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

Non-Party’s Emails to Party Not Hearsay When Admitted to Provide Context for Party’s Emails — Providing Means for Suicide to Potentially Adverse Witness Triggers 804(b)(6) Forfeiture of Hearsay Objection to Decedent’s Emails

United States v. Kilmartin, 2016 U.S. Dist. LEXIS 135299 (D. Me. Sept. 30, 2016): With trial looming, Sidney Kilmartin moves to preclude the Government from introducing email statements made by Andrew Denton, as well as expert testimony of toxicologist Dr. Cynthia Morris-Kukoski. The Court rules that the email stateme ...
United States v. Kilmartin, 2016 U.S. Dist. LEXIS 135299 (D. Me. Sept. 30, 2016): With trial looming, Sidney Kilmartin moves to preclude the Government from introducing email statements made by Andrew Denton, as well as expert testimony of toxicologist Dr. …
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Rule 37 Sanctions: 4 Purposes — Rule 30 Sanctions for Deposition Misconduct: Asking Defendant If He Wants to Apologize, Repeating It 6 Times, Demanding Yes Or No Answer, Arguing with Witness — CLE Ordered

Tajonera v. Black Elk Energy Offshore Operations, 2015 U.S. Dist. LEXIS 181998 (E.D. La. Sept. 30, 2015): This matter is before the Court on remand from the District Judge. (Rec. doc. 686). It involves an earlier Order and Reasons issued by this Court in which sanctions were assessed against counsel for Grand Isle Shipyards ("GIS ...
Tajonera v. Black Elk Energy Offshore Operations, 2015 U.S. Dist. LEXIS 181998 (E.D. La. Sept. 30, 2015): This matter is before the Court on remand from the District Judge. (Rec. doc. 686). It involves an earlier Order and Reasons issued…
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Judicial Notice of Internet Evidence — Opponent’s Filings with Gov’t Agency Noticed for Fact of Filing, Not for Contents, on 12(b)(6) Motion — 12(f) Motion to Strike Disfavored, Should Be Denied unless Allegations Have No Conceivable Relevance

Morton & Bassett, LLC v. Organic Spices, Inc., 2016 U.S. Dist. LEXIS 120092 (N.D. Cal. Sept. 6, 2016): Before the Court is the motion to dismiss filed by Defendant-Counterclaimant Organic Spices, Inc. ("Defendant"). Dkt. No. 40 ("Mot."). Defendant moves to dismiss Plaintiff Morton & Bassett, LLC's ("Plaint ...
Morton & Bassett, LLC v. Organic Spices, Inc., 2016 U.S. Dist. LEXIS 120092 (N.D. Cal. Sept. 6, 2016): Before the Court is the motion to dismiss filed by Defendant-Counterclaimant Organic Spices, Inc. ("Defendant"). Dkt. No. 40 ("Mot."). Defendant moves to…
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Experts — Opinion on Credibility of Persons Barred, on Credibility of Documents Permitted — Witnesses May Not Testify as to the Credibility of Other Witnesses (Good Quote)

FHFA v. Nomura Holding Am., Inc., 2015 WL 353929 (S.D.N.Y. Jan. 28, 2015): *1 This Opinion addresses the defendants’1 motion to exclude expert testimony to be offered at trial on behalf of plaintiff Federal Housing Fina ...
FHFA v. Nomura Holding Am., Inc., 2015 WL 353929 (S.D.N.Y. Jan. 28, 2015): *1 This Opinion addresses the defendants’1 motion to exclude expert testimony to be offered at trial on behalf of plaintiff Federal Housing Finance Agency (“FHFA”) by …
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Website Evidence — 21st Century Image of Ancient Document on Government Website = Ancient Document — Judicial Notice OK Where Gov’t Sponsorship Can Be Verified by Visiting Site

Cave Buttes, LLC v. Comm’r of Internal Revenue, 2016 U.S. Tax Ct. LEXIS 27; 147 T.C. No. 10 (U.S. Tax Court Sept. 20, 2016): Cave Buttes, LLC owned 11 acres on a hill that in the distance overlooked downtown Phoenix. But up close it overlooked a dam owned by the Maricopa County Flood Control District. The District staff did not want ...
Cave Buttes, LLC v. Comm’r of Internal Revenue, 2016 U.S. Tax Ct. LEXIS 27; 147 T.C. No. 10 (U.S. Tax Court Sept. 20, 2016): Cave Buttes, LLC owned 11 acres on a hill that in the distance overlooked downtown Phoenix.…
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Is Service of a Subpoena by Federal Express Effective? Circuit Split

