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

Collateral Order Doctrine Does Not Permit Appeal of Denial of Motion to Dismiss on Ground Claims Belong in Another Forum (Here, Administrative) — Good Lists of Cases That Collateral Order Doctrine Does, and Does Not, Apply to

Fischer v. NY St. Dept. of Law, 2016 U.S. App. LEXIS 1979 (2d Cir. Feb. 5, 2016): Plaintiff-appellee Carol Fischer is pursuing in the United States District Court for the Southern District of New York a claim against defendant-appellant, her former employer--whose proper name is the Division of Appeals and Opinions of the Offi ...
Fischer v. NY St. Dept. of Law, 2016 U.S. App. LEXIS 1979 (2d Cir. Feb. 5, 2016): Plaintiff-appellee Carol Fischer is pursuing in the United States District Court for the Southern District of New York a claim against defendant-appellant, her …
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Internet Evidence — Printouts from Third Party, Private Websites (Here, Medical) = Inadmissible Hearsay and Are No Substitute for Expert Testimony on Causation

2. Defendants' Motion to Strike Printouts of Internet Websites [*12]  Hernandez v. Smith, 2015 U.S. Dist. LEXIS 90740 (E.D. Cal. July 12, 2015): This action is proceeding against Defendants Drs. R. D. Smith and L. Kirk for deliberate indifference to Plaintiff's serious medical needs in their treatment ...
2. Defendants' Motion to Strike Printouts of Internet Websites [*12]  Hernandez v. Smith, 2015 U.S. Dist. LEXIS 90740 (E.D. Cal. July 12, 2015): This action is proceeding against Defendants Drs. R. D. Smith and L. Kirk for deliberate indifference to…
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Recipient of Voicemail May Authenticate It by Memory, Regardless of Existence of Transcript

Pawelczak v. Nations Recovery Ctr., Inc., 2012 U.S. Dist. LEXIS 82916 (N.D. Ill. June 14, 2012): Pawelczak filed this action against NRC for alleged violations of the Fair Debt Collection Practices Act ("FDCPA" or "the Act") 15 U.S.C. § 1692, et seq. Pawelczak alleges that NRC left several message ...
Pawelczak v. Nations Recovery Ctr., Inc., 2012 U.S. Dist. LEXIS 82916 (N.D. Ill. June 14, 2012): Pawelczak filed this action against NRC for alleged violations of the Fair Debt Collection Practices Act ("FDCPA" or "the Act") 15 U.S.C. § 1692,…
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Rule 11 Sanctions — Vexatious Litigant Restrictions Imposed on Pro Ses Who Filed 3rd Case after 2 Dismissed as Not Properly in Federal Court — Bad Faith Not Essential — OK to Rely on Filings in Other (State) Court to Find Current Filing Sanctionable

Preston v. CitiMortgage, Inc., 2016 U.S. App. LEXIS 190 (10th Cir. Jan. 7, 2016): Isaiah Preston, Jr. and Donetta Preston appeal from the district court's dismissal of their federal lawsuit and imposition of filing restrictions. [*2]  Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. ...
Preston v. CitiMortgage, Inc., 2016 U.S. App. LEXIS 190 (10th Cir. Jan. 7, 2016): Isaiah Preston, Jr. and Donetta Preston appeal from the district court's dismissal of their federal lawsuit and imposition of filing restrictions. [*2]  Exercising jurisdiction under 28…
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Judicial Notice of Internet Evidence — State Agency Regulations (Hunting Policies) from Agency Website

Safari Club Int’l v. Harris, 2016 U.S. Dist. LEXIS 1349 (E.D. Cal. Jan. 5, 2016): Plaintiff states in its FAC: "In this lawsuit, Plaintiff . . . challenges the State of California's [statutory] ban on the importation, transportation, and possession in California of mountain lions hunted outside of California" (referred ...
Safari Club Int’l v. Harris, 2016 U.S. Dist. LEXIS 1349 (E.D. Cal. Jan. 5, 2016): Plaintiff states in its FAC: "In this lawsuit, Plaintiff . . . challenges the State of California's [statutory] ban on the importation, transportation, and possession…
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Should Class Certification Be Decided Before Standing? Circuit Split

