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

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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Twitter Authentication — Tweets Downloaded by Non-Testifying, Non-Certifying Third Party Not Sufficiently Authenticated; Nor Was Their Contents

People v. Mosley, 2015 Cal. App. Unpub. LEXIS 7470 (Cal. Ct. App. Oct. 20, 2015): In a fourth amended information, codefendants and appellants Lavelle Mosley (Mosley) and Terion Lamarr Collins (Collins) (collectively appellants) were charged with five counts of second degree robbery. (Pen. Code, § 211; counts 1-4, 7. ...
People v. Mosley, 2015 Cal. App. Unpub. LEXIS 7470 (Cal. Ct. App. Oct. 20, 2015): In a fourth amended information, codefendants and appellants Lavelle Mosley (Mosley) and Terion Lamarr Collins (Collins) (collectively appellants) were charged with five counts of second …
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Arbitration — Waiver by Participating in Litigation — Issue for Court or Arbitrator? — Circuit Split

Smith v. Adams & Assocs., 2015 U.S. Dist. LEXIS 138670 (N.D. Ill. Oct. 9, 2015): Smith concedes that the employment agreement that she signed "contains a provision requiring that employment issues, including claims of discrimination, be arbitrated." (Pl.'s Resp., Dkt. 42, at 1.) Nevertheless, she contends that Adams & Ass ...
Smith v. Adams & Assocs., 2015 U.S. Dist. LEXIS 138670 (N.D. Ill. Oct. 9, 2015): Smith concedes that the employment agreement that she signed "contains a provision requiring that employment issues, including claims of discrimination, be arbitrated." (Pl.'s Resp., Dkt.…
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Back Surgery as Spoliation? — Maybe, But Not Where Defendant Was Alerted That Surgery Would Be Forthcoming & Failed to Schedule Adverse Medical Exam — No Intent to Deceive or Deprive Defendant of Evidence

Guzman v. Jones, 2015 U.S. App. LEXIS 18373 (5th Cir. Oct. 22, 2015): Melvin Jones and Celadon Trucking Services appeal the district court's denial of their motion for new trial. They argue that the district court erred by admitting evidence of Jaime [*2]  Guzman's medical expenses and refusing to provide an adverse j ...
Guzman v. Jones, 2015 U.S. App. LEXIS 18373 (5th Cir. Oct. 22, 2015): Melvin Jones and Celadon Trucking Services appeal the district court's denial of their motion for new trial. They argue that the district court erred by admitting evidence …
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Rule 11 and § 1927 Sanctions Denied Where Both Parties Responsible for Multiplication of Proceedings and Movant Could Have Avoided the Costs It Sought to Recover by Acting with Greater Diligence

Nilon v. Natural-Immunogenics Corp., 2015 U.S. Dist. LEXIS 146315 (S.D. Cal. Oct. 28, 2015): I. Introduction and Procedural Background On May 22, 2015, the Honorable Larry A. Burns issued an Order of Dismissal in this case and a Clerk's Judgment was entered that same day dismissing Plaintiff Giovanni Sandov ...
Nilon v. Natural-Immunogenics Corp., 2015 U.S. Dist. LEXIS 146315 (S.D. Cal. Oct. 28, 2015): I. Introduction and Procedural Background On May 22, 2015, the Honorable Larry A. Burns issued an Order of Dismissal in this case and a Clerk's Judgment…
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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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