district court’s judgment dismissing his action for lack of standing. This case has been referred to…
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RICO: Non-Fraud Predicates Require Specific Factual Allegations; Hard Bargaining vs. Extortion — Rule 11 Sanctions: Complaint a “Quagmire of Wordy & Repetitious Verbiage” (Good Quote) — Court Must State Basis for Attorney’s Fees Award

Cervantes Orchards & Vineyards, LLC v. Deere & Co., 2017 U.S. App. LEXIS 25413 (9th Cir. Dec. 15, 2017): Cervantes Orchards and Vineyards, along with Cervantes Nurseries, Cervantes Packing & Storage, Manchego Real, Jose G. Cervantes, and Cynthia C. Cervantes, (collectively "Cervantes"),
Cervantes Orchards & Vineyards, LLC v. Deere & Co., 2017 U.S. App. LEXIS 25413 (9th Cir. Dec. 15, 2017): Cervantes Orchards and Vineyards, along with Cervantes Nurseries, Cervantes Packing & Storage, Manchego Real, Jose G. Cervantes, and Cynthia C. Cervantes,…
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Sixth Circuit Appears to Erroneously Affirm § 1927 Sanctions Imposed on Non-Attorney Pro Se Whose Conduct Could Have Been Sanctioned under Rule 11 or the Inherent Power

In re: Polyurethane Foam Antitrust Litigation, 2017 U.S. App. LEXIS 25352 (6th Cir. Dec. 14, 2017) (unpublished): ORDER Christopher Andrews, proceeding pro se, appeals the district court's judgment imposing sanctions against him (No. 17-3361) and its order denying his motion to stay sanctions pending the appeal of t ...
In re: Polyurethane Foam Antitrust Litigation, 2017 U.S. App. LEXIS 25352 (6th Cir. Dec. 14, 2017) (unpublished): ORDER Christopher Andrews, proceeding pro se, appeals the district court's judgment imposing sanctions against him (No. 17-3361) and its order denying his motion …
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Hearsay Statements of Joint Venturers Admissible for Their Truth under Co-Conspirator Exception (Rule 801(d)(2)(E)) If Proponent Proves by Independent, Non-Hearsay Evidence (i) Existence of Joint Venture and (ii) That Statement Was in Furtherance of It

Commonwealth v. Holley, 2017 Mass. LEXIS 889 (Mass. Dec. 14, 2017): On the morning of October 17, 2012, Alfonso Rivas was in his apartment building anticipating a sale of marijuana to Reginald Holley when Rivas was fatally shot in the head. Holley and Oasis Pritchett were convicted of felony-murder in the first degree, armed robbery, ...
Commonwealth v. Holley, 2017 Mass. LEXIS 889 (Mass. Dec. 14, 2017): On the morning of October 17, 2012, Alfonso Rivas was in his apartment building anticipating a sale of marijuana to Reginald Holley when Rivas was fatally shot in the…
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Is a Spoliation Instruction Permissible in a Criminal Case? — Eleventh Circuit Says It Has Yet to Decide

United States v. Jacques, 2017 U.S. App. LEXIS 24361 (11th Cir. Dec. 1, 2017) (unpublished): PER CURIAM: Patrick Jacques appeals his below-the-guidelines range sentence, imposed after he was convicted by a jury for (1) possession of a firearm and ammunition by a felon, (2) possession of a firearm in furtherance of a drug traffi ...
United States v. Jacques, 2017 U.S. App. LEXIS 24361 (11th Cir. Dec. 1, 2017) (unpublished): PER CURIAM: Patrick Jacques appeals his below-the-guidelines range sentence, imposed after he was convicted by a jury for (1) possession of a firearm and ammunition…
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Discovery of Income Tax Returns (2-Part Test) — Financial Information Relevant to a Determination of Punitive Damages: Discoverable before Trial? (Case Law Split)

