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

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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Post-Dismissal So-Ordering of Settlement Agreement Ineffective to Retain Jurisdiction — Court Must Incorporate Settlement in an Order or Expressly Retain Jurisdiction — Rule 60(b) Fix? — Otherwise, Court of Claims If vs. US

Hendrickson v. United States, 2015 U.S. App. LEXIS 11186 (2d Cir. June 30, 2015): This appeal arises from an attempt to enforce a settlement agreement signed by Plaintiffs-Appellees William and Patricia Hendrickson, the United States, and the district court more than thirty years ago. In 1985, the district court clearly indicated its ...
Hendrickson v. United States, 2015 U.S. App. LEXIS 11186 (2d Cir. June 30, 2015): This appeal arises from an attempt to enforce a settlement agreement signed by Plaintiffs-Appellees William and Patricia Hendrickson, the United States, and the district court more…
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Inherent Power Sanctions — $2.7 Million in Fees for Discovery Abuse: Withholding Test Results Absent Order Compelling Production — Is Award Compensatory If Not Strictly Linked to Misconduct? (Due Process) — Divided 9th Cir. Panel

Haeger v. Goodyear Tire & Rubber Co., 2015 U.S. App. LEXIS 12484 (9th Cir. July 20, 2015) [Note: Opinion updated in 2016 - 813 F3d 1233 (9th Cir. 2016)]: On November 8, 2012, after a six-hour evidentiary hearing, and after considering the record in the case and fifteen briefs filed by the potentially-sanctionable part ...
Haeger v. Goodyear Tire & Rubber Co., 2015 U.S. App. LEXIS 12484 (9th Cir. July 20, 2015) [Note: Opinion updated in 2016 – 813 F3d 1233 (9th Cir. 2016)]: On November 8, 2012, after a six-hour evidentiary hearing, and after …
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Opinions in Expert Report Attached to Complaint Disregarded on Dismissal Motion — RICO: Difficulties Pleading Wage Depression Due to Hiring of Undocumented Workers: Defining Market, Alleging Injury

Varela v. Gonzales, 2014 U.S. App. LEXIS 23293 (5th Cir. Dec. 11, 2014): Appellants Jaime Varela and Yesica Wiegert bring this civil action alleging RICO violations against their former employers, Appellees David Benitez Gonzales, Ana Cristina Benitez, Intelligent Mexican Marketing, Inc., and Marketing and Inventory Management ...
Varela v. Gonzales, 2014 U.S. App. LEXIS 23293 (5th Cir. Dec. 11, 2014): Appellants Jaime Varela and Yesica Wiegert bring this civil action alleging RICO violations against their former employers, Appellees David Benitez Gonzales, Ana Cristina Benitez, Intelligent Mexican Marketing, …
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Sanctions — Resort to Inherent Power Error Where Rule 11 Applies — Complaint Barred by Settlement Agreement Violates Rule 11 — Failure to Comply with Safe Harbor Forgiven on Theory of Substantial Compliance

United States v. Rogers Cartage Co., 2015 U.S. App. LEXIS 12927 (7th Cir. July 27, 2015): The villages of Sauget and Cahokia, Illinois, located along the east bank of the Mississippi River just south of East St. Louis, are home to a three-and-a half-mile storm water conveyance channel known as Dead Creek. The name is morbid, but fitti ...
United States v. Rogers Cartage Co., 2015 U.S. App. LEXIS 12927 (7th Cir. July 27, 2015): The villages of Sauget and Cahokia, Illinois, located along the east bank of the Mississippi River just south of East St. Louis, are home…
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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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