Richards v. Direct Energy Servs., LLC, 2015 U.S. Dist. LEXIS 157071 (D. Conn. Nov. 20, 2015): 1   The Court notes that there appears to be a Circuit split between the Seventh and Second Circuit on the issue of whether class certification should be decided before standing. See 6803 Boulevard East, LLC v. DIRECTV, ...
Richards v. Direct Energy Servs., LLC, 2015 U.S. Dist. LEXIS 157071 (D. Conn. Nov. 20, 2015): 1   The Court notes that there appears to be a Circuit split between the Seventh and Second Circuit on the issue of whether class …
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Facebook Messages Authenticated by Fact They Were Sent to/from Defendant’s Account, His Instructions to Witness to Delete Some of Them and His Acting in Accordance with Plans Exchanged in Them

People v. Holwerda, 2015 Mich. App. LEXIS 2310 (Mich. Ct. App. Dec. 10, 2015): Following a jury trial, defendant was convicted of three counts of third-degree criminal sexual conduct (CSC-III), MCL 750.520d(1)(a) (sexual penetration with a victim between 13 and 16 years of age). The trial court sentenced defendant as an habit ...
People v. Holwerda, 2015 Mich. App. LEXIS 2310 (Mich. Ct. App. Dec. 10, 2015): Following a jury trial, defendant was convicted of three counts of third-degree criminal sexual conduct (CSC-III), MCL 750.520d(1)(a) (sexual penetration with a victim between 13 and…
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RICO — Neither Shareholder Nor Creditor Has Standing to Sue for Injuries Resulting from Injury Sustained in First Instance by Corporation

Harris v. Orange S.A., 2015 U.S. App. LEXIS 22905 (11th Cir. Dec. 30, 2015): Marcia Harris appeals the district court's dismissal of her complaint against Orange Business Services U.S., Inc. ("OBS"), a Delaware corporation located in Georgia; Orange S.A. ("Orange"), a corporation located in France; Almerys S.A. ...
Harris v. Orange S.A., 2015 U.S. App. LEXIS 22905 (11th Cir. Dec. 30, 2015): Marcia Harris appeals the district court's dismissal of her complaint against Orange Business Services U.S., Inc. ("OBS"), a Delaware corporation located in Georgia; Orange S.A. ("Orange"),…
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Email/Texts — Texts Authenticated by Fact They Were Downloaded from Cell on Defendant’s Person (Even Though Registered to & Sometimes Use by Another), Refer to Him by First Name and Concern Drugs of Sort Possessed by Him — Texts Then = Admissions

Glispie v. State, 2015 Ga. App. LEXIS 748 (Ga. Ct. App. Nov. 20, 2015): In connection with a traffic stop, Jaylend Glispie was convicted of violating the Georgia Controlled Substances Act for possession with intent to distribute cocaine and 3, 4-methylenedioxymethcathinone (methylone) (2 counts),1 obstructi ...
Glispie v. State, 2015 Ga. App. LEXIS 748 (Ga. Ct. App. Nov. 20, 2015): In connection with a traffic stop, Jaylend Glispie was convicted of violating the Georgia Controlled Substances Act for possession with intent to distribute cocaine and 3,…
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Spoliation Sanctions — Default Judgment — Calculating Reasonable Damages When Essential Evidence Has Been Spoliated — New Argument May Be Considered on Appeal If It Is Purely Legal, Requires No New Facts or Manifest Injustice Would Result

Peter Kiewit Sons’, Inc. v. Wall Street Equity Grp., Inc., 2016 U.S. App. LEXIS 52 (8th Cir. Jan. 6, 2016): This appeal arises out of a trademark infringement suit filed by Peter Kiewit Sons', Inc., in which the district court1 first entered a default against the defendants as ...
Peter Kiewit Sons’, Inc. v. Wall Street Equity Grp., Inc., 2016 U.S. App. LEXIS 52 (8th Cir. Jan. 6, 2016): This appeal arises out of a trademark infringement suit filed by Peter Kiewit Sons', Inc., in which the district court…
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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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