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

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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Affidavit of Plaintiff Attached to Complaint Is Not a “Written Instrument” within Rule 10(c) Deemed Part of Complaint — Must Be Legal Document Defining Rights, Like Contract, Will, Note, Security — Circuit Split

Smith v. Hogan, 794 F.3d 249 (2d Cir. 2015): Plaintiff-appellant Aidan A. Smith appeals from a judgment of the United States District Court for the District of Connecticut (Arterton, J.) dismissing his complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Because ...
Smith v. Hogan, 794 F.3d 249 (2d Cir. 2015): Plaintiff-appellant Aidan A. Smith appeals from a judgment of the United States District Court for the District of Connecticut (Arterton, J.) dismissing his complaint pursuant to Rules 12(b)(1) and 12(b)(6) of…
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Recent Posts

Rule 41(b): Five Factors to Be Weighed in Deciding Whether Dismissal Is Appropriate (Second Circuit) — Is A Finding of Bad Faith or Fault Required if Dismissal Is Without Prejudice? — Undecided If Truly Without Prejudice But It Is Required If the Without Prejudice Dismissal Will Act as a Dismissal on the Merits (Here, Because of the Statute of Limitations) — Failure To Consider A Lesser Sanction Than Dismissal Is Generally An Abuse Of Discretion

Spoliation Sanctions/Mootness: Stipulation Resolving “All Pending Discovery Disputes,” Which Are Enumerated, Does Not Moot Subsequent Sanctions Motion for ESI Spoliation — Postjudgment Sanctions Order Is Appealable When District Court Has Finally Disposed of Both Liability and Amount

Rule 37 Default Judgment Sanction: (1) Default Judgment Appropriate Only As a Last Resort, When Less Drastic Sanctions Would Not Ensure Compliance with the Court’s Orders — (2) Default Judgment Sanction Requires Willful or Bad Faith Failure to Obey Discovery Order — (3) Fugitive Defendant’s Failure to Appear at Court-Ordered, Remote Deposition Despite Court Warning That Sanctions Could Follow Disobedience Warrants Default Judgment — (4) District Court Afforded Wide Discretion in Interpreting Its Own Orders — (5) Filing a Notice of Appeal from a Non-Appealable Order (Here, a Discovery Order) Does Not Deprive the District Court of Jurisdiction over the Case

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

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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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