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

Digital Photos Automatically Taken by Red Light Traffic Camera Not Subject to Strict Authentication Requirements If Not Enhanced — Are Not Hearsay — Authentication Is Subset of Relevance: Purpose of Evidence Key to Authentication

People v. Goldsmith, 59 Cal. 4th 258, 326 P.3d 239 172 Cal. Rptr. 3d 637 (2014): Defendant was cited for failing to stop at a red traffic light at an intersection located in the City of Inglewood in violation of Vehicle Code section 21453. She was found guilty of the traffic infraction based on evidence of several pho ...
People v. Goldsmith, 59 Cal. 4th 258, 326 P.3d 239 172 Cal. Rptr. 3d 637 (2014): Defendant was cited for failing to stop at a red traffic light at an intersection located in the City of Inglewood in violation of …
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Arbitration — After Granting Motion to Compel, May Court Dismiss or Must It Enter a Stay? — Circuit Split — Second Circuit Holds Dismissal Improper, Confers Right to Appeal That Congress Withheld

Katz v. Cellco P’ship, DBA Verizon Wireless, 2015 U.S. App. LEXIS 13055 (2d Cir. July 28, 2015): In an effort to more efficiently manage their dockets, some district [*2]  courts in this Circuit will dismiss an action after having compelled arbitration pursuant to a binding arbitration agreement between the parties ...
Katz v. Cellco P’ship, DBA Verizon Wireless, 2015 U.S. App. LEXIS 13055 (2d Cir. July 28, 2015): In an effort to more efficiently manage their dockets, some district [*2]  courts in this Circuit will dismiss an action after having compelled …
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Appealability — Collateral Order Doctrine: Factors — Importance of Issue Critical — Types of Orders Within & Outside Doctrine — 1292(a)(1) Jurisdiction: Interpretation vs. Modification of Injunction (Only Latter Appealable)

In re Deepwater Horizon, 2015 U.S. App. LEXIS 12299 (5th Cir. July 15, 2015): In May 2012, BP Exploration & Production Inc. ("BP") and related entities reached a settlement with a class of individuals who suffered economic and property damage after the Deepwater Horizon incident. That settlement agreement establi ...
In re Deepwater Horizon, 2015 U.S. App. LEXIS 12299 (5th Cir. July 15, 2015): In May 2012, BP Exploration & Production Inc. ("BP") and related entities reached a settlement with a class of individuals who suffered economic and property damage …
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Spoliation — Cleaning Up Oily Substance on Which Plaintiff Fell May Support Sanction — Substance Relevant to Claim of Defendant Proprietor/Employer’s Negligence (FELA)

Coale v. Metro North Commuter RR, 2015 U.S. App. LEXIS 11990 (2d Cir. July 13, 2015): Plaintiff William Coale, a former assistant conductor for Metro-North Commuter Railroad Co. ("Metro-North"), appeals from an award of summary judgment in favor of defendant Metro-North on Coale's Federal Employers' Liability Act (&q ...
Coale v. Metro North Commuter RR, 2015 U.S. App. LEXIS 11990 (2d Cir. July 13, 2015): Plaintiff William Coale, a former assistant conductor for Metro-North Commuter Railroad Co. ("Metro-North"), appeals from an award of summary judgment in favor of defendant…
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Text Message Admissible as Spontaneous (Excited) Utterance (803(2)) — Speed with Which Texts Typed May Essentially = Verbalizing — More Texts Sent by Cell Than Voice Minutes Used — Spontaneity of Texts > Other Writings

Commonwealth v Mulgrave, 2015 Mass. LEXIS 472 (Sup. Jud. Court July 13, 2015): In March, 2012, a Superior Court jury convicted the defendant, Craig Mulgrave, of murder in the first degree on the theory of extreme atrocity or cruelty in the stabbing death of his wife, Christina Mulgrave.1 On appeal the defendant asserts that ...
Commonwealth v Mulgrave, 2015 Mass. LEXIS 472 (Sup. Jud. Court July 13, 2015): In March, 2012, a Superior Court jury convicted the defendant, Craig Mulgrave, of murder in the first degree on the theory of extreme atrocity or cruelty in…
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Complaints — A Primer on Shotgun Pleading — Rules 8(a)(2) and 10(b) — Extensive Case Citations on the Four Types of Impermissible Shotgun Pleading, Including Incorporating All Prior Allegations & Counts — Defendants’ Duties

