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

Rule 16(f)/37 Sanctions — Default for Lack of Preparation for Pretrial Conference & Failure to Pay Prior 16(f) Sanction — Discretion Narrows as Severity Increases — No Testimony Needed for Default — Absent Prejudice, Due Process Violation Harmless

RDLG, LLC v. Leonard, 2016 U.S. App. LEXIS 9390 (4th Cir. May 23, 2016): RDLG, LLC ("RDLG") sued Fred M. Leonard, Jr. ("Leonard"), raising state law fraud claims. The district court1 entered default judgment in RDLG's favor as a sanction for Leonard's mis ...
RDLG, LLC v. Leonard, 2016 U.S. App. LEXIS 9390 (4th Cir. May 23, 2016): RDLG, LLC ("RDLG") sued Fred M. Leonard, Jr. ("Leonard"), raising state law fraud claims. The district court1 entered default judgment in RDLG's favor as a …
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Texts Authenticated by Fact They Were Sent to / from Person with Unusual Name Very Similar to Defendant’s and by Contents — Do You Have to Be An Expert to Testify as to the Meaning of Abbreviations/Slang Used in Texts?

Jones v. State, 2016 Md. App. LEXIS 806 (Ct. Spec. App. Sept. 16, 2016): After a jury trial held in October 2014 in the Circuit Court for Kent County, Aredelle Jones ("Jones") was convicted of robbery, second-degree assault, theft, first-degree burglary, and nine counts of reckless endangerment. In addition, he was convicted ...
Jones v. State, 2016 Md. App. LEXIS 806 (Ct. Spec. App. Sept. 16, 2016): After a jury trial held in October 2014 in the Circuit Court for Kent County, Aredelle Jones ("Jones") was convicted of robbery, second-degree assault, theft, first-degree…
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§ 1927 Sanctions — While A Complaint Is Not Sanctionable in Some Circuits under 1927 Because It Initiates the Proceedings, An Amended Complaint Is

R. Prasad Indus. v. Douglas, 2016 U.S. App. LEXIS 22388 (9th Cir. Dec. 16, 2016): MEMORANDUM* *   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Frederic M. Douglas appeals the order of the distric ...
R. Prasad Indus. v. Douglas, 2016 U.S. App. LEXIS 22388 (9th Cir. Dec. 16, 2016): MEMORANDUM* *   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Frederic M. Douglas appeals …
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Does Rule 15(b)(2), Which Provides for Constructive Amendment of Complaint by Trying Issues Not Pled, Apply at Summary Judgment Stage? — Circuit Split

In re Vertis Holdings, Inc. (Riverside Acquisition Grp. LLC v. Vertis Holdings, Inc.), 2016 U.S. Dist. LEXIS 164745: 20. Riverside also invokes Fed. R. Civ. P. 15(b)(2),11 which permits constructive amendment of a complaint during and after trial when an issue not raised by ...
In re Vertis Holdings, Inc. (Riverside Acquisition Grp. LLC v. Vertis Holdings, Inc.), 2016 U.S. Dist. LEXIS 164745: 20. Riverside also invokes Fed. R. Civ. P. 15(b)(2),11 which permits constructive amendment of a complaint during and after trial when …
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Arbitration — Does the FAA, Which Explicitly Provides Causes of Action to Compel & Confirm, Confer Subject Matter Jurisdiction over a Cause of Action to Vacate? — Circuit Split — If So, What Is the Statute of Limitations?

Cvoro v. Carnival Corp., 2016 U.S. Dist. LEXIS 164423 (S.D. Fla. Nov. 28, 2016): REPORT AND RECOMMENDATION THIS CAUSE comes before the Court on the Defendant's Motion to Dismiss Plaintiff's Complaint (DE# 8, 6/10/16). This matter was referred to the undersigned by the Honorable Federico A. Moreno ...
Cvoro v. Carnival Corp., 2016 U.S. Dist. LEXIS 164423 (S.D. Fla. Nov. 28, 2016): REPORT AND RECOMMENDATION THIS CAUSE comes before the Court on the Defendant's Motion to Dismiss Plaintiff's Complaint (DE# 8, 6/10/16). This matter was referred to the…
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Spoliation — Negligence Is Generally Insufficient to Justify an Inference of Spoliation in the First Circuit — Some Indication of Bad Faith Is Usually Required

