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

Error to Take Judicial Notice of Wikipedia Page — RICO: Can’t Infer Fraudulent Intent from Plaintiff’s Sending Defendants Expert Report Saying Defendants Were Committing Fraud & They Continued — Efficacy of Attaching Expert Report to Complaint

Bitton v. Gencor Nutrientes, Inc., 2016 U.S. App. LEXIS 11822 (9th Cir. June 28, 016): Michael Bitton, Brian O'Toole, and Robert Sokolove (collectively, "Plaintiffs") appeal the dismissal with prejudice of their putative class action complaint against Gencor Nutrients, Inc., and GE Nutrients, Inc. ("Gencor"); D ...
Bitton v. Gencor Nutrientes, Inc., 2016 U.S. App. LEXIS 11822 (9th Cir. June 28, 016): Michael Bitton, Brian O'Toole, and Robert Sokolove (collectively, "Plaintiffs") appeal the dismissal with prejudice of their putative class action complaint against Gencor Nutrients, Inc., and…
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Best Practices for Authenticating Digital Evidence

Download associated file: Best Practices for Authenticating Digital Evidence.pdf  Above is a link t the manual that Judge Paul Grimm, Professor Dan Capra and I put together identifying Best Practices for Authenticating Digital Evidence.  It is reprinted with permissi ...
Download associated file: Best Practices for Authenticating Digital Evidence.pdf  Above is a link t the manual that Judge Paul Grimm, Professor Dan Capra and I put together identifying Best Practices for Authenticating Digital Evidence.  It is reprinted with permission…
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Disqualification: “More Than Tangentially Related” = “Substantially Related” — Inhouse Counsel’s Knowledge Imputed to Colleagues, Outside Counsel — Good Quotes (“Not Subborning the Disloyalty of Attorneys”)

Dynamic 3D Geosolutions LLC v. Schlumberger Limited, 2016 U.S. App. LEXIS 16645 (Fed. Cir. Sept. 12, 2016): Dynamic 3D Geosolutions LLC ("Dynamic 3D"), along with Acacia Research Corporation and Acacia Research Group LLC (collectively, "Acacia"), appeal from the decision of the United States District Court for the ...
Dynamic 3D Geosolutions LLC v. Schlumberger Limited, 2016 U.S. App. LEXIS 16645 (Fed. Cir. Sept. 12, 2016): Dynamic 3D Geosolutions LLC ("Dynamic 3D"), along with Acacia Research Corporation and Acacia Research Group LLC (collectively, "Acacia"), appeal from the decision of…
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§ 1927 Sanctions Cannot Be Imposed for Initial Pleading — Court 1 Cannot Impose Sanctions for Filing of Second Lawsuit in Second Court That Lacked Jurisdiction to Entertain It

Best Odds Corp. v. Ibus Media Ltd., 2016 U.S. App. LEXIS 13335 (9th Cir. July 21, 2016): Best Odds Corp. appeals the district court's order issuing sanctions under 28 U.S.C. § 1927. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse and vacate the award of attorneys' fees. The district court abused ...
Best Odds Corp. v. Ibus Media Ltd., 2016 U.S. App. LEXIS 13335 (9th Cir. July 21, 2016): Best Odds Corp. appeals the district court's order issuing sanctions under 28 U.S.C. § 1927. We have jurisdiction pursuant to 28 U.S.C. §…
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Spoliation of Tangible Evidence — Bad Faith Required in Fifth Circuit (No Change Post 37(e))

Estes v. Lanx, Inc., 2016 U.S. App. LEXIS 15328 (5th Cir. Aug. 16, 2016): Rocky Estes had a Lanx-created device, the Telluride system, implanted to fuse his spinal vertebrae. After several months, the screws in the system fractured and broke. As a result, the device had to be removed and replaced. About a year later, Estes sue ...
Estes v. Lanx, Inc., 2016 U.S. App. LEXIS 15328 (5th Cir. Aug. 16, 2016): Rocky Estes had a Lanx-created device, the Telluride system, implanted to fuse his spinal vertebrae. After several months, the screws in the system fractured and broke. …
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RICO: Enterprise Can Be Both Victim & Vehicle — Good Quotes, e.g.: “There Is A Plausible Claim Something Odd Was Going On….Oddity Alone Won’t Support a RICO Claim”

