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

Appeals — TRO Appealable Only If It Decides Merits of the Case or Is Equivalent to Dismissal — Absolute Judicial Immunity on Injunctive Claim, Regardless of Error, Malice or Excess of Jurisdiction, Unless Jurisdiction Clearly Absent

Ellakkany v. Common Pleas Court of Montgomery Cnty., 2016 U.S. App. LEXIS 13652 (3d Cir. July 27, 2016) : Appellant Mourad Ellakkany appeals from the district court's order denying his motion for a temporary restraining order and preliminary injunction. Because we conclude that this appeal presents no substantial question, we will ...
Ellakkany v. Common Pleas Court of Montgomery Cnty., 2016 U.S. App. LEXIS 13652 (3d Cir. July 27, 2016) : Appellant Mourad Ellakkany appeals from the district court's order denying his motion for a temporary restraining order and preliminary injunction. Because…
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Inherent Power/Contempt Sanctions: Premature Notice of Appeal Cured by Entry of Judgment — Bad Faith Finding “Especially Critical” When Fees Shifted

Hernandez v. City of Vancouver, 2016 U.S. App. LEXIS 14625 (9th Cir. Aug. 9, 2016): MEMORANDUM* *   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Boothe, an attorney, was f ...
Hernandez v. City of Vancouver, 2016 U.S. App. LEXIS 14625 (9th Cir. Aug. 9, 2016): MEMORANDUM* *   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Boothe, an attorney, was …
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Discovery Sanctions — Attorney’s Fees under Rule 37(b)(5) — Although Phrased in Seemingly Mandatory Terms, Court’s Discretion Is Broad — Excessive Fee Request May Be Denied as “Unjust” — Standard under 12(c) = Summary Judgment

Jones v. Dufek, 2016 U.S. App. LEXIS 13549 (D.C. Cir. July 26, 2016): Tawanda Jones owed $1,050.29 to Bank of America. Bank of America sold the debt to CACH, LLC. That company hired the Law Office of David Sean Dufek in San Diego, California, to help it collect on the debt. In 2013, Dufek sent Jones the following letter:
Jones v. Dufek, 2016 U.S. App. LEXIS 13549 (D.C. Cir. July 26, 2016): Tawanda Jones owed $1,050.29 to Bank of America. Bank of America sold the debt to CACH, LLC. That company hired the Law Office of David Sean Dufek…
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Supreme Court Precedent & Dicta: “Federal Courts Are Not Free to Limit Supreme Court Opinions to The[ir] Facts” & Are Bound by the Supreme Court’s Considered Dicta Almost as Firmly as by Its Outright Holdings (Good Quotes)

In re: Pre -Filled Propane Tank Antitrust Litigation, 2016 U.S. App. LEXIS 15748 (8th Cir. Aug. 25, 2016) (Benton, J., dissenting): [F]ederal courts "are not free to limit Supreme Court opinions to the facts of each case." McDonough v. Anoka Cnty., 799 F.3d 931, 942 (8th Cir. 2015) ...
In re: Pre -Filled Propane Tank Antitrust Litigation, 2016 U.S. App. LEXIS 15748 (8th Cir. Aug. 25, 2016) (Benton, J., dissenting): [F]ederal courts "are not free to limit Supreme Court opinions to the facts of each case." McDonough v.…
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RICO: Bank + Outside Contractor, 2 Law Firms, Commc’ns & Processing Firms= AIF Enterprise—Pleading: “9(b) Does Not Require Omniscience” & 12(b)(6) Doesn’t Require “a Prima Facie Case for Each Element” (Good Quotes)

George v. Urban Settlement Servs., 2016 U.S. App. LEXIS 14934 (10th Cir. Aug. 15, 2016): Richard George, Steven Leavitt, Sandra Leavitt, and Darrell Dalton appeal the district court's dismissal of their putative class action against Urban Settlement Services, d/b/a Urban Lending Solutions (Urban) and Bank of Ameri ...
George v. Urban Settlement Servs., 2016 U.S. App. LEXIS 14934 (10th Cir. Aug. 15, 2016): Richard George, Steven Leavitt, Sandra Leavitt, and Darrell Dalton appeal the district court's dismissal of their putative class action against Urban Settlement Services, d/b/a Urban…
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RICO — Operating Partner, Sons, Outside Accountants & “Ill-Defined Cluster of Other Business Entities” ≠ Enterprise — No Discrete Existence Shown by Subsets of the Group Pursuing Their Own Ends Separately

