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

Experts — Abusive Supplementation of Report — Rule 37(c) Exclusion of New Damages Evidence and Theories That Constituted Not Mere Supplementation But Untimely New Opinion

Munchkin, Inc. v. Playtex Products, LLC, 2015 U.S. App. LEXIS 13424 (9th Cir. July 31, 2015): The district court also acted within its discretion when it determined that Munchkin failed to comply with its obligations under Fed. R. Civ. P. 26 and when it fashioned an exclusion sanction [*3]  pursuant to Fed R. Civ. P. 37. Alth ...
Munchkin, Inc. v. Playtex Products, LLC, 2015 U.S. App. LEXIS 13424 (9th Cir. July 31, 2015): The district court also acted within its discretion when it determined that Munchkin failed to comply with its obligations under Fed. R. Civ. P. …
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Spoliation — In Diversity, Federal Law Governs Adverse Inference — Factors (8th Cir.) — Since a Purpose Is to Shift Burden to Spoliator, No Instruction Against Defendant’s Insurer Where Defendant Has Assigned Rights to Plaintiff

Burris v. Gulf Underwriters Ins. Co., 2015 U.S. App. LEXIS 8707 (8th Cir. May 27, 2015): Lowell and Joyce Burris (jointly "Burris") appeal the district court's1denial of their motion for a new trial following a jury verdict in favor of Gulf Underwriters Insurance Company ("Gulf"). We affirm. I. < ...
Burris v. Gulf Underwriters Ins. Co., 2015 U.S. App. LEXIS 8707 (8th Cir. May 27, 2015): Lowell and Joyce Burris (jointly "Burris") appeal the district court's1denial of their motion for a new trial following a jury verdict in favor of…
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Inherent Power Sanctions — Standards for Bad Faith Are Necessarily Stringent, and a Party Should Not Be Penalized for Maintaining an Aggressive Litigation Position (Good Quote) — How Frivolous Must an Argument Be to Suggest Bad Faith?

Fortune v. Taylor Fortune Grp, LLC, 2015 U.S. App. LEXIS 13788 (5th Cir. Aug. 4, 2015): We next consider Fortune Louisiana's motion for sanctions. "[F]ederal courts possess inherent power to assess attorney's fees and litigation costs when the losing party has 'acted in bad faith, vexatiously, wantonly ...
Fortune v. Taylor Fortune Grp, LLC, 2015 U.S. App. LEXIS 13788 (5th Cir. Aug. 4, 2015): We next consider Fortune Louisiana's motion for sanctions. "[F]ederal courts possess inherent power to assess attorney's fees and litigation costs when the losing party …
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RICO — More Than 2 Years = Substantial Period of Time & Satisfies Closed-Ended Continuity — Pattern Doesn’t Require Multiple Schemes As Long As the Predicate Acts Aren’t Isolated or Sporadic

Kearney v. Foley & Lardner, LLP, 2015 U.S. App. LEXIS 10279 (9th Cir. June 18, 2015): Plaintiff-Appellant Joan Brown Kearney appeals the district court's dismissal of her [*2]  42 U.S.C. § 1983; Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961, et seq. ("RICO"); and RICO conspir ...
Kearney v. Foley & Lardner, LLP, 2015 U.S. App. LEXIS 10279 (9th Cir. June 18, 2015): Plaintiff-Appellant Joan Brown Kearney appeals the district court's dismissal of her [*2]  42 U.S.C. § 1983; Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.…
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Texts Authenticated by Testimony Witness Used Cell No. Defendant Gave Her via Facebook, Where Number Verified as Defendant’s and Defendant Acted Per Messages — Facebook Account Authenticated by True Cell Number and Contents of FB Messages

Coe v. State, 2015 Tex. App. LEXIS 6374 & 6440 (Tex. Ct. App. June 24, 2015): Brandon Chadwick Coe appeals his convictions for online solicitation of a minor and attempted sexual assault of a child. See Tex. Penal Code Ann. §§ 15.01, 33.021(c) (West 2011). *** *** B. ...
Coe v. State, 2015 Tex. App. LEXIS 6374 & 6440 (Tex. Ct. App. June 24, 2015): Brandon Chadwick Coe appeals his convictions for online solicitation of a minor and attempted sexual assault of a child. See Tex. Penal Code Ann.…
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Judicial Notice of Internet Evidence — Factual Info on Governmental Website — Lawyers Don’t Act under Color of State Law within § 1983, Though Licensed & Officers of the Court, when Performing Traditional Lawyer Functions