Marsteller v. Butterfield 8 Stamford LLC, 2017 U.S. Dist. LEXIS 195347  (D. Conn. Nov. 28, 2017): Plaintiff Lauren E. Marsteller ("plaintiff") has filed a motion seeking to compel de ...
Marsteller v. Butterfield 8 Stamford LLC, 2017 U.S. Dist. LEXIS 195347  (D. Conn. Nov. 28, 2017): Plaintiff Lauren E. Marsteller ("plaintiff") has filed a motion seeking to compel defendants Butterfield 8 Stamford LLC, Public House Investments LLC, Lolas Stamford…
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RICO Pleading — Conclusory Allegations of Scienter Insufficient to Plead Predicate Acts under Iqbal

Black Diamond Land Mgmt. LLC v. Twin Pines Coal Inc., 2017 WL 3635178 (11th Cir. Aug. 24, 2017): Plaintiff’s Second Amended Complaint (“Complaint”) asserts that Defendants wrongly appropriated coal and timber resources from Plaintiff’s land. This appeal concerns whether the district court erred in concluding that Plaintiff’s ...
Black Diamond Land Mgmt. LLC v. Twin Pines Coal Inc., 2017 WL 3635178 (11th Cir. Aug. 24, 2017): Plaintiff’s Second Amended Complaint (“Complaint”) asserts that Defendants wrongly appropriated coal and timber resources from Plaintiff’s land. This appeal concerns whether the…
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Email Isn’t Business Record unless Declarant’s Statement Qualifies as Business Record — All Elements of 803(6), Including Regularity, Must Be Satisfied — Forwarding Email May/May Not = Adoptive Admission — Double Hearsay Issues

In re: Oil Spill by the Oil Rig "Deepwater Horizon", 2012 U.S. Dist. LEXIS 3406, 87 Fed. R. Evid. Serv. (Callaghan) 492, 2012 WL 37373 (E.D. La. Jan. 11, 2012): Before the Court are letter briefs from the PSC (Rec. Doc. 4340-1, October 17, 2011; Rec. Doc. 4631, November 16, 2011; Second ltr. dated November 16, 2011; and Ltr. ...
In re: Oil Spill by the Oil Rig "Deepwater Horizon", 2012 U.S. Dist. LEXIS 3406, 87 Fed. R. Evid. Serv. (Callaghan) 492, 2012 WL 37373 (E.D. La. Jan. 11, 2012): Before the Court are letter briefs from the PSC (Rec.…
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Facebook Admissibility: Third Parties’ Comments on Witness’s Page Not Hearsay When Offered to Prove the Fact That the Subject Matter Was Being Discussed and Not for the Truth of the Comments

State v. Krause, 2017 Ohio App. LEXIS 4281 (Ohio Ct. App. Sept. 29, 2017):  [*P1]  Appellant, Richard A. Krause, appeals from the June 9, 2016 sentencing entry of the Willoughby Municipal Court. For the following reasons, the judgment of the trial court is affirmed. Procedural History< ...
State v. Krause, 2017 Ohio App. LEXIS 4281 (Ohio Ct. App. Sept. 29, 2017):  [*P1]  Appellant, Richard A. Krause, appeals from the June 9, 2016 sentencing entry of the Willoughby Municipal Court. For the following reasons, the judgment of the…
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Rule 37(c)(1) Sanctions: Exclusion of Damages Evidence for Willful Failure to Include Computation in 26(a)(1) Disclosure OK Where Lesser Sanctions No Longer Available — Appeals: Failure to Brief Issue ID’ed in Brief as Presented for Review Waives It

Silver State Broad., LLC v. Bergner, 2017 WL 6047537 (9th Cir. Dec. 7, 2017): *1 Plaintiffs Silver State Broadcasting, LLC, Royce International Broadcasting Corporation, and Golden State Broadcasting, LLC (collectively, “the Broadcasters”) appeal from the district court’s order granting summary judgment to defen ...
Silver State Broad., LLC v. Bergner, 2017 WL 6047537 (9th Cir. Dec. 7, 2017): *1 Plaintiffs Silver State Broadcasting, LLC, Royce International Broadcasting Corporation, and Golden State Broadcasting, LLC (collectively, “the Broadcasters”) appeal from the district court’s order granting summary…
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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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