RICO — Operating Partner, Sons, Outside Accountants & “Ill-Defined Cluster of Other Business Entities” ≠ Enterprise — No Discrete Existence Shown by Subsets of the Group Pursuing Their Own Ends Separately Nelson v Nelson, 2016 U.S. App. LEXIS 15164 (8th Cir. Aug. 18, 2016): Steven Nelson claim ...
RICO — Operating Partner, Sons, Outside Accountants & “Ill-Defined Cluster of Other Business Entities” ≠ Enterprise — No Discrete Existence Shown by Subsets of the Group Pursuing Their Own Ends Separately Nelson v Nelson, 2016 U.S. App. LEXIS 15164 (8th…
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Spoliation — ESI — Criminal Cases: Bad Faith Required to Dismiss Indictment (Compare Rule 37(e), Requiring Intent But Not Bad Faith to Dismiss a Civil Complaint)

United States v. White, 2016 U.S. App. LEXIS 15675 (11th Cir. Aug. 25, 2016):  After a jury trial, Lancy White, Jr., appeals his convictions for using the Internet to attempt to entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). A § 2422(b) conviction requires that the sexual activity the defendant en ...
United States v. White, 2016 U.S. App. LEXIS 15675 (11th Cir. Aug. 25, 2016):  After a jury trial, Lancy White, Jr., appeals his convictions for using the Internet to attempt to entice a minor to engage in sexual activity, in…
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Class Actions — 7th Circuit Adopts Strict Scrutiny of Disclosure-Only Settlements — Good Posner Quotes (To Be told “The Board Considered a ‘Number of Factors’ Was to Be Told Nothing”) — Disqualification of Plaintiff’s Counsel Suggested

In re Walgreen Co. Stockholder Litig. (Hays v. Walgreen Co.), 2016 U.S. App. LEXIS 14684 (7th Cir. Aug. 10, 2016) (2-1 decision; dissent forthcoming):In merger litigation the terms "strike suit" and "deal litigation" refer disapprovingly to cases in which [*2]  a large public company announces an agreement that requires share ...
In re Walgreen Co. Stockholder Litig. (Hays v. Walgreen Co.), 2016 U.S. App. LEXIS 14684 (7th Cir. Aug. 10, 2016) (2-1 decision; dissent forthcoming):In merger litigation the terms "strike suit" and "deal litigation" refer disapprovingly to cases in which …
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Attorney-Client Privilege — Common Interest Doctrine — A “Shared Desire to See the Same Outcome … Is Insufficient” (Good Quote)

Brown v. Bank of America, 2016 U.S. App. LEXIS 15190 (9th Cir. Aug. 18, 2016): *   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Larry Brown appeals the district court's dismissal of his case for lack of standing, and the ...
Brown v. Bank of America, 2016 U.S. App. LEXIS 15190 (9th Cir. Aug. 18, 2016): *   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Larry Brown appeals the district…
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Facebook Authentication: 3d Cir. Adopts Circumstantial Approach — Chats Not Self-Authenticated by 902(11) Certificate (Circuit Split) Except to Prove Chats Took Place — Hearsay: Party’s Chat = Admission & Other Side’s Words OK for Context

United States v. Browne, 2016 U.S. App. LEXIS 15668 (3d Cir. Aug. 25, 2016): The advent of social media has presented the courts with new challenges in the prosecution of criminal offenses, including in the way data is authenticated under the Federal Rules of Evidence--a prerequisite to admissibility at trial. Appellant Tony J ...
United States v. Browne, 2016 U.S. App. LEXIS 15668 (3d Cir. Aug. 25, 2016): The advent of social media has presented the courts with new challenges in the prosecution of criminal offenses, including in the way data is authenticated under…
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Recent Posts

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

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

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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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