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

Dismissal for Failure to Prosecute: 5-Factor Test — Not Enough for Pro Se, after 5 Years of Litigation, to Announce He’s Not Ready to Go to Trial — Abuse of Discretion: Step 1 — Did Trial Court ID Correct Legal Rule?

Calloway v. Hayward, 2016 U.S. App. LEXIS 10207 (9th Cir. June 6, 2016) (split panel): Plaintiff Jamisi Jermaine Calloway appeals the district court's sua sponte dismissal of his case based on his representations at a trial confirmation hearing that he was unable to proceed to trial. Calloway also argues that the district ...
Calloway v. Hayward, 2016 U.S. App. LEXIS 10207 (9th Cir. June 6, 2016) (split panel): Plaintiff Jamisi Jermaine Calloway appeals the district court's sua sponte dismissal of his case based on his representations at a trial confirmation hearing that he…
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Particularly Wide Discretion Given to Rule 37(c)(1) Sanctions (Here, for Failure to Timely File Expert Reports) — Nominal Attorney’s Fees for Responding to Motion to Modify Scheduling Order for More Time to File Expert Reports, after Deadline Lapsed

LeFay v. LeFay, 2016 U.S. App. LEXIS 23109 (9th Cir. December 22, 2016): *   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.   Sharron LeFay ("Sharron") appeals the district court's summary judgment ruling that Officer Darryll Van De ...
LeFay v. LeFay, 2016 U.S. App. LEXIS 23109 (9th Cir. December 22, 2016): *   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.   Sharron LeFay ("Sharron") appeals the district court's…
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Rule 11 Sanctions for Submitting Doctors’ Reports (in Moving for Continuance ) Stating Lawyer “Unable to Perform Simplest Activities of Daily Activity” Where Contradicted by Videos — No Need for Evidentiary Hearing on Rule 11

Ultegra LLC v. Mystic Fire Dist., 2017 U.S. App. LEXIS 1009 (2d Cir. Jan. 20, 2017): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Appellants Gretchen Chipperini and Ultegra LLC sued numerous defendants after an ...
Ultegra LLC v. Mystic Fire Dist., 2017 U.S. App. LEXIS 1009 (2d Cir. Jan. 20, 2017): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Appellants Gretchen Chipperini and …
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Arbitrability — Challenge to Validity of Arbitration Clause Is for Court to Decide — Challenge to the Contract As a Whole Is for Arbitrator to Decide

S. Jersey Sanitation Co. v. Applied Underwriters Captive Risk Assur. Co., 2016 U.S. App. LEXIS 19245 (3d Cir. Oct. 25, 2016): I. INTRODUCTION Applied Underwriters Captive Risk Assurance Company, Inc. ("Applied Underwriters"), a Berkshire Hathaway Company, appeals from the District Court's deni ...
S. Jersey Sanitation Co. v. Applied Underwriters Captive Risk Assur. Co., 2016 U.S. App. LEXIS 19245 (3d Cir. Oct. 25, 2016): I. INTRODUCTION Applied Underwriters Captive Risk Assurance Company, Inc. ("Applied Underwriters"), a Berkshire Hathaway Company, appeals from the District…
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Wayback Machine on 12(b)(6) Motion to Dismiss: Complaint’s Cite to Wayback Link to Historical Version of Website Affords Defendants Ability to Respond, Defeats 9(b) — Arbitration: Dispute Unrelated to Contract Outside of Broad Arbitration Clause

Dickson v. Gospel for Asia, Inc., 2017 U.S. Dist. LEXIS 6473 (W.D. Ark. Jan. 18, 2017): Before the Court is Defendants' motion (Doc. 23) to compel arbitration and brief in support (Doc. 24). Plaintiffs filed a response (Doc. 31), and Defendants filed a reply (Doc. 36) with leave of Court. Defendants argue that contractual arbitrat ...
Dickson v. Gospel for Asia, Inc., 2017 U.S. Dist. LEXIS 6473 (W.D. Ark. Jan. 18, 2017): Before the Court is Defendants' motion (Doc. 23) to compel arbitration and brief in support (Doc. 24). Plaintiffs filed a response (Doc. 31), and…
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Spoliation of Tangible Evidence — Bad Faith Still Required for Adverse Inference Instruction in Tenth Circuit

Rife v Okla. Dep’t of Public Safety, 2017 U.S. App. LEXIS 1117 (10th Cir. Jan. 23, 2017) (NOTE:  This opinion was amended and is re-excerpted in our posting of June 19, 2017): This case began with the plaintiff, Mr. Clyde Rife, sitting on a motorcycle next to a road, unable to recall the date, the time, or even what he had been doi ...
Rife v Okla. Dep’t of Public Safety, 2017 U.S. App. LEXIS 1117 (10th Cir. Jan. 23, 2017) (NOTE:  This opinion was amended and is re-excerpted in our posting of June 19, 2017): This case began with the plaintiff, Mr. Clyde…
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Facebook Posts of Murder Victim, Offered by Defendant on Issue of Who Was the Aggressor under 803(3), Rejected for Lack of Foundation Tying Content of Posts to Defendant

