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

Sanctions — If a Party Has Good Reason to Believe a Fact Is True or False But Needs Discovery, Formal or Informal, from Others to Confirm It, the Party Is Not Subject to Rule 11 Sanctions — Prompt Filing Is Encouraged

Max Oil Co., Inc. v. Range Production Co., LLC, 681 Fed.Appx. 710 (10th Cir. Mar. 14, 2017): Max Oil Company and Max, Rebecca, and Joe Hawkins (Hawkins Family) sued Range Production Company LLC and Range Resources-Midcontinent LLC (collectively Range), alleging Range’s oil and gas drilling operations permanently damaged thei ...
Max Oil Co., Inc. v. Range Production Co., LLC, 681 Fed.Appx. 710 (10th Cir. Mar. 14, 2017): Max Oil Company and Max, Rebecca, and Joe Hawkins (Hawkins Family) sued Range Production Company LLC and Range Resources-Midcontinent LLC (collectively Range), alleging …
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§ 1927 Sanctions — Notice of Appeal Filed in Name of Sanctioned Party Does Not Confer Jurisdiction over Appeal by Counsel — Liberal Construction under FRAP 3 Doesn’t Excuse Complete Non-Compliance — Test Is Objective

Payne v. Univ. of S. Miss., 681 Fed.Appx. 384 (5th Cir. 2017) (limited precedent opinion): Thomas Payne filed a civil rights lawsuit against the University of Southern Mississippi (the “University”) and several University officials in their official and individual capacities, claiming that he suffered adverse employment ac ...
Payne v. Univ. of S. Miss., 681 Fed.Appx. 384 (5th Cir. 2017) (limited precedent opinion): Thomas Payne filed a civil rights lawsuit against the University of Southern Mississippi (the “University”) and several University officials in their official and individual capacities, …
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Rule 11 Sanctions — If a Party Forms a Belief Based on a Reasonable Inquiry Limited by a Prospective Adversary’s Withholding of Information, Asserts That Its Position “Will Likely Have Evidentiary Support,” Party Has Satisfied Rule 11

Amgen Inc.v. Hospira, Inc., 2017 U.S. App. LEXIS 14747 (Fed. Cir. Aug. 10, 2017): Amgen Inc. ("Amgen") appeals an order of the United States District Court for the District of Delaware denying Amgen's motion to compel discovery from Hospira, Inc. ("Hospira") in a patent infringement case governed by the Biologi ...
Amgen Inc.v. Hospira, Inc., 2017 U.S. App. LEXIS 14747 (Fed. Cir. Aug. 10, 2017): Amgen Inc. ("Amgen") appeals an order of the United States District Court for the District of Delaware denying Amgen's motion to compel discovery from Hospira, Inc.…
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RICO: Failure to Allege Violations of Predicate Acts Listed in § 1961(1) Dooms Claim — Judicial Recusal: Fact Judge’s Son Is Non-Partner Lawyer at Firm Before Her Doesn’t Require Recusal

Brown v. Burch, Porter & Johnson, PLLC, 2016 WL 9448027 (6th Cir. Nov. 21, 2016):   *1 Pro se litigant Kim Brown appeals a district court judgment dismissing his civil action filed pursuant to the Racketeer Influenced and Corrupt Organizations Act (“RICO”) ...
Brown v. Burch, Porter & Johnson, PLLC, 2016 WL 9448027 (6th Cir. Nov. 21, 2016):   *1 Pro se litigant Kim Brown appeals a district court judgment dismissing his civil action filed pursuant to the Racketeer Influenced and Corrupt Organizations Act…
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Spoliation — Suppression of Evidence Enough — Bad Faith Still Required for Spoliation of Tangible Evidence in Third Circuit

Davis v. Quaker Valley Sch. Dist., 2017 U.S. App. LEXIS 9916 (3d Cir. June 5, 2017): **   This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Shinic Davis, individually and on behalf her son ("E.D."), brought a race-based discrimination and retaliati ...
Davis v. Quaker Valley Sch. Dist., 2017 U.S. App. LEXIS 9916 (3d Cir. June 5, 2017): **   This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Shinic Davis, individually…
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Social Media Authentication — Facebook Message Excluded for Failure to Present Evidence of Distinctive Characteristics Linking Contents Linking to Alleged Sender — Methods of Twitter & Facebook Authentication

