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

Sanctions — Inherent Power Extends to Misconduct before Court-Supervised Settlement Program, Apt to Punish Ethics Violations — Factors in Selecting Sanction — Loosely Formulated, Imprecise Objection Doesn’t Preserve Error (Good Quote)

In re Deepwater Horizon, 2016 U.S. App. LEXIS 10069 (5th Cir. June 2, 2016): Glen Lerner and Jonathan Andry appeal the district court's sanction order disqualifying them from further participation in the Court-Supervised Settlement Program related to the Deepwater Horizon oil spill, and Andry Lerner, L.L.C. appeals the den ...
In re Deepwater Horizon, 2016 U.S. App. LEXIS 10069 (5th Cir. June 2, 2016): Glen Lerner and Jonathan Andry appeal the district court's sanction order disqualifying them from further participation in the Court-Supervised Settlement Program related to the Deepwater Horizon …
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Does Rule 15(b)(2) — Amendment of Complaint by Trial of the Issue on Express or Implied Consent — Apply at the Summary Judgment Stage? — Circuit Split

Cedar Valley Exteriors, Inc. v. Professional Exteriors, Inc., 2016 U.S. Dist. LEXIS 84868 (D. Minn. June 29, 2016): Plaintiff Cedar Valley Exteriors, Inc. ("Cedar Valley") brought this action against defendant Professional Exteriors, Inc. ("Professional Exteriors"), alleging that Professional Exteriors infringed tw ...
Cedar Valley Exteriors, Inc. v. Professional Exteriors, Inc., 2016 U.S. Dist. LEXIS 84868 (D. Minn. June 29, 2016): Plaintiff Cedar Valley Exteriors, Inc. ("Cedar Valley") brought this action against defendant Professional Exteriors, Inc. ("Professional Exteriors"), alleging that Professional Exteriors infringed…
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Removal: Pre-Suit Discovery Proceedings Are Removable Under the Removal Clarification Act of 2011, As Are Other Previously Unremovable Proceedings

Estate of Wisler, 2016 U.S. Dist. LEXIS 8690 (S.D. Ind. Jan. 25, 2016): In 2011, Congress passed the Removal Clarification Act of 2011 in response to "recent Federal court cases that reflect an inter- and intra-circuit split as to whether State 'pre-suit discovery' laws qualify as civil actions or criminal prosecutions th ...
Estate of Wisler, 2016 U.S. Dist. LEXIS 8690 (S.D. Ind. Jan. 25, 2016): In 2011, Congress passed the Removal Clarification Act of 2011 in response to "recent Federal court cases that reflect an inter- and intra-circuit split as to whether…
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RICO: Threat to File Suit against Government, Even If Made in Bad Faith & Supported by False Affidavits, Isn’t “Wrongful” within Hobbs Act — Where Citizen May Request Records Anonymously, Using Fake Identity ≠ Mail Fraud

Town of Gulfstream v. O’Boyle, 2016 U.S. App. LEXIS 11183 (11th Cir. June 21, 2016): The Town of Gulf Stream, Florida ("Gulf Stream" or the "town") and its contractor Wantman Group, Inc. ("Wantman") (collectively the "plaintiffs") appeal the dismissal of their class action complaint1
Town of Gulfstream v. O’Boyle, 2016 U.S. App. LEXIS 11183 (11th Cir. June 21, 2016): The Town of Gulf Stream, Florida ("Gulf Stream" or the "town") and its contractor Wantman Group, Inc. ("Wantman") (collectively the "plaintiffs") appeal the dismissal of…
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Spoliation — Elements of Substantive Spoliation Cause of Action under Ohio Law

Newberry v. Silverman, 2015 U.S. App. LEXIS 8904 (6th Cir. May 29, 2015): 3. Because Newberry's [*23]  complaint against Silverman was not disrupted by the allegedly destroyed dental records, the spoliation claim cannot stand Finally, the district court correctly determined that Newberry& ...
Newberry v. Silverman, 2015 U.S. App. LEXIS 8904 (6th Cir. May 29, 2015): 3. Because Newberry's [*23]  complaint against Silverman was not disrupted by the allegedly destroyed dental records, the spoliation claim cannot stand Finally, the district court correctly determined…
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§ 1927 and FRAP 38 Sanctions — Appeal Is Frivolous If Obviously without Merit and Vexatious If Prosecuted for Delay, Harassment or Other Improper Purpose

