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

No Rule 11/Inherent Power Sanctions Where Law Unsettled, Lower Courts Agreed — No Attorney’s Fees for Pro Se — Mere Misstatement ≠ Bad Faith — Court Always Has Jurisdiction over Bond — Failing to Object ≠ Invited Error

City of Riviera Beach v. That Certain Unnamed Gray, Two-Story Vessel Approximately Fifty-Seven Feet in Length, 2016 U.S. App. LEXIS 21310 (11th Cir. Nov. 29, 2016): Fane Lozman, proceeding pro se, appeals the district court's judgment and several orders in a case brought in admiralty against his floating home by the City of Rivier ...
City of Riviera Beach v. That Certain Unnamed Gray, Two-Story Vessel Approximately Fifty-Seven Feet in Length, 2016 U.S. App. LEXIS 21310 (11th Cir. Nov. 29, 2016): Fane Lozman, proceeding pro se, appeals the district court's judgment and several orders in…
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Emails between Prospective Partners Not Business Records Where No One Was Responsible for Keeping Them, It Was Unclear Which Were Required or Who Was Custodian — Use of “Indentured Servitude” on Summation OK

Queen v. Schultz, 2016 U.S. App. LEXIS 23479 (D.C. Cir. Dec. 9, 2016): This appeal was considered on the record from the United States District Court for the District of Columbia, and briefed and argued by counsel. The Court has accorded the issues full consideration and has determined that they do not warrant a published opinion.
Queen v. Schultz, 2016 U.S. App. LEXIS 23479 (D.C. Cir. Dec. 9, 2016): This appeal was considered on the record from the United States District Court for the District of Columbia, and briefed and argued by counsel. The Court has…
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Texts Sent=Admissions, Received=Context — Facebook Posts Authenticated by Nickname, DOB, Residence, Email Addresses, Photos (Which Also Appear on Owner’s Phone), FB Application and Contents — Corroborative vs. Cumulative Evidence

United States v. Lewisbey, 843 F.3d 653 (7th Cir. Dec. 9, 2016): David Lewisbey was a Chicago-based gunrunner who used a fake Indiana I.D. to buy guns at Indiana gun shows and bring them back to Illinois to sell. He came to the attention of law enforcement when he bragged about his gunrunning exploits on Facebook. Fed ...
United States v. Lewisbey, 843 F.3d 653 (7th Cir. Dec. 9, 2016): David Lewisbey was a Chicago-based gunrunner who used a fake Indiana I.D. to buy guns at Indiana gun shows and bring them back to Illinois to sell. He …
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Docs [Emails] Created by Adversary & Produced=Admissions, Even If Not Business Records — Sham Affidavit Rule: Inconsistency Going to Credibility Not Necly Sham — Summary Judgment: Conclusory Affidavits Ignored; More Leeway Given to SJ Opponent

Daniels v. Tex. Dept. of Transp., 2016 U.S. Dist. LEXIS 171017 (E.D. Tex. Dec. 10, 2016): MEMORANDUM OPINION AND ORDER Pending before the Court are Defendants Texas Department of Transportation's ("TxDOT") and Executive Director James M. Bass's, in his official capacity, ("Bass&quo ...
Daniels v. Tex. Dept. of Transp., 2016 U.S. Dist. LEXIS 171017 (E.D. Tex. Dec. 10, 2016): MEMORANDUM OPINION AND ORDER Pending before the Court are Defendants Texas Department of Transportation's ("TxDOT") and Executive Director James M. Bass's, in his official…
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Sanctions: District Court May Not Award Appellate Fees Absent Statutory Authorization, Except for Interlocutory Appeal If Prevailing Party Later Wins Below — Even If District Court Proceedings Frivolous, Appeal May Not Be — $17 Million FCA Award

In re Natural Gas Royalties Qui Tam Litig., 2017 U.S. App. LEXIS 142 (10th Cir. Jan. 4, 2017): This is the second appeal in a qui tam case lasting over 20 years and initially involving more than 300 natural gas industry defendants. The number of defendants has shrunk significantly, and the issues on this appeal present narrow ...
In re Natural Gas Royalties Qui Tam Litig., 2017 U.S. App. LEXIS 142 (10th Cir. Jan. 4, 2017): This is the second appeal in a qui tam case lasting over 20 years and initially involving more than 300 natural gas…
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Text Message Authentication: Mere Proximity to Phone, Absent Proof of Ownership or Linkage to Content of Texts or Other Circumstantial Evidence Linking Alleged Owner to Messages, Insufficient to Authenticate

