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 “Nexus” Element — Needed Relationship among Defendant, D’s Involvement in Enterprise’s Affairs and Pattern — Same in Civil, Criminal Cases — Racketeering Must Be One Means by Which Defendant Participates in Enterprise’s Affairs

United States v. Ferriero, 2017 U.S. App. LEXIS 14358 (3d Cir. Aug. 4, 2017): Joseph A. Ferriero appeals his judgments of conviction, forfeiture, and sentence based on violations of the Travel Act, 18 U.S.C. § 1952, the Racketeer Influenced and Corrupt Organizations Act ("RICO"), id. § 1962(c), and the federal wire fraud s ...
United States v. Ferriero, 2017 U.S. App. LEXIS 14358 (3d Cir. Aug. 4, 2017): Joseph A. Ferriero appeals his judgments of conviction, forfeiture, and sentence based on violations of the Travel Act, 18 U.S.C. § 1952, the Racketeer Influenced and…
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Discovery Misconduct Warranting Adverse Inference That Leads to Dismissal Does Not Require the Willfulness or Bad Faith That Is Required for Discovery Misconduct Directly Warranting Dismissal (Fed. Cir. Applying 2d Cir. Law)

Regeneron Pharmaceuticals, Inc. v. Merus NV, 2017 WL 3184400 (Fed. Cir. July 27, 2017): *1 Regeneron Pharmaceuticals, Inc. (“Regeneron”) appeals from a final judgment of the district court holding
Regeneron Pharmaceuticals, Inc. v. Merus NV, 2017 WL 3184400 (Fed. Cir. July 27, 2017): *1 Regeneron Pharmaceuticals, Inc. (“Regeneron”) appeals from a final judgment of the district court holding U.S. Patent No. 8,502,018 (“’018 patent”) unenforceable because of Regeneron’s inequitable …
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Arbitration: Diversity Jurisdiction over FAA Petition (to Compel) Is Determined by Reference to Parties to the Petition — Federal Question Jurisdiction Is Determined by Looking Through to See If Underlying Dispute Raises Federal Question

Hermés of Paris, Inc. v. Swain, 2017 U.S. App. LEXIS 15027 (2d Cir. Aug. 14, 2017): Respondent-appellant Matthew Swain appeals from a judgment of the United States District Court for the Southern District of New York (Colleen McMahon, Chief Judge). On appeal, Swain argues that the district court lacked subject matter jurisdi ...
Hermés of Paris, Inc. v. Swain, 2017 U.S. App. LEXIS 15027 (2d Cir. Aug. 14, 2017): Respondent-appellant Matthew Swain appeals from a judgment of the United States District Court for the Southern District of New York (Colleen McMahon, Chief Judge).…
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RICO: Parent Company Lacks Standing to Sue for Injuries to Subs — Strict 9(b) Application to Mail, Wire Fraud — Conspiracy Claim Falls with Underlying Substantive Violation

Am. Biocare Inc. v. Howard & Howard Attys. PLLC, 2017 U.S. App. LEXIS 15776 (6th Cir. Aug. 17, 2017): The plaintiff companies allege that the defendants [*2]  and other non-parties to the suit engaged in a Racketeer Influenced and Corrupt Organizations ("RICO") Act enterprise that "looted" the pla ...
Am. Biocare Inc. v. Howard & Howard Attys. PLLC, 2017 U.S. App. LEXIS 15776 (6th Cir. Aug. 17, 2017): The plaintiff companies allege that the defendants [*2]  and other non-parties to the suit engaged in a Racketeer Influenced and Corrupt…
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Twitter & Facebook Authentication: Circumstantial Evidence — Selfies, Corroboration of Contents (Rival Gangs, Animus), Community Awareness, Use of Phone to Log in — Rule 403: Prejudice Unfair If to Elicit Bias, Sympathy, Hatred, Contempt, Retribution

Stat v. Alias, 2017 WL 3575871 (Tenn. Ct. Crim. App. Aug. 18, 2017): *1 This case arose after a shooting occurred at Walter P. Taylor Homes apartment complex (Walter P.) on October 3, 2014, resulting in the death of the victim, Dominique Johnson. Devonte Blair was sitting next to the victim on an apartment porch when ...
Stat v. Alias, 2017 WL 3575871 (Tenn. Ct. Crim. App. Aug. 18, 2017): *1 This case arose after a shooting occurred at Walter P. Taylor Homes apartment complex (Walter P.) on October 3, 2014, resulting in the death of the…
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CAFA Local Controversy Exception: Court Is Bound by Complaint, Can’t Look to Other Evidence (Internet) — Factors for Judging If Local Defendants Can Provide “Significant Relief” or Their Conduct Is a “Significant Basis” for Suit