Weiland v. Palm Beach Cnty. Sheriff’s Office, 2015 U.S. App. LEXIS 11750 (11th Cir. July 8, 2015): Nearly one hundred and thirty years ago, one of Georgia's greatest judges described the ideal in pleading:    Pleading is pure statement; just as much as a letter addressed to your sweetheart or ...
Weiland v. Palm Beach Cnty. Sheriff’s Office, 2015 U.S. App. LEXIS 11750 (11th Cir. July 8, 2015): Nearly one hundred and thirty years ago, one of Georgia's greatest judges described the ideal in pleading:    Pleading is pure statement; just as…
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Appeal of Denial of Intervention Not Mooted by Settlement of Action (Circuit Split) — RICO & Equitable Tolling (Extraordinary Remedy in 4th Cir.) — Dismissal of Identical Action No Excuse for Not Filing — Mental Impairment & Right to Hearing

CVLR Performance Horses, Inc. v. Marsh, 2015 U.S. App. LEXIS 11819 (4th Cir. July 9, 2015): In November 2013, Appellants Karen Foster and Vicki Marsh sought to intervene as plaintiffs in a civil RICO action brought by CVLR Performance Horses, Inc. against John Wynne and his businesses. The district court denied the motions, fi ...
CVLR Performance Horses, Inc. v. Marsh, 2015 U.S. App. LEXIS 11819 (4th Cir. July 9, 2015): In November 2013, Appellants Karen Foster and Vicki Marsh sought to intervene as plaintiffs in a civil RICO action brought by CVLR Performance Horses, …
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When Complaint Is Frivolous, Court May Decide 12(b)(6) Motion before 12(b)(1) (Subject Matter Jurisdiction) — Iqbal Improbability Tips into Frivolousness when Claims Are Sufficiently Fantastic as to Defy Reality (Good Quotes)

Guthrie v. U.S. Government, 2015 U.S. App. LEXIS 12248 (11th Cir. July 1, 2015): Plaintiff-appellant Randolph Guthrie ("Guthrie"), proceeding pro se, appeals the district court's dismissal of his pro se sixth amended complaint alleging 98 counts under the common law, Federal Tort Claims Act ("FTCA& ...
Guthrie v. U.S. Government, 2015 U.S. App. LEXIS 12248 (11th Cir. July 1, 2015): Plaintiff-appellant Randolph Guthrie ("Guthrie"), proceeding pro se, appeals the district court's dismissal of his pro se sixth amended complaint alleging 98 counts under the common law,…
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FRAP 38 and § 1927 — Appellate Sanctions “Can Be a Valuable Tool for Dissuading Knee-Jerk Appeals or Appeals Intended Simply to Delay Enforcement of Judgment” (Good Quote)

Weiner v. Original Talk Radio Network, Inc., 2015 U.S. App. LEXIS 12389 (9th Cir. July 17, 2015):  The Original Talk Radio Network, Inc. (OTRN) appeals the district court's confirmation of an arbitration panel's award in favor of Dr. Michael A. Weiner, known on-air as "Michael Savage" (Weiner). OTRN syndicated Weine ...
Weiner v. Original Talk Radio Network, Inc., 2015 U.S. App. LEXIS 12389 (9th Cir. July 17, 2015):  The Original Talk Radio Network, Inc. (OTRN) appeals the district court's confirmation of an arbitration panel's award in favor of Dr. Michael A.…
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Texts Authenticated by Defendant’s Admissions That He Frequently Exchanged Messages with Alleged Recipient and That He Owned Cell Phone to and from Which Texts Were Exchanged with Her

State v. Spaulding, 2015 W. Va. LEXIS 819 (W. Va. Sup. Ct. June 22, 2015): Petitioner John Daniel Spaulding, by counsel Harold B. Wolfe III, appeals the order of the Circuit Court of Mercer County, entered on June 23, 2014, denying his motion for a new trial and adjudging him guilty of three counts of first-degree sexual assault and f ...
State v. Spaulding, 2015 W. Va. LEXIS 819 (W. Va. Sup. Ct. June 22, 2015): Petitioner John Daniel Spaulding, by counsel Harold B. Wolfe III, appeals the order of the Circuit Court of Mercer County, entered on June 23, 2014,…
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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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