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

CAFA — For Case Filed Originally in Federal Court, Subject Matter Jurisdiction Isn’t Lost If Court Denies Class Certification — If Plaintiff Voluntarily Amends Complaint, Court Looks to Amended Complaint to Determine Jurisdiction

Wright Transp., Inc. v. Pilot Corp., 2016 U.S. App. LEXIS 20937 (11th Cir. Nov. 22, 2016): This appeal arises out of several years of litigation between the parties now before us, as well as many others. This litigation has occupied [*2]  the federal courts in the form of individual suits, class actions, and multidis ...
Wright Transp., Inc. v. Pilot Corp., 2016 U.S. App. LEXIS 20937 (11th Cir. Nov. 22, 2016): This appeal arises out of several years of litigation between the parties now before us, as well as many others. This litigation has occupied…
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Rule 56(h) Sanctions: Attorney’s Drafting “Likely Perjurious” Affidavit and Inserting Content with Willful Blindness to, or Knowledge of, Inaccuracy = Bad Faith — The Phrase “Abuse of Discretion Is a Nonpejorative Term of Art” (Good Quote)

Jimenez v. City of NY, 2016 U.S. App. LEXIS 21051 (2d Cir. Nov. 21, 2016): SUMMARY ORDER UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the District Court be and hereby is AFFIRMED in part and VACATED in part. ...
Jimenez v. City of NY, 2016 U.S. App. LEXIS 21051 (2d Cir. Nov. 21, 2016): SUMMARY ORDER UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the District Court be and hereby is AFFIRMED…
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Judicial Notice on 12(b)(6) Motion: “Not All Court Records Are Equal with Respect to the Ability to Take Judicial Notice” (Good Quote) — Fact of Party’s Filing (OK) vs. Truth of Matters Asserted (Not) — Facts of Procedural History OK

Malifrando v. Real Time Resolutions, Inc., 2016 U.S. Dist. LEXIS 164497 (E.D. Cal. Nov. 29, 2016): A. Rule 12(b)(6) - Failure to State a Claim *** In ruling on a motion to dismiss filed pursuant to Rule 12(b)(6), the court "may generally consider only allegations contained in the p ...
Malifrando v. Real Time Resolutions, Inc., 2016 U.S. Dist. LEXIS 164497 (E.D. Cal. Nov. 29, 2016): A. Rule 12(b)(6) – Failure to State a Claim *** In ruling on a motion to dismiss filed pursuant to Rule 12(b)(6), the court …
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CT Scan Admissible/Authenticated under Same Standards as X-Rays (Best Evidence, Too) — Electronic Medical Records Authentication = Computer-Generated-Evidence & Business-Records Foundation — Silent Witness Theory

Washington v. State, 2016 Ark. App. 565; 2016 Ark. App. LEXIS 608 (2016): A jury convicted Terrance Washington of grievously injuring then three-month-old T.W. by violently shaking him. Washington was sentenced to 10 years' imprisonment. He appealed the sentencing order and now argues that the circuit court erred when it a ...
Washington v. State, 2016 Ark. App. 565; 2016 Ark. App. LEXIS 608 (2016): A jury convicted Terrance Washington of grievously injuring then three-month-old T.W. by violently shaking him. Washington was sentenced to 10 years' imprisonment. He appealed the sentencing order …
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Facebook Account Authenticated by Testimony Witness Communicated with Defendant on It & Photo on It Was Defendant — Post Authenticated by Contents and Temporal Proximity to Post Def. Admitted He Made — Printout = 1003 Duplicate (Thus, Best Evidence)

People v. Dunn, 2016 Mich. App. LEXIS 942 (Mich. Ct. App. May 12, 2016): Defendant struck and killed Benjamin Berlin with his pick-up truck at a mobile home park on October 30, 2013. Shortly before this incident, defendant posted on Facebook, stating: "I wanna kill" and, later, "i prob wont be h ...
People v. Dunn, 2016 Mich. App. LEXIS 942 (Mich. Ct. App. May 12, 2016): Defendant struck and killed Benjamin Berlin with his pick-up truck at a mobile home park on October 30, 2013. Shortly before this incident, defendant posted on …
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Supreme Court — Courts May Impose “Remedial” Inherent Power Sanctions “Like Monetary Penalties or Attorney Discipline” or Ultimate Sanction of Dismissal — Dismissal Not Mandatory for Violation of False Claims Act’s Seal Requirement

