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

Inherent Power Sanctions: Counsel’s Belated Assertion of Fifth Amendment, Even If in Good Faith, as Reason for Not Complying with Court Order Doesn’t Undercut Bad Faith Finding—Fifth Must Be Timely Asserted [Then Adverse Inference Drawn]

Armstead v. Allstate Prop. & Cas. Ins. Co., 2017 WL 2992071 (11th Cir. July 14, 2017): *1 Attorney Sandra Finch represented Elaine Armstead in Armstead’s lawsuit against Allstate Property & Casualty Insurance Company. In the weeks leading up to trial, Finch, on Armstead’s behalf, filed a motion in limine to exclud ...
Armstead v. Allstate Prop. & Cas. Ins. Co., 2017 WL 2992071 (11th Cir. July 14, 2017): *1 Attorney Sandra Finch represented Elaine Armstead in Armstead’s lawsuit against Allstate Property & Casualty Insurance Company. In the weeks leading up to trial,…
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YouTube: Video Authenticated by Witness Who Recognized Person (Who Admitted Being in Recent Video) — Wit. Needn’t Know Circs of Recording — Viewer May Assume Items in Non-Prof’l Video Are Real, Not Props—Under 403, Only Still Photos Admitted

United States v. Washington, 2017 U.S. Dist. LEXIS 136220 (N.D. Ill. Aug. 21, 2017): The United States of America (the "Government") has charged Defendant Darrius Washington with one count of unlawful possession of a firearm by a felon. [See 1.] Before the Court are the Government's consolidated motions in limine
United States v. Washington, 2017 U.S. Dist. LEXIS 136220 (N.D. Ill. Aug. 21, 2017): The United States of America (the "Government") has charged Defendant Darrius Washington with one count of unlawful possession of a firearm by a felon. [See 1.]…
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Joint Defense/Common Interest Privilege: Direct Communications among Clients Unprivileged unless Purpose Is to Solicit or Communicate Legal Advice — One Client’s Reporting His or Her Research to Another Not Protected

United States v. Krug, 2017 U.S. App. LEXIS 15643 (2d Cir. Aug. 18, 2017): Appeal from the December 10, 2016 order of the United States District Court for the Western District of New York (Skretny, J.) precluding the government from introducing at trial certain testimony by a co-defendant turned government witness on the basi ...
United States v. Krug, 2017 U.S. App. LEXIS 15643 (2d Cir. Aug. 18, 2017): Appeal from the December 10, 2016 order of the United States District Court for the Western District of New York (Skretny, J.) precluding the government from…
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Rule 68 vs. Sanctions: While Unaccepted Offer of Full Judgment under Either R. 67 or 68 Does Not Moot a Claim, Refusal to Accept the Offer May Be Sanctionable under § 1927, the Inherent Power or Even Rule 11

Conrad v. Boiron, Inc., 2017 U.S. App. LEXIS 16180 (7th Cir. Aug. 24, 2017): Chad Conrad filed a class action against Boiron for deceptive marketing, but he was left with only his individual claim after the district court refused to certify his proposed class. About a year later Boiron offered Conrad $5,025, more than he coul ...
Conrad v. Boiron, Inc., 2017 U.S. App. LEXIS 16180 (7th Cir. Aug. 24, 2017): Chad Conrad filed a class action against Boiron for deceptive marketing, but he was left with only his individual claim after the district court refused to …
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Disqualification in Federal Court Is Decided under Ethics Rules of State in Which Court Sits (Rule 1.9), Not under a Federal Standard — What Is “Substantially Related” — Implications of Passage of Time — Court May Rely on Commentary to Rules

Watkins v. Trans Union, LLC, 2017 U.S. App. LEXIS 16016 (7th Cir. Aug. 22, 2017): Plaintiff Richard Watkins has sued Trans Union for violating the Fair Credit Reporting Act. The merits of his claims are not the subject of this appeal. The issue here is whether attorney John Cento should be disqualified from representing Watkin ...
Watkins v. Trans Union, LLC, 2017 U.S. App. LEXIS 16016 (7th Cir. Aug. 22, 2017): Plaintiff Richard Watkins has sued Trans Union for violating the Fair Credit Reporting Act. The merits of his claims are not the subject of this …
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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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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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