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

YouTube Admissibility — Content Posted on a Party’s YouTube Account by the Party Is Admissible as an Admission — Party Has No Reasonable Expectation of Privacy as to Posted Material

Stotler v. Alvarado, 2012 Del. Super. LEXIS 1098 (Del. Super. Nov. 7, 2012): D. Plaintiff's Motion to Preclude Defendants' Use of Videos and Commentary Uploaded to Plaintiff's YouTube Account Lastly, Plaintiff filed a motion seeking to preclude Defendants' use of material from Plaintiff's o ...
Stotler v. Alvarado, 2012 Del. Super. LEXIS 1098 (Del. Super. Nov. 7, 2012): D. Plaintiff's Motion to Preclude Defendants' Use of Videos and Commentary Uploaded to Plaintiff's YouTube Account Lastly, Plaintiff filed a motion seeking to preclude Defendants' use of…
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RICO Class Action over Illegal Pyramid Scheme Not Certifiable Based on Inference of Reliance on Presumed Legality — Plaintiffs Could’ve Sought to Profit from Illegality — No Causation, Especially Where Illegality May Have Been Been Disclosed

Torres v. SGE Mgmt., LLC, 2015 U.S. App. LEXIS 17974 (5th Cir. Oct. 16, 2015): Stream Energy, its marketing arm Ignite, and a number of other defendants (collectively, the "Defendants") appeal the district court's order certifying a class of some 150,000 plaintiffs (the "Plaintiffs") in this civil action brough ...
Torres v. SGE Mgmt., LLC, 2015 U.S. App. LEXIS 17974 (5th Cir. Oct. 16, 2015): Stream Energy, its marketing arm Ignite, and a number of other defendants (collectively, the "Defendants") appeal the district court's order certifying a class of some…
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§ 1927 Sanctions — Filing Even a “Manifestly Deficient” Amended Complaint at Court’s Invitation Doesn’t Needlessly Multiply the Proceedings, But Filing Deficient Papers to Defend It Does Do So

Nollner v. S. Baptist Convention, Inc., 2015 U.S. App. LEXIS 18270 (6th Cir. Oct. 16, 2015): Ron and Beverly Nollner appeal the district court's order granting defendants' motion to dismiss, and denying the Nollners' motion for leave to amend. Even though the Nollners agreed to a choice-of-law provision stating tha ...
Nollner v. S. Baptist Convention, Inc., 2015 U.S. App. LEXIS 18270 (6th Cir. Oct. 16, 2015): Ron and Beverly Nollner appeal the district court's order granting defendants' motion to dismiss, and denying the Nollners' motion for leave to amend. Even …
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Attorney-Client Privilege — Crime-Fraud — Prima Facie Showing (Factors) — More Stringent Standard If Very Act of Litigating Is Alleged to Further the Fraud — Does It Matter If Mohawk Overruled Perlman? (Circuit Split)

In re Grand Jury Subpoenas, 2015 U.S. App. LEXIS 17633 (2d Cir Oct. 6, 2015): Intervenor-appellant is an investment company (the "Company") whose president and owner (the "Owner") is the subject of an ongoing grand jury investigation into tax fraud. On June 5, 2015, the United States District Court for the Southern ...
In re Grand Jury Subpoenas, 2015 U.S. App. LEXIS 17633 (2d Cir Oct. 6, 2015): Intervenor-appellant is an investment company (the "Company") whose president and owner (the "Owner") is the subject of an ongoing grand jury investigation into tax fraud.…
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Error to Deny Amendment Because Plaintiff Stood on Complaint after Premotion Conference — Request to Amend in Brief Enough — Group Pleading OK for Common Law Fraud — Fraud Need Only Be As Plausible As Other Explanations—Corporate Scienter Defined

Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec. LLC, 797 F.3d 160 (2d Cir. 2015): This case, like so many others of late, concerns liability for investment losses. Specifically, it asks who, if anyone, ought to shoulder legal blame for losses suffered as part of the recent financial crisis. Plaintiffs-Appellants--whose names are ...
Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec. LLC, 797 F.3d 160 (2d Cir. 2015): This case, like so many others of late, concerns liability for investment losses. Specifically, it asks who, if anyone, ought to shoulder legal…
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RICO — Third-Party Payers Whose Pharmacy Benefits Managers Relied on Pharma Manufacturer’s Misrepresentations to Authorize Reimbursement State Concrete Injury and Bridge-Like Causation

