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—Appellate Review: “Deference Should Not Be Confused with Total Capitulation”—Rule 11 Does “Not Require Perfect Research or Utter Prescience” (Good Quotes) — Client Can’t Be Sanctioned for Flawed Legal Arguments

Eldridge v. Gordon Bros. Grp., LLC, 2017 U.S. App. LEXIS 12577 (1st Cir. July 13, 2017): PREFACE Today's case involves a moderately complex business dispute, rich with issues. On one side is plaintiff K's Merchandise Mart, Inc., which we call "Old K's" (for reasons that will soon become cl ...
Eldridge v. Gordon Bros. Grp., LLC, 2017 U.S. App. LEXIS 12577 (1st Cir. July 13, 2017): PREFACE Today's case involves a moderately complex business dispute, rich with issues. On one side is plaintiff K's Merchandise Mart, Inc., which we call…
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Social Media Authentication: Twitter Estimates That at Least 27 Million Twitter Accounts Are Fake, And That May Be Low

Tim Wu, Please Prove You're Not a Robot, New York Times, July 16, 2017, Sunday Review Section at 8: "Twitter estimates at least 27 million probably fake accounts; researchers suggest the realnumber is closer to 48 million." And an important point about Internet reviews: "Give ...
Tim Wu, Please Prove You're Not a Robot, New York Times, July 16, 2017, Sunday Review Section at 8: "Twitter estimates at least 27 million probably fake accounts; researchers suggest the realnumber is closer to 48 million." And an important…
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Spoliation — Intentional Destruction of Evidence Indicating a Desire to Suppress the Truth Still Required for Spoliation of Tangible Evidence in 8th Circuit Post-37(e)

Davis v. White, 2017 U.S. App. LEXIS 10273 (8th Cir. June 9, 2017): Henry M. Davis sued the City of Ferguson and three police officers, alleging they beat him while he was handcuffed. See Davis v. White, 794 F.3d 1008 (8th Cir. 2015). His claims [*2]  were tried to a jury after the district court2 denied his B ...
Davis v. White, 2017 U.S. App. LEXIS 10273 (8th Cir. June 9, 2017): Henry M. Davis sued the City of Ferguson and three police officers, alleging they beat him while he was handcuffed. See Davis v. White, 794 F.3d 1008…
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Supreme Court: Intervenor of Right under Rule 24(a)(2) Must Have Article III Standing to Pursue Relief Different from That Sought by a Party with Standing

Town of Chester v. Laroe Estates, Inc., 198 L. Ed. 2d 64 (U.S. June 5, 2017): Must a litigant possess Article III standing in order to intervene of right under Federal Rule of Civil Pro ...
Town of Chester v. Laroe Estates, Inc., 198 L. Ed. 2d 64 (U.S. June 5, 2017): Must a litigant possess Article III standing in order to intervene of right under Federal Rule of Civil Procedure 24(a)(2)? The parties do …
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Despite Cunningham, Sanction of Striking FSIA Defense (to Litigating at All) Is Immediately Appealable — It Is Also Beyond the Court’s Power — But Lesser Sanctions That Produce the Same Result Are OK

Funk v. Belneftekhim, 2017 U.S. App. LEXIS 11587 (2d Cir. June 29, 2017): In this action, originally filed in New York State court, plaintiffs Emanuel Zeltser and Vladlena Funk sue defendants Concern Belneftekhim [*2]  ("BNTK") and Belneftekhim USA, Inc. ("BUSA") for their alleged roles in plaintiffs' ...
Funk v. Belneftekhim, 2017 U.S. App. LEXIS 11587 (2d Cir. June 29, 2017): In this action, originally filed in New York State court, plaintiffs Emanuel Zeltser and Vladlena Funk sue defendants Concern Belneftekhim [*2]  ("BNTK") and Belneftekhim USA, Inc. ("BUSA") …
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Rule 11 Sanctions Motion Not Mooted by Dismissal of All Claims — Review of Refusal to Consider Motion Is De Novo — State and Federal Sanctions Motions Focus on Different Filings

Brice v. Bauer, 2017 U.S. App. LEXIS 8800 (3d Cir. May 19, 2017): Before this Court is Kim Bauer's appeal of the Order of the District Court, which denied her motion for sanctions under Federal Rule of Civil Procedure 11 as moot after dismissing or entering judgment in Bauer's favor on all claims brought against her
Brice v. Bauer, 2017 U.S. App. LEXIS 8800 (3d Cir. May 19, 2017): Before this Court is Kim Bauer's appeal of the Order of the District Court, which denied her motion for sanctions under Federal Rule of Civil Procedure 11 …
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Facebook / Instagram Authentication — Just Because a Photo Appears on Social Media Doesn’t Mean You Have to Authenticate the Page or ID the Owner to Authenticate the Photo, If the Photo Itself Is the Relevant Evidence

United States v. Thomas, 2017 U.S. App. LEXIS 11781 (6th Cir. June 30, 2017): A jury convicted Jabron Thomas of armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d); brandishing a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c); and being a felon in possession of a firearm, in violation of 1 ...
United States v. Thomas, 2017 U.S. App. LEXIS 11781 (6th Cir. June 30, 2017): A jury convicted Jabron Thomas of armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d); brandishing a firearm during a crime of violence, …
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Text, Twitter Authentication by Evidence Texts, Tweet Sent from Phone of Defendant, Who Knew Its Passcode; App Was Created with Email Address Using His Name; Phone Had Photo of Object in His Room — Not Hearsay But Admissions

Atkins v. Commonwealth, 2017 Va. App. LEXIS 160 (Va. Ct. App. July 5, 2017): Hassan Christopher Atkins appeals his convictions for three counts of breaking and entering and three counts of grand larceny, in violation of
Atkins v. Commonwealth, 2017 Va. App. LEXIS 160 (Va. Ct. App. July 5, 2017): Hassan Christopher Atkins appeals his convictions for three counts of breaking and entering and three counts of grand larceny, in violation of Code §§ 18.2-89 and…
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Sanctions for Violating Local Rule (Conduct Unbecoming Member of the Bar), Unlike Inherent Power Sanctions, Don’t Require Bad Faith Finding — Appeals Court May Consider Supplemental D.Ct. Memo Explaining Order on Appeal

In re Hermesmeyer, 2017 U.S. App. LEXIS 7758 (5th Cir. May 2, 2017): *   Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. Williams Hermesmeyer, an Assistant Public Defender, appeals the ...
In re Hermesmeyer, 2017 U.S. App. LEXIS 7758 (5th Cir. May 2, 2017): *   Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances…
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§ 1927 Sanctions on Appeal Potentially Apt for Misuse of Motion to Strike Seeking Excision of Arguments — Arguments Should Be Addressed in Merits Brief, and Motion to Strike Is Not Vehicle for Extra Pages

Reeser v. Henry Ford Hosp., 2017 U.S. App. LEXIS 10433 (6th Cir. June 8, 2017): Plaintiff Natalie Reeser appeals the district court's order granting in part and denying in part her motion for attorneys' fees. Reeser sought $315,133.32 in fees pursuant to Michigan's Whistleblowers' Protection Act (WPA), Mich. Comp. ...
Reeser v. Henry Ford Hosp., 2017 U.S. App. LEXIS 10433 (6th Cir. June 8, 2017): Plaintiff Natalie Reeser appeals the district court's order granting in part and denying in part her motion for attorneys' fees. Reeser sought $315,133.32 in fees…
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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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