U.S. ex rel. Jacobs v. Lambda Research, Inc., 2015 U.S. App. LEXIS 7308 (6th Cir. May 1, 2015): A. We review the district court's grant of summary judgment de novo. Bultema v. United States, 359 F.3d 379, 382 (6th Cir. 2004). To prevail on a claim under the FCA, a plaintiff must show that the defen ...
U.S. ex rel. Jacobs v. Lambda Research, Inc., 2015 U.S. App. LEXIS 7308 (6th Cir. May 1, 2015): A. We review the district court's grant of summary judgment de novo. Bultema v. United States, 359 F.3d 379, 382 (6th Cir.…
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Attorney-Client Privilege — Talks with Law Firm GC Privileged — No Current Client Exception — Privilege Intact Even If RPC Violated, Intent to Disclose Exists — Reliance on Privileged Matter Sine Qua Non of At-Issue Waiver (Good Quotes)

Stock v. Schnader Harrison Segal & Lewis LLP, 2016 N.Y. App. Div. LEXIS 5082 (1st Dept. June 30, 2016): The primary issue on this appeal is whether attorneys who have sought the advice of their law firm's in-house general counsel on their ethical obligations in representing a firm client may successfully invoke attorney-cl ...
Stock v. Schnader Harrison Segal & Lewis LLP, 2016 N.Y. App. Div. LEXIS 5082 (1st Dept. June 30, 2016): The primary issue on this appeal is whether attorneys who have sought the advice of their law firm's in-house general counsel …
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Facebook Admissibility: Photos Authenticated by Witness Familiar with Page Owner’s Appearance — Posts by Fact They Emanated from Owner’s User Name and Were Obtained via Search Warrant for His Account

People v. Johnson, 2016 Mich. App. LEXIS 1256 (Mich. Ct. App. June 28, 2016): Defendant, Timothy Noel Johnson, was convicted by a jury of first-degree premeditated murder, MCL 750.316(1)(a), possession of a firearm during the commission of a felony (felony firearm), MCL 750.227b, and felon in possession of a ...
People v. Johnson, 2016 Mich. App. LEXIS 1256 (Mich. Ct. App. June 28, 2016): Defendant, Timothy Noel Johnson, was convicted by a jury of first-degree premeditated murder, MCL 750.316(1)(a), possession of a firearm during the commission of a felony (felony …
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Judicial Notice of Internet Evidence: Party’s Filings with State, Local Governments — Pending Appeal, District Court Retains Jurisdiction to Modify Injunction But May Not Materially Alter the Status of the Case on Appeal or Change the Core Issues

Nat’l Grange of the Order of Patrons of Husbandry v. Calif. State Grange, 2016 U.S. Dist. LEXIS 53038 (E.D. Cal. April 20, 2016): Plaintiff National Grange of the Order of Patrons of Husbandry brought this action against defendant California State Grange for trademark infringement and unfair competition under the Lanham Act. Present ...
Nat’l Grange of the Order of Patrons of Husbandry v. Calif. State Grange, 2016 U.S. Dist. LEXIS 53038 (E.D. Cal. April 20, 2016): Plaintiff National Grange of the Order of Patrons of Husbandry brought this action against defendant California State…
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Facebook Messages Authenticated by Recipient: She and Sender Used a Code Known Only to Them, She Recognized “the Way He Said Things” and the Subject Matter Was Known Only to Them — Recipient’s Messages Received for Context ≠ Hearsay

Bullman v. State, 2016 Tex. App. LEXIS 3775 (Tex. Ct. App. Apr. 13, 2016): In four issues, appellant, Curtis Nathaniel Bullman, challenges his conviction for continuous sexual abuse of a young child. See Tex. Penal Code Ann. § 21.02 (West Supp. 2015). Bullman contends the trial court abused its discretion in admitti ...
Bullman v. State, 2016 Tex. App. LEXIS 3775 (Tex. Ct. App. Apr. 13, 2016): In four issues, appellant, Curtis Nathaniel Bullman, challenges his conviction for continuous sexual abuse of a young child. See Tex. Penal Code Ann. § 21.02 (West…
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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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