Garnett v. Commonwealth, 2016 Va. App. LEXIS 361 (Va. Ct. App. Dec. 20, 2016): *   Pursuant to Code § 17.1-413, this opinion is not designated for publication. Terrell Dewayne Garnett appeals an order convicting him of possession with intent to distribute one-half ounce to five pounds of marijuana. ...
Garnett v. Commonwealth, 2016 Va. App. LEXIS 361 (Va. Ct. App. Dec. 20, 2016): *   Pursuant to Code § 17.1-413, this opinion is not designated for publication. Terrell Dewayne Garnett appeals an order convicting him of possession with intent to…
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Spoliation Doesn’t Prevent Summary Judgment in Spoliator’s Favor If Only Adverse Inference Would Not Save Adversary’s Claims — Appeals: Failure to Order Transcript of Recorded Hearing As Required by FRAP 10(b)(1) Forfeits Claim of Error

Rodriguez v. Forthright, 2016 U.S. App. LEXIS 22463 (3d Cir. Dec. 19, 2016): *   This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM Felix A. Rodriguez appeals from the District Court's order entering summary judgment against him and in f ...
Rodriguez v. Forthright, 2016 U.S. App. LEXIS 22463 (3d Cir. Dec. 19, 2016): *   This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM Felix A. Rodriguez appeals…
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Court May Take Judicial Notice of Document Filed in Another Case Not for the Truth of the Matters Asserted But Only to Establish Fact of Filing and What Is Asserted — Judicial Estoppel: Factors

United States v. First Am. Title Ins. Co., 2016 U.S. Dist. LEXIS 175617 (N.D. Ill. Dec. 20, 2016): II. Judicial Estoppel Patel also argues that the doctrine of judicial estoppel bars the SBA from bringing this action. Judicial estoppel "generally prevents a party from prevailing in one phase of a c ...
United States v. First Am. Title Ins. Co., 2016 U.S. Dist. LEXIS 175617 (N.D. Ill. Dec. 20, 2016): II. Judicial Estoppel Patel also argues that the doctrine of judicial estoppel bars the SBA from bringing this action. Judicial estoppel "generally …
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Arbitration — If Complaint/Supporting Docs Unclear on Agreement to Arbitrate, Motion to Compel Should Follow Discovery, Be Decided under SJ Standard — While Continuing to Work after ADR Policy May=Consent to Arbitrate, Not So If Employee Dissents

Scott v Education Mgmt. Corp., 2016 U.S. App. LEXIS 18662 (3d Cir. Oct. 18, 2016): In these consolidated appeals, two former employees of the Education Management Corporation ("EDMC") appeal from orders dismissing their separate claims of discrimination. The employees -- Michael Scott [*2]  and Lamont Jones ...
Scott v Education Mgmt. Corp., 2016 U.S. App. LEXIS 18662 (3d Cir. Oct. 18, 2016): In these consolidated appeals, two former employees of the Education Management Corporation ("EDMC") appeal from orders dismissing their separate claims of discrimination. The employees —…
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RICO/9(b): Where Many Sued, Complaint Need Not Necessarily ID False Statements by Each But Conclusory Conspiracy Claim Not Enough — Each’s Role Must Be ID’ed; Collective Action OK If All Did Same Thing — Basis for Belief (Info+B) Must Be Stated

Puri v. Khalsa, 2017 U.S. App. LEXIS 287 (9th Cir. Jan. 6, 2017): *   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. The plaintiffs, individually and on behalf of Unto Infinity, LLC (UI), and Siri Singh Sahib Corporation (SSSC), brought claims al ...
Puri v. Khalsa, 2017 U.S. App. LEXIS 287 (9th Cir. Jan. 6, 2017): *   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. The plaintiffs, individually and on behalf of …
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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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