Selee Corp. v. McDanal Advanced Ceramic Techs., 2016 U.S. Dist. LEXIS 117319 (W.D.N.C. Aug. 31, 2016): 2   CoorsTek also challenged Plaintiff's second subpoena [*12]  on the grounds that delivery by Federal Express does not constitute service as contemplated by Rule 45. As no ...
Selee Corp. v. McDanal Advanced Ceramic Techs., 2016 U.S. Dist. LEXIS 117319 (W.D.N.C. Aug. 31, 2016): 2   CoorsTek also challenged Plaintiff's second subpoena [*12]  on the grounds that delivery by Federal Express does not constitute service as contemplated by Rule…
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Extrinsic Evidence on 12(b)(6) Motion to Dismiss — Good Discussion of Proper/Improper Use of Judicial Notice and Incorporation by Reference (3 Types) — Unfairness of New Matter in Reply in Era of No Oral Argument

Hsu v. Puma Biotechnology, Inc., 2016 U.S. Dist. LEXIS 136527 (C.D. Cal. Sept. 30, 2016): ORDER DENYING MOTION TO DISMISS Pension Fund, and others filed this lawsuit under the Securities Exchange Act of 1934 ("Exchange Act") and Securities and Exchange Commission Rule 10b-5. Defendants Puma B ...
Hsu v. Puma Biotechnology, Inc., 2016 U.S. Dist. LEXIS 136527 (C.D. Cal. Sept. 30, 2016): ORDER DENYING MOTION TO DISMISS Pension Fund, and others filed this lawsuit under the Securities Exchange Act of 1934 ("Exchange Act") and Securities and Exchange…
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Does Fiduciary Relationship Impose Duty to Disclose Not Otherwise Existing under Securities Laws? — Circuit Split — Duty Usually Depends on Whether Omission Renders Statement False/Misleading, Not Materiality (Texas A.G. Ken Paxton Case)

Securities and Exchange Commission v. Mapp, 2016 U.S. Dist. LEXIS 140141 (E.D. Tex. Oct. 7, 2016): Pending before the Court is Warren K. Paxton, Jr.'s Motion to Dismiss Under Federal Rules of Civil Procedure 12(b)(6) and 9(b) (Dkt. #16). Having considered the relevant pleadings and oral arguments of the parties, ...
Securities and Exchange Commission v. Mapp, 2016 U.S. Dist. LEXIS 140141 (E.D. Tex. Oct. 7, 2016): Pending before the Court is Warren K. Paxton, Jr.'s Motion to Dismiss Under Federal Rules of Civil Procedure 12(b)(6) and 9(b) (Dkt. #16). Having…
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Facebook & Viber Messages Authenticated by One Party to Conversation — Kentucky Follows Circumstantial Approach to Authenticity of Social Media — Not “Magical,” Like Photos (Good Quote)

Kays v. Commonwealth, 2016 Ky. App. LEXIS 177 (Ky. Ct. App. Oct. 14, 2016):  Casey Kays stands convicted of one count of rape1 and one count of sodomy,2 both in the third degree. Conviction followed an October 2014 trial where jurors chose the maximum sentence of five years on each charge, terms to be served con ...
Kays v. Commonwealth, 2016 Ky. App. LEXIS 177 (Ky. Ct. App. Oct. 14, 2016):  Casey Kays stands convicted of one count of rape1 and one count of sodomy,2 both in the third degree. Conviction followed an October 2014 trial where…
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How to Write an Effective Cert Petition (Excellent Discussion and Source Materials) — The Limits of Supreme Court Summary Reversals Given That Discussion of the Merits Is Discouraged in Cert Petitions

Visciotti v Martel, 2016 U.S. App. LEXIS 18579 (9th Cir. Oct. 17, 2016) (Berzon (who wrote the unanimous panel opinion) and Pregerson, concurring): Not surprisingly, I join the principal opinion in full. I write separately to emphasize one point: This case illustrates that Supreme Court summary reversals cannot, and do not, re ...
Visciotti v Martel, 2016 U.S. App. LEXIS 18579 (9th Cir. Oct. 17, 2016) (Berzon (who wrote the unanimous panel opinion) and Pregerson, concurring): Not surprisingly, I join the principal opinion in full. I write separately to emphasize one point: This …
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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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