State v Hall, 2016 Ida. LEXIS 356 (Ida. Nov. 15, 2016): This is an appeal out of Ada County from a judgment of conviction for the crime of murder in the second degree. The primary issue on appeal is whether the district court properly instructed the jury on the issue of self-defense. We hold that the district court did and affirm the ...
State v Hall, 2016 Ida. LEXIS 356 (Ida. Nov. 15, 2016): This is an appeal out of Ada County from a judgment of conviction for the crime of murder in the second degree. The primary issue on appeal is whether…
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District Courts Have a Duty of Inquiry to Determine Whether There Is Verifiable Evidence of the Incompetence of a Pro Se Litigant

Fields v. Venable, 2016 U.S. App. LEXIS 23285 (3d Cir. Dec. 27, 2016): On October 6, 2006, Fields was sentenced by the Honorable Sheila Venable in the Superior Court of New Jersey to a term of confinement of nine years. On January 9, 2011, he was released to a mandatory five-year period of supervision. During that time, Fields repeate ...
Fields v. Venable, 2016 U.S. App. LEXIS 23285 (3d Cir. Dec. 27, 2016): On October 6, 2006, Fields was sentenced by the Honorable Sheila Venable in the Superior Court of New Jersey to a term of confinement of nine years.…
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Digital Evidence — Preservation and Authentication — Mirror Imaging Hard Drives, Risks, Data Degradation — The Deceptive Notion of Data “Files” — The Near Future: Impossible to Recover Deleted Data (2d Cir. En Banc)

United States v. Ganias, 2016 U.S. App. LEXIS 9706 (2d Cir. May 27, 2016) (en banc): OPINION BY: DEBRA ANN LIVINGSTON; GERARD E. LYNCH OPINION Debra Ann Livingston and Gerard E. Lynch, Circuit Judges: Defendant-Appellant Stavros Ganias appeals from a judgment of the United
United States v. Ganias, 2016 U.S. App. LEXIS 9706 (2d Cir. May 27, 2016) (en banc): OPINION BY: DEBRA ANN LIVINGSTON; GERARD E. LYNCH OPINION Debra Ann Livingston and Gerard E. Lynch, Circuit Judges: Defendant-Appellant Stavros Ganias appeals from a…
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Attorney-Client Privilege Inapplicable to Records Generated or Received by Bank from Lawyer/Customer — Privilege Applies Only If Disclosure Would Reveal Attorney-Communications Or = Last Link Likely to Lead to Client Indictment

Zelen v. United States, 2016 U.S. App. LEXIS 17096 (9th Cir. Sept. 13, 2016): Garrett J. Zelen, an attorney, appeals pro se from the district court's order dismissing Zelen's petition to quash an IRS summons for Zelen's bank records. We have jurisdiction under 28 U.S.C. § 1291. We review for clear error t ...
Zelen v. United States, 2016 U.S. App. LEXIS 17096 (9th Cir. Sept. 13, 2016): Garrett J. Zelen, an attorney, appeals pro se from the district court's order dismissing Zelen's petition to quash an IRS summons for Zelen's bank records.…
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Recent Posts

RICO and Injunctions: (1) State Court Actions Designed to Perpetuate and Monetize a RICO Violation Are Enjoinable under RICO, Even Though They Are Not Themselves Alleged to Be Predicate Acts [Note: Noerr Pennington Applies in RICO Actions] — (2) Although Civil RICO’s Text and Legislative History Fail to Reveal Any Intent to Override the Provisions of the Federal Arbitration Act, Arbitrations Are Enjoinable Under the “Effective Vindication” Doctrine Where They Operate As a Prospective Waiver of a Party’s Right to Pursue Statutory RICO Remedies — (3) Arbitration Findings May Be Given Collateral Estoppel Effect in a Civil RICO Action — (4) Injunction of Non-Corrupt State Court Litigations That Furthers a RICO Violation Are Enjoinable Under the Anti-Injunction Act’s “Expressly Authorized” Exception — (5) “The Irreparable Harm Requirement Is The Single Most Important Prerequisite For The Issuance Of A Preliminary Injunction” (Good Quote) — (6) When Injunction Is Based on “Serious Questions on the Merits” Rather Than “Likelihood of Success,” Court May Rely on Unverified Pleadings and Attached Exhibits to Assess the Merits, Unless the Opponent Has Raised Substantial Questions (Here, the Opponent Failed to Request an Evidentiary Hearing) — (7) Whether Amended Pleading Moots An Appeal Turns on Whether It Materially Changes the Substantive Basis for the Appeal — (8) Meaning of “In That” (“Used To Introduce A Statement That Explains Or Gives More Specific Information” About A Prior Statement)

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

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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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