Richardson v State, 2017 Ind. App. LEXIS 286 (Ind. Ct. App. July 6, 2017): P1 Appellant-Defendant, Terrance L. Richardson (Richardson), appeals his conviction for murder, a felony, Ind. Code § 35-42-1-1. P2 We affirm. ISSUES P3 Richardson raises two issues for our review ...
Richardson v State, 2017 Ind. App. LEXIS 286 (Ind. Ct. App. July 6, 2017): P1 Appellant-Defendant, Terrance L. Richardson (Richardson), appeals his conviction for murder, a felony, Ind. Code § 35-42-1-1. P2 We affirm. ISSUES P3 Richardson raises two issues…
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Judicial Notice of Internet Evidence: Attorney Affidavit of Search of Government Website Sufficient to Authenticate Printout on Summary Judgment — Testimony Chat Log Fully and Fairly Reproduces Chats Also Sufficient

Brown v. JNH Invs., 2017 U.S. Dist. LEXIS 117889 (E.D. Tex. July 7, 2017):  [*1] REPORT AND RECOMMENDATIONOF UNITED STATES MAGISTRATE JUDGE Pending before the Court is Defendants JNH Investments, Inc., J and H Investments Group, LLC, John Alsenih, and Haitham Faraj's Motion ...
Brown v. JNH Invs., 2017 U.S. Dist. LEXIS 117889 (E.D. Tex. July 7, 2017):  [*1] REPORT AND RECOMMENDATIONOF UNITED STATES MAGISTRATE JUDGE Pending before the Court is Defendants JNH Investments, Inc., J and H Investments Group, LLC, John Alsenih, and…
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Emails May Be Authenticated Circumstantially—Party’s Emails Are Admissions, 3rd Parties’ OK for Context — Wayback Machine Authenticable by Custodian Testimony, and Other Website Printouts by Testimony from Person Who Downloaded It

United States v. Gasperini, 2017 U.S. Dist. LEXIS 114166 (E.D.N.Y. July 21, 2017): Defendant Fabio Gasperini is charged with two counts of computer intrusion, one count of conspiracy to commit wire fraud, one count of wire fraud, and one count of conspiracy to commit money laundering. (See Indictment ("Ind." ...
United States v. Gasperini, 2017 U.S. Dist. LEXIS 114166 (E.D.N.Y. July 21, 2017): Defendant Fabio Gasperini is charged with two counts of computer intrusion, one count of conspiracy to commit wire fraud, one count of wire fraud, and one count …
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RICO-Based Federal Jurisdiction Requires Colorable Claim — Mere Recitation to RICO Act, Untethered to Vague and Conclusory Factual Allegations, Is Insufficient

Payn v. Kelley, 2017 U.S. App. LEXIS 13591 (10th Cir. July 27, 2017): *   After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordere ...
Payn v. Kelley, 2017 U.S. App. LEXIS 13591 (10th Cir. July 27, 2017): *   After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See…
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Inherent Power Sanctions: Evidence Preclusion, Attorneys’ Fees for Extrajudicial Conduct Aimed at Jury Pool & Potential Witnesses (Website, Ringless Voicemails) & Ethical Violations of Lawyer-Party (Lack of Candor to the Court & Obstruction)

Diamond Consortium, Inc. v Manookian, 2017 U.S. Dist. LEXIS 122625 (E.D. Tex. Aug. 3, 2017): Pending before the Court is Plaintiffs' Emergency Motion for Order to Show Cause (Potential Contempt of Court and Sanctions) (the "Emergency Motion") (Dkt. 269), the motion having been referred to the undersigned ...
Diamond Consortium, Inc. v Manookian, 2017 U.S. Dist. LEXIS 122625 (E.D. Tex. Aug. 3, 2017): Pending before the Court is Plaintiffs' Emergency Motion for Order to Show Cause (Potential Contempt of Court and Sanctions) (the "Emergency Motion") (Dkt. 269), the…
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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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