Duncan v. Strickland, 2015 U.S. Dist. LEXIS 98863 (D.S.C. May 22, 2015): Both Defendants are public defenders in Colleton County1 and are not either a "person acting under color of state law" within the meaning of § 1983. See Deas v. Potts, 547 F.2d 800 (4th Cir. 1976) ("A (private) attorney ...
Duncan v. Strickland, 2015 U.S. Dist. LEXIS 98863 (D.S.C. May 22, 2015): Both Defendants are public defenders in Colleton County1 and are not either a "person acting under color of state law" within the meaning of § 1983. See Deas…
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Disqualification Motion Must Be Decided Before Reaching Merits of Dispositive Motion Because It Calls into Question the Integrity of the Process in Which Allegedly Disqualified Counsel Participates

Grimes v. District of Columbia, 2015 U.S. App. LEXIS 12534 (D.C. Cir. July 21, 2015): The district court erred in the sequence in which it rendered its decisions. Because a claim of counsel's conflict of interest calls into question the integrity of the process in which the allegedly conflicted counsel participates, the co ...
Grimes v. District of Columbia, 2015 U.S. App. LEXIS 12534 (D.C. Cir. July 21, 2015): The district court erred in the sequence in which it rendered its decisions. Because a claim of counsel's conflict of interest calls into question the …
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Inherent Power — Disbarment/Suspension — Clear and Convincing Evidence of Bad Faith Required — De Novo Review Whether Conduct Is Sanctionable, Abuse of Discretion As to Specific Sanction (5th Circuit)

In re Booker, 2015 U.S. App. LEXIS 13699 (5th Cir. Aug. 3, 2015): Robert Booker appeals the district court's order suspending him from the roll of attorneys admitted to practice in the United States District Court for the Eastern District of Texas (the "Eastern District") for a period of three years.
In re Booker, 2015 U.S. App. LEXIS 13699 (5th Cir. Aug. 3, 2015): Robert Booker appeals the district court's order suspending him from the roll of attorneys admitted to practice in the United States District Court for the Eastern District …
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Instagram Photos Authenticated by Fact Username & Password Needed, Same Photos on Alleged User’s Cell, User in Same Clothes As in Photos, with Same People — Captions = Hearsay — Cellebrite Software to Download Cell

In re KB, 2015 Cal. App. LEXIS 627 (Cal. Ct. App. July 20, 2015): On October 23, 2013, the San Francisco County District Attorney filed a petition charging appellant, age 17, with two counts of possessing firearms. (Pen. Code, § 29610.) On November 19, 2013, after a contested jurisdictional hearing, the juvenile court sustai ...
In re KB, 2015 Cal. App. LEXIS 627 (Cal. Ct. App. July 20, 2015): On October 23, 2013, the San Francisco County District Attorney filed a petition charging appellant, age 17, with two counts of possessing firearms. (Pen. Code, §…
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Does Contingent Fee Agreement with Expert Disqualify the Witness? — Caselaw Split — Sham Affidavit Rule Doesn’t Bar Affidavit Clarifying Ambiguous Deposition Testimony

Taylor v. Cottrell, Inc., 2015 U.S. App. LEXIS 13173 (8th Cir. July 29, 2015): Timmy A. Taylor ("Taylor") and Deborah Taylor brought this action to recover damages resulting from injuries Taylor sustained in two incidents involving a Cottrell, Inc. ("Cottrell") truck trailer. Upon Cottrell's motion in limine, t ...
Taylor v. Cottrell, Inc., 2015 U.S. App. LEXIS 13173 (8th Cir. July 29, 2015): Timmy A. Taylor ("Taylor") and Deborah Taylor brought this action to recover damages resulting from injuries Taylor sustained in two incidents involving a Cottrell, Inc. ("Cottrell")…
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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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