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

Documents Obtained from FDIC (or Other Governmental) Website Are Self-Authenticating and Properly Considered on Summary Judgment — Judicial Notice OK — (Official Documents of the Agency, Not Third Party Documents Posted on Site)

Avery v. LPP Mortgage, Ltd., 2015 Tex. App. LEXIS 11136 (Tex. Ct. App. Oct. 29, 2015): Appellant, Allan R. Avery, appeals the trial court's grant of summary judgment in favor of appellee, LPP Mortgage, Ltd. [LPP], on two notes guaranteed by Avery. We affirm in part and reverse and remand in part. ***2."the ...
Avery v. LPP Mortgage, Ltd., 2015 Tex. App. LEXIS 11136 (Tex. Ct. App. Oct. 29, 2015): Appellant, Allan R. Avery, appeals the trial court's grant of summary judgment in favor of appellee, LPP Mortgage, Ltd. [LPP], on two notes guaranteed…
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Rule 15(a) — Court Can’t Order Plaintiff to Amend before Decision on 12(b)(6) Motion or Lose Right to Do So — Liberal Amendment Especially Important in Light of Twiqbal — Rigorous Appellate Review If No Amendment Allowed

Runnion v. Girl Scouts of Greater Chicago, 786 F.3d 510 (7th Cir. 2015): This appeal presents substantive issues concerning the scope of the federal Rehabilitation Act's coverage of private organizations (like the Girl Scouts) that receive federal funding. Before addressing the merits, though, we must address some recurring proced ...
Runnion v. Girl Scouts of Greater Chicago, 786 F.3d 510 (7th Cir. 2015): This appeal presents substantive issues concerning the scope of the federal Rehabilitation Act's coverage of private organizations (like the Girl Scouts) that receive federal funding. Before addressing…
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Internet Evidence — Official Records from Government Websites Bearing Distinctive Characteristics (Official Insignias) Are Self-Authenticating under Fed. R. Evid. 902(5)

Johnson v. Cate, 2015 U.S. Dist. LEXIS 120839 (E.D. Cal. Sept. 10, 2015): Plaintiff is a state prisoner proceeding pro se in this civil rights action brought pursuant to 42 U.S.C. § 1983. The matter proceeds against Defendant Harrington on Plaintiff's Eighth Amendment claim and state law negligence claim. (ECF Nos. 19, 20, and 23 ...
Johnson v. Cate, 2015 U.S. Dist. LEXIS 120839 (E.D. Cal. Sept. 10, 2015): Plaintiff is a state prisoner proceeding pro se in this civil rights action brought pursuant to 42 U.S.C. § 1983. The matter proceeds against Defendant Harrington on…
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Spoliation Sanctions under Inherent Power Require Finding of Bad Faith — Prelitigation Spoliation Not Sanctionable under Rule 37(b)(2)

Environmental World Watch, Inc. v. Walt Disney Co., 2015 U.S. App. LEXIS 19782 (9th Cir. Nov. 13, 2015): These appeals arise from litigation filed in 2009 by Environmental World Watch ("EWW") and individuals against The Walt Disney Company, Disney Enterprises, Inc., and Disney [*2]  Worldwide Services, Inc. ...
Environmental World Watch, Inc. v. Walt Disney Co., 2015 U.S. App. LEXIS 19782 (9th Cir. Nov. 13, 2015): These appeals arise from litigation filed in 2009 by Environmental World Watch ("EWW") and individuals against The Walt Disney Company, Disney Enterprises,…
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Failing to Request Leave to Amend Complaint Prior to Dismissal, or Including Only a One-Line Request in Brief without Explaining Basis for Proposed Amendment, Warrants Denial of Belated Application

Muathe v. Fifth Third Bank, 2015 U.S. App. LEXIS 17618 (10th Cir. Oct. 8, 2015): Assuming his complaint was properly dismissed, Mr. Muathe says the district court at least should have allowed him to amend. But before the entry of judgment he never filed a motion asking to amend and he never suggested how he might be able to amend his ...
Muathe v. Fifth Third Bank, 2015 U.S. App. LEXIS 17618 (10th Cir. Oct. 8, 2015): Assuming his complaint was properly dismissed, Mr. Muathe says the district court at least should have allowed him to amend. But before the entry of…
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RICO Statute of Limitations Accrual = Injury + (Reasonable) Discovery — No Fraudulent Tolling Absent Due Diligence — Limitations Period Extended Only by Length of Period Due Dilig. Exerted; Period Doesn’t Start Anew at End of Due Diligence