Jupiter Aluminum Corp. v. Sabaitis, 2016 U.S. Dist. LEXIS 123843 (N.D. Ind. Sept. 13, 2016): Something went [*2]  very wrong at Jupiter Aluminum Corporation in fiscal year 2014. Jupiter is an Indiana corporation in the business of converting scrap aluminum into coils. It contracts with vendors to provide the scrap. < ...
Jupiter Aluminum Corp. v. Sabaitis, 2016 U.S. Dist. LEXIS 123843 (N.D. Ind. Sept. 13, 2016): Something went [*2]  very wrong at Jupiter Aluminum Corporation in fiscal year 2014. Jupiter is an Indiana corporation in the business of converting scrap aluminum…
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Internet Evidence — Internet Browsing History, Which Shows Past Searches, Is Relevant to Motivation and Predisposition

State v. Bingman, 2016 Wash. App. LEXIS 1505 (Wash. Ct. App. June 28, 2016): David Bingman appeals his convictions for three counts of second degree child molestation and two counts of fourth degree assault involving his 13-year-old daughter and his 12-year-old stepdaughter. He argues that the trial court erred under ER 404(b) ...
State v. Bingman, 2016 Wash. App. LEXIS 1505 (Wash. Ct. App. June 28, 2016): David Bingman appeals his convictions for three counts of second degree child molestation and two counts of fourth degree assault involving his 13-year-old daughter and his…
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Appeals: Trial Counsel’s Misconduct Reversible Only If Pervasive — Waiver by Failure to Object to Argument or Detail Complaints — Broad Statements, References in Passing in Brief Not Enough

Leonard v. Stemtech Int’l Inc., 2016 U.S. App. LEXIS 15565 (3d Cir. Aug. 24, 2016): 1. Counsel's Conduct Stemtech complains that Leonard's counsel made comments during the trial that so prejudiced the jury that the District Court should have granted a new trial. Counsel's conduct "co ...
Leonard v. Stemtech Int’l Inc., 2016 U.S. App. LEXIS 15565 (3d Cir. Aug. 24, 2016): 1. Counsel's Conduct Stemtech complains that Leonard's counsel made comments during the trial that so prejudiced the jury that the District Court should have granted…
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Class Actions — Circuit Split over Proper Way to Analyze Predominance — Applicability of Comcast to Individual Damages

Abraham v. WPX Production Productions, LLC, 2016 U.S. Dist. LEXIS 108492 (D. N.M. Aug. 16, 2016): THIS MATTER comes before the Court on the Plaintiffs' Renewed Motion for Class Certification, filed January 13, 2014 (Doc. 116). The Court held a multi-part [*2]  class certification ...
Abraham v. WPX Production Productions, LLC, 2016 U.S. Dist. LEXIS 108492 (D. N.M. Aug. 16, 2016): THIS MATTER comes before the Court on the Plaintiffs' Renewed Motion for Class Certification, filed January 13, 2014 (Doc. 116). The Court held a…
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Spoliation — No Adverse Inference Where Records Destroyed in Ordinary Course of Business and Movant Failed to Timely Request Them During Discovery

Diaz v. Dep’t of Treasury, 2016 U.S. App. LEXIS 14114 (Fed. Cir. Aug. 3, 2016): Hector Diaz appeals from the final order of the Merit Systems Protection Board sustaining his removal from the position of Individual Taxpayer Adviser Specialist. Because the Board's decision was supported by substantial evidence and ...
Diaz v. Dep’t of Treasury, 2016 U.S. App. LEXIS 14114 (Fed. Cir. Aug. 3, 2016): Hector Diaz appeals from the final order of the Merit Systems Protection Board sustaining his removal from the position of Individual Taxpayer Adviser Specialist. Because…
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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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