United States v. Montoya, 2016 U.S. App. LEXIS 22503 (1st Cir. Dec. 19, 2016) (Context:  Entrapment defense.  Issue:  Is spoliation a “plus factor?”  From the opinion:  “To lay the groundwork for a finding that the government did more than create an opportunity for the commission of a crime, a defendant may identify ‘plus’ factors — fact ...
United States v. Montoya, 2016 U.S. App. LEXIS 22503 (1st Cir. Dec. 19, 2016) (Context:  Entrapment defense.  Issue:  Is spoliation a “plus factor?”  From the opinion:  “To lay the groundwork for a finding that the government did more than create…
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Inherent Power Sanctions — Extrajudicial Misconduct: Prelitigation Accessing Adversary’s Privileged Materials, Then Lying About It — Dismissal: 4 Factors (Sixth Circuit) — What Is “Contumacious”? —Lying vs. Inconsistent Statements

Bradley J. Delp Revocable Trust v. MSJMR 2008 Irrevocable Trust, 2016 U.S. App. LEXIS 22430 (6th Cir. Dec. 16, 2016): Plaintiffs Bradley J. Delp Revocable Trust, dated January 8, 1992, as amended ("Delp Trust"), and Bradley J. Delp, individually and as trustee of the Delp [*2]  Trust ("Bradley") ( ...
Bradley J. Delp Revocable Trust v. MSJMR 2008 Irrevocable Trust, 2016 U.S. App. LEXIS 22430 (6th Cir. Dec. 16, 2016): Plaintiffs Bradley J. Delp Revocable Trust, dated January 8, 1992, as amended ("Delp Trust"), and Bradley J. Delp, individually and…
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Judicial Notice of Internet Evidence: Notice May Be Taken to Prove the Availability of Information on Internet, But Not for Its Truth

Lifeway Foods, Inc. v. Millenium Prods., Inc., 2016 U.S. Dist. LEXIS 176002 (C.D. Cal. Dec. 14, 2016): Courts may take judicial notice of facts which are not subject to reasonable dispute. Fed. R. Evid. 201. Publicly available government records are commonly subject to judicial notice. Von Koenig ...
Lifeway Foods, Inc. v. Millenium Prods., Inc., 2016 U.S. Dist. LEXIS 176002 (C.D. Cal. Dec. 14, 2016): Courts may take judicial notice of facts which are not subject to reasonable dispute. Fed. R. Evid. 201. Publicly available government records …
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Twitter — Tweet Authenticated by Twitter Handle, Profile Photo, Contents, Reply Letter Doctrine — N.J. Appeals Court Adopts Circumstantial Approach to Social Media Authentication

State v. Hannah, 2016 N.J. Super. LEXIS 156 (N.J. Super. App. Div. Dec. 20, 2016): Defendant Terri Hannah appeals her July 10, 2015 conviction for simple assault after a trial de novo in the Law Division, following her conviction in municipal court. She argues that a Twitter posting was improperly admitted into evidence, citin ...
State v. Hannah, 2016 N.J. Super. LEXIS 156 (N.J. Super. App. Div. Dec. 20, 2016): Defendant Terri Hannah appeals her July 10, 2015 conviction for simple assault after a trial de novo in the Law Division, following her conviction in …
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Inherent Power/§1927 Sanctions Imposed for Ethical Violation — Model Rule 4.3 Governing Contact with Unrepresented Persons — $28,000 Monetary Sanction for Deceiving Lay Person into Cooperating, Defaulting

Daniel v. Marino, 2016 U.S. App. LEXIS 21828 (3d Cir. Dec. 8, 2016): Songwriter Daniel Marino appeals the district court's grant of summary judgment in favor of the defendants in his copyright infringement suit.1 The district court found that, because Marino had jointly created the song Club Girl, later develop ...
Daniel v. Marino, 2016 U.S. App. LEXIS 21828 (3d Cir. Dec. 8, 2016): Songwriter Daniel Marino appeals the district court's grant of summary judgment in favor of the defendants in his copyright infringement suit.1 The district court found that, because…
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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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