State Farm Fire & Cas. Co. v. United States ex rel. Rigsby, 2016 U.S. LEXIS 7420 (U.S. Dec. 6, 2016): This case addresses the question of the proper remedy when there is a violation of the False Claims Act (FCA) requirement that certain complaints must be sealed for a limited time period. See 31 U. S. C. §3730(b)(2). ...
State Farm Fire & Cas. Co. v. United States ex rel. Rigsby, 2016 U.S. LEXIS 7420 (U.S. Dec. 6, 2016): This case addresses the question of the proper remedy when there is a violation of the False Claims Act (FCA) …
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Privilege: Disclosure of Fact of Communications, Not Using Them as Basis for a Claim or Defense, ≠ Waiver — Plaintiff Suing Defendant & Its Law Firm Lacks Standing to Seek Disqualification of Firm, Suffers No Injury Even If It Must Pay Fees

Rich v. Bank of Am., N.A., 2016 U.S. App. LEXIS 20850 (9th Cir. Nov. 21, 2016): *   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Judith Rich and Vincent Vitale sued Bank of America, N.A. ("BANA") and its counsel Bryan Cave, LLP for al ...
Rich v. Bank of Am., N.A., 2016 U.S. App. LEXIS 20850 (9th Cir. Nov. 21, 2016): *   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Judith Rich and Vincent …
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Arbitration: Is Jurisdiction to Confirm an Award under the FAA Determined by Looking Through to the Underlying Dispute or Must It Arise from the Questions Presented by the Application to Confirm Itself? — Circuit Split

Reading Joint Apprenctice & Elec. Comm. v. Hiester, 2016 U.S. Dist. LEXIS 163328 (E.D. Pa. Nov. 28, 2016): I. Introduction Plaintiff Reading Joint Apprentice and Electrical Committee seeks to confirm an arbitration award it secured against Defendant Eric Hiester for breaching the parties' contract. Hiester ...
Reading Joint Apprenctice & Elec. Comm. v. Hiester, 2016 U.S. Dist. LEXIS 163328 (E.D. Pa. Nov. 28, 2016): I. Introduction Plaintiff Reading Joint Apprentice and Electrical Committee seeks to confirm an arbitration award it secured against Defendant Eric Hiester for…
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Rule 37(c)(1) Sanctions: Treating Physicians Who Don’t File 26(a)(2)(B) Report Limited to Opinions Formed during Treatment — Punitive Damages: Single Digit Ratios Generally Constitutional, 10-1 OK If Act Egregious, Compensatories Low

Morris v. Bland, 2016 U.S. App. LEXIS 20548 (4th Cir. Nov. 16, 2016): This appeal arises from a plaintiffs' verdict in connection with the death of David Allan Woods during his incarceration at the Hill-Finklea Detention Center ("HFDC") in South Carolina. The jury awarded substantial damages based on its finding ...
Morris v. Bland, 2016 U.S. App. LEXIS 20548 (4th Cir. Nov. 16, 2016): This appeal arises from a plaintiffs' verdict in connection with the death of David Allan Woods during his incarceration at the Hill-Finklea Detention Center ("HFDC") in South…
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Texts Authenticated by Fact They Reflect They Came from Sender & Bore Defendant’s Nickname & One Came with His Photo, Evidence Phone Number Was Defendant’s and by the Contents of the Messages

Reyes-Mendoza v. State, 2015 Md. App. LEXIS 388 (Ct. Spec. App. Sept. 29, 2015): On January 31, 2014, a jury in the Circuit Court for Prince George's County convicted Marvin Reyes-Mendoza of attempted first degree murder and related crimes in connection with his participation in a drive-by shooting. The court sentenced appellant t ...
Reyes-Mendoza v. State, 2015 Md. App. LEXIS 388 (Ct. Spec. App. Sept. 29, 2015): On January 31, 2014, a jury in the Circuit Court for Prince George's County convicted Marvin Reyes-Mendoza of attempted first degree murder and related crimes in…
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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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