Christmas v. Union Pac. R.R., 2017 U.S. App. LEXIS 11724 (9th Cir. June 30, 2017): Plaintiff-Appellant Elon Christmas ("Christmas") filed a class action complaint in the Superior Court of California on February 5, 2015 alleging that Defendant Union Pacific Railroad ("Union Pacific") required certain employees to wo ...
Christmas v. Union Pac. R.R., 2017 U.S. App. LEXIS 11724 (9th Cir. June 30, 2017): Plaintiff-Appellant Elon Christmas ("Christmas") filed a class action complaint in the Superior Court of California on February 5, 2015 alleging that Defendant Union Pacific Railroad…
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RICO—Is Any Act of Criminal Copyright Infringement a Predicate Or Only Egregious Ones?—Enterprise: Affiliated Corps: Need “Something More”? (2 Case Law Splits)—Conspiracy: Agreement Inferable—Pattern Extends Thru Era of Violations

Synopsys, Inc. v. Ubiquiti Networks, Inc., 2017 U.S. Dist. LEXIS 130070 (N.D. Cal. Aug. 15, 2017): This case stems from the purported interest of defendants Ubiquiti Network Inc., UNIL, and Ching-Han Tsai to review and evaluate for licensing plaintiff Snyopsys, Inc.'s high-value [*2]  semiconductor electronic design a ...
Synopsys, Inc. v. Ubiquiti Networks, Inc., 2017 U.S. Dist. LEXIS 130070 (N.D. Cal. Aug. 15, 2017): This case stems from the purported interest of defendants Ubiquiti Network Inc., UNIL, and Ching-Han Tsai to review and evaluate for licensing plaintiff …
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Spoliation — No Abuse of Discretion to Rescind Default Judgment and Adverse Inference Instruction and Instead Impose Lesser, Monetary Sanctions

Day v. LSI Corp., 2017 U.S. App. LEXIS 15231 (9th Cir. Aug. 15, 2017): *   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Plaintiff Kenneth Day appeals from the district court's grant of summary judgment to Day's former employer, Defendant LSI C ...
Day v. LSI Corp., 2017 U.S. App. LEXIS 15231 (9th Cir. Aug. 15, 2017): *   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Plaintiff Kenneth Day appeals from the…
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Blog Admissibility — Third-Party Blog Posts Reiterating Alleged Defamation = Publication; Affidavit of Counsel Sufficient to Authenticate on Summary Judgment — Posts and Comments on Posts Admissible for Effect on Listener (Damages)

Knitting Fever, Inc. v. Eisaku Noro & Co., Ltd., 2012 WL 3235108 (E.D. Pa. Aug. 8, 2102): *1 Currently pending before the Court are Plaintiff The Knit With’s (“TKW”) Motion for Summary Judgment on the Counterclaims of Knitting Fever, Inc. and Defendant Knitting Fever, Inc.’s (“KFI”) Motion for Summary Judg ...
Knitting Fever, Inc. v. Eisaku Noro & Co., Ltd., 2012 WL 3235108 (E.D. Pa. Aug. 8, 2102): *1 Currently pending before the Court are Plaintiff The Knit With’s (“TKW”) Motion for Summary Judgment on the Counterclaims of Knitting Fever, Inc.…
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Blog Posts Admissible as Admissions of a Party Opponent — Founder’s Testimony about Nature of the Business Presumably Admissible as Expert Opinion under Rule 702, Not Lay Opinion under 701

Lavoholo v. Apple, Inc., 232 F.Supp.3d 513 (S.D.N.Y. Fb. 10, 2106): Lavoho, LLC, the successor in interest to Diesel eBooks, LLC (hereinafter, “Diesel”) brings this action against five book publishers, Hachette Book Group, Inc. (“Hachette”), HarperCollins Publishers, LLC (“HarperCollins”), Macmillan Publishers Inc. ...
Lavoholo v. Apple, Inc., 232 F.Supp.3d 513 (S.D.N.Y. Fb. 10, 2106): Lavoho, LLC, the successor in interest to Diesel eBooks, LLC (hereinafter, “Diesel”) brings this action against five book publishers, Hachette Book Group, Inc. (“Hachette”), HarperCollins Publishers, LLC (“HarperCollins”), Macmillan …
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Recent Posts

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

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

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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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