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

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 LEXIS 24361 (11th Cir. Dec. 1, 2017) (unpublished): PER CURIAM: Patrick Jacques appeals his below-the-guidelines range sentence, imposed after he was convicted by a jury for (1) possession of a firearm and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 LEXIS 24361 (11th Cir. Dec. 1, 2017) (unpublished): PER CURIAM: Patrick Jacques appeals his below-the-guidelines range sentence, imposed after he was convicted by a jury for (1) possession of a firearm and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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Electronic Hearsay: Fact Business Keeps and Receives Emails Doesn’t Make Them Business Records (Good Quote) — 803(6) Elements Must Be Satisfied — Business Records Exception Is Predicated on Accuracy & Reliability; Email Is Typically More Casual

United States v. Cone, 714 F.3d 197 (4th Cir. 2013): Donald Cone and Chun-Yu Zhao were convicted of various charges under an indictment arising out of a scheme to import and resell counterfeit pieces of computer networking equipment, some of which bore the trademark of Cisco Systems, Inc. ("Cisco"). On appea ...
United States v. Cone, 714 F.3d 197 (4th Cir. 2013): Donald Cone and Chun-Yu Zhao were convicted of various charges under an indictment arising out of a scheme to import and resell counterfeit pieces of computer networking equipment, some of …
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Rule 37 & 41 Sanctions — Reversible Error to Dismiss without Considering Lesser Sanctions — 6th Circuit Leaves Open Possibility Dismissal Might Be OK for Discovery Delay Absent Violation of Court Order in Extreme Circumstances

Dominguez v. Crosby Tugs, LLC, 2017 WL 3271117 (5th Cir. Aug. 1, 2017): Jorge Dominguez, Jr., a Jones Act seaman employed by Crosby Tugs (“Crosby”), was allegedly injured when he was directed to manually move a marine fire extinguisher. Dominguez brought a personal injury suit against Crosby.
Dominguez v. Crosby Tugs, LLC, 2017 WL 3271117 (5th Cir. Aug. 1, 2017): Jorge Dominguez, Jr., a Jones Act seaman employed by Crosby Tugs (“Crosby”), was allegedly injured when he was directed to manually move a marine fire extinguisher. Dominguez …
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Texts – Admissibility: Recipient May Testify As to Contents of Lost Text Per Rule 1004 Consistently with Best Evidence Rule — “We Will Not Reverse the Trial Court When It Reached the Right Result Albeit for the Wrong Reason” (Good Quote)

People v Washington, 2017 Mich. App. LEXIS 1774 (Mich. Ct. App. Nov. 9, 2017): A jury convicted defendant of two counts of first-degree criminal sexual conduct (victim under 13/defendant 17 or older) (CSC-I),
People v Washington, 2017 Mich. App. LEXIS 1774 (Mich. Ct. App. Nov. 9, 2017): A jury convicted defendant of two counts of first-degree criminal sexual conduct (victim under 13/defendant 17 or older) (CSC-I), MCL 750.520b(2)(b); assault with intent to…
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§ 1927 Sanctions Do Not Require a Finding of Subjective Bad Faith in Seventh Circuit

Pintea v. Gurvey, 2017 U.S. App. LEXIS 12444 (7th Cir. July 12, 2017): Adrian and Marinela Pintea are first-generation immigrants of Romanian origin who owned their primary residence in Chicago and a smaller rental property nearby. At some point they defaulted on their mortgage and both properties fell into foreclosure. As is the case ...
Pintea v. Gurvey, 2017 U.S. App. LEXIS 12444 (7th Cir. July 12, 2017): Adrian and Marinela Pintea are first-generation immigrants of Romanian origin who owned their primary residence in Chicago and a smaller rental property nearby. At some point they…
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Recent Posts

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

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

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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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