In re Avandia Mktg. Sales Pracs. & Prod. Liab. Litig., 2015 U.S. App. LEXIS 18633 (3d Cir. Oct. 26, 2015): This interlocutory appeal involves claims brought against GlaxoSmithKline LLC (GSK) by third-party payors (TPPs), based on GSK's alleged misrepresentation and concealment of the significant safety risks associated ...
In re Avandia Mktg. Sales Pracs. & Prod. Liab. Litig., 2015 U.S. App. LEXIS 18633 (3d Cir. Oct. 26, 2015): This interlocutory appeal involves claims brought against GlaxoSmithKline LLC (GSK) by third-party payors (TPPs), based on GSK's alleged misrepresentation and …
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Email Authentication — Act of Producing Emails Implicitly Authenticates Them — Circumstantial Authentication (Factors)

Finnegan v. Myers,2015 U.S. Dist. LEXIS 119715 (N.D. Ind. Sept. 8, 2015): Exhibit 26 The State Defendants also argue that Exhibit 26 (DE #224-26) should be stricken in its entirety because it contains inadmissible hearsay. The Plaintiffs disagree and assert that the information is being offered "to show the inform ...
Finnegan v. Myers,2015 U.S. Dist. LEXIS 119715 (N.D. Ind. Sept. 8, 2015): Exhibit 26 The State Defendants also argue that Exhibit 26 (DE #224-26) should be stricken in its entirety because it contains inadmissible hearsay. The Plaintiffs disagree and assert…
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Spoliation — Plaintiff (IT Expert) Barred from Offering Documents after Running 5 Programs That Wiped Out Potential Evidence She Fabricated Them — Willfulness vs. Bad Faith — No Adverse Inference But Instruction Jury May Consider Events

Ericksen v. Kaplan Higher Education, LLC, 2015 U.S. Dist. LEXIS 142789 (D. Md. Oct. 21, 2015): Plaintiff Karen Ericksen filed this case against Defendants Kaplan Higher Education, LLC and TESST-KAP, LLC, alleging employment-related violations of federal and Maryland state law. (Am. Compl., ECF No. 16.) This case has been referred to m ...
Ericksen v. Kaplan Higher Education, LLC, 2015 U.S. Dist. LEXIS 142789 (D. Md. Oct. 21, 2015): Plaintiff Karen Ericksen filed this case against Defendants Kaplan Higher Education, LLC and TESST-KAP, LLC, alleging employment-related violations of federal and Maryland state law.…
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Social Media Authentication — Yelp Reviews Considered on Preliminary Injunction on Issue of Actual Confusion in Trademark Case

Rib City Franchising, LLC v. Bowen, 2015 U.S. Dist. LEXIS 149797 (D. Utah Nov. 3, 2015): Plaintiff Rib City Franchising, LLC (Rib City) moves for a preliminary injunction against Defendants Culinary Designs, LLC, Way Out West Restaurant Group, Inc. (WOW), and individual Defendants Sarah Bowen and Toni Jorgensen (collectively, Defendan ...
Rib City Franchising, LLC v. Bowen, 2015 U.S. Dist. LEXIS 149797 (D. Utah Nov. 3, 2015): Plaintiff Rib City Franchising, LLC (Rib City) moves for a preliminary injunction against Defendants Culinary Designs, LLC, Way Out West Restaurant Group, Inc. (WOW),…
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Pleading — Counsel Should Tell Confidential Informants They Will Be Quoted in Complaint and Verify Statements before Using Them — Likely Sanctionable Not to — Rules Don’t Allow “‘See No Evil’ Approach to Pleading’” (Good Quotes)

In re Millennial Media, Inc., Secs. Litig., 2015 U.S. Dist. LEXIS 69534 (S.D.N.Y. May 29, 2015) (Engelmayer, J.): Plaintiffs in this putative securities class action have filed a notice of voluntary dismissal without prejudice, which defendants do not oppose. The Court accordingly so dismisses this case. This Opinion and Order address ...
In re Millennial Media, Inc., Secs. Litig., 2015 U.S. Dist. LEXIS 69534 (S.D.N.Y. May 29, 2015) (Engelmayer, J.): Plaintiffs in this putative securities class action have filed a notice of voluntary dismissal without prejudice, which defendants do not oppose. The…
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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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