Madison 92nd St. Assocs., LLC v. Courtyard Mgmt. Corp., 2015 U.S. App. LEXIS 16386 (2d Cir. Sept. 15, 2015): ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that the order of the district court is AFFIRMED. The appellant, Madison 92nd Street Associates, LLC (&quo ...
Madison 92nd St. Assocs., LLC v. Courtyard Mgmt. Corp., 2015 U.S. App. LEXIS 16386 (2d Cir. Sept. 15, 2015): ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that the order of the district court is AFFIRMED.…
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Sanctions Appeal by Counsel Mooted Where Sanction Imposed on Client (for Counsel’s Conduct) and Client Settles Sanction, Despite Harm to Counsel’s Reputation from Language in Opinion — 2 to 1 Decision — Where Is the Line on Appealability?

Tesco Corp. v. Nat’l Oil Well Varco, LP, 2015 U.S. App. LEXIS 18903 (Fed. Cir. Oct. 30, 2015): Plaintiff Tesco Corporation ("Tesco") and interested parties-appellants [*2]  Glenn A. Ballard, Jr. and John F. Luman, III (collectively "the Attorneys") filed this appeal from a decision of the United States D ...
Tesco Corp. v. Nat’l Oil Well Varco, LP, 2015 U.S. App. LEXIS 18903 (Fed. Cir. Oct. 30, 2015): Plaintiff Tesco Corporation ("Tesco") and interested parties-appellants [*2]  Glenn A. Ballard, Jr. and John F. Luman, III (collectively "the Attorneys") filed this …
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Facebook Authentication — Witness Who Accepted Friend Request Testifies She Was Tagged on Threatening Posts and Received Threatening Photo Via Facebook News Feed, and Her Screenshots of Posts and Photos Are Fair and Accurate

People v. Wooten, 2015 Cal. App. Unpub. LEXIS 8115 (Cal. Ct. App. Nov. 12, 2015): A jury convicted William Fred Wooten of making a criminal threat.*** FACTUAL AND PROCEDURAL BACKGROUND Jene Yates suspected that her 16-year-old sister was acting as a prostitute for Wooten. Yates had seen an advertisement featuring her sis ...
People v. Wooten, 2015 Cal. App. Unpub. LEXIS 8115 (Cal. Ct. App. Nov. 12, 2015): A jury convicted William Fred Wooten of making a criminal threat.*** FACTUAL AND PROCEDURAL BACKGROUND Jene Yates suspected that her 16-year-old sister was acting as…
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Judicial Notice of Internet Evidence — Can Emails of Public Entities Be Judicially Noticed as “Official Acts?” (Would Requisite Foundation Be Tantamount to Conventional Authentication?)

Takla v. Regents of the Univ. of Calif., 2015 U.S. Dist. LEXIS 150587 (C.D. Cal. Nov. 2, 2015): I. INTRODUCTION On August 28, 2015, plaintiffs Nefertiti Takla ("Takla") and Kristen Hillaire Glasgow ("Glasgow") filed their First Amended Complaint ("FAC") against defendant the Regent ...
Takla v. Regents of the Univ. of Calif., 2015 U.S. Dist. LEXIS 150587 (C.D. Cal. Nov. 2, 2015): I. INTRODUCTION On August 28, 2015, plaintiffs Nefertiti Takla ("Takla") and Kristen Hillaire Glasgow ("Glasgow") filed their First Amended Complaint ("FAC") against…
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§ 1927 & Inherent Power Sanctions for Sending Settlement Agreement to Adversary Ostensibly Signed by Dead Client — Cross-Motion Denied Where “The Consequences of Counsel’s Violation Are Too Minimal to Justify Monetary Sanctions” (Good Quote)

Hubbard v. Plaza Bonita, LP, 2015 U.S. App. LEXIS 19715 (9th Cir. Nov. 12, 2015): The Appellant, Lynn Hubbard III, represented his mother in a lawsuit against a shopping mall and its tenants, alleging they denied her equal access to their facilities in violation of the Americans with Disabilities Act of 1990 ("ADA"), ...
Hubbard v. Plaza Bonita, LP, 2015 U.S. App. LEXIS 19715 (9th Cir. Nov. 12, 2015): The Appellant, Lynn Hubbard III, represented his mother in a lawsuit against a shopping mall and its tenants, alleging they denied her equal access to …
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Recent Posts

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

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.”

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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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