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

Are Pro Se Pleadings of Ex-Attorneys Construed Liberally? — Shotgun Complaint, in Which Each Count Incorporates All Prior Allegations without Clarity, Violates Rules 10(b) and 8 — RICO Fraud Subject to 9(b)

Joseph v. Bernstein, 2015 U.S. App. LEXIS 7777 (11th Cir. May 12, 2015): Joel D. Joseph, proceeding pro se, appeals the district court's order dismissing his complaint filed pursuant to the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1962, 1964; the Florida Unfair Insurance Trade Practices Act (UITPA) ...
Joseph v. Bernstein, 2015 U.S. App. LEXIS 7777 (11th Cir. May 12, 2015): Joel D. Joseph, proceeding pro se, appeals the district court's order dismissing his complaint filed pursuant to the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.…
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Federal Question Jurisdiction Where State Claim Incorporates a Federal Standard As a Necessary Element of the Claim — Grable & Merrell Dow

Fen v. Philips Elecs. N. Am., 2015 U.S. Dist. LEXIS 18342 (E.D. Ky. Feb. 13, 2015): District courts "have original jurisdiction of all civil actions arising [*9]  under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331 (emphasis added). A claim is said t ...
Fen v. Philips Elecs. N. Am., 2015 U.S. Dist. LEXIS 18342 (E.D. Ky. Feb. 13, 2015): District courts "have original jurisdiction of all civil actions arising [*9]  under the Constitution, laws, or treaties of the United States." 28 U.S.C. §…
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Wayback Machine Authentication — Dates Assigned to Archived Pages May Not Apply to Images Linked to Them — Links on Archived Pages May Direct to Live Web If Old Link Unavailable

United States ex rel. Oliver v. Philip Morris USA, Inc., 2015 U.S. Dist. LEXIS 56655 (D.D.C. April 30, 2015): The plaintiff/relator in this case, Anthony Oliver ("Oliver"), brings suit against Philip Morris USA Inc. ("Defendant") pursuant to the False Claims Act (the "FCA"), 31 U.S.C. §§ 3729 et seq ...
United States ex rel. Oliver v. Philip Morris USA, Inc., 2015 U.S. Dist. LEXIS 56655 (D.D.C. April 30, 2015): The plaintiff/relator in this case, Anthony Oliver ("Oliver"), brings suit against Philip Morris USA Inc. ("Defendant") pursuant to the False Claims…
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Facebook Chats — Authentication — Defendant Admits Account Is His; Chats Appear on His Hard Drive and Bear the His Facebook Account Information — Email Authenticated As Defendant’s by Need for Password to Log into His Account

State v Burns, 2015 Tenn. Crim. App. LEXIS 325 (Tenn. Ct. App. May 5, 2015): Vermaine M . Burns ("the Defendant") was convicted of several sexual offenses, all stemming from illicit Facebook chats ("chats") and emails between himself and the victim, K.P. On appeal, the Defendant raises three issues: (1) whether the ...
State v Burns, 2015 Tenn. Crim. App. LEXIS 325 (Tenn. Ct. App. May 5, 2015): Vermaine M . Burns ("the Defendant") was convicted of several sexual offenses, all stemming from illicit Facebook chats ("chats") and emails between himself and the…
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Judicial Notice of Internet Evidence — Courts Routinely Take Notice of Contents of Wayback Machine

Under a Foot Plant Co. v. Exterior Design, Inc., 2015 U.S. Dist. LEXIS 38190 (D. Md. Mar. 25, 2015): Plaintiff requests judicial notice of an archived printout from defendant's website, which was generated by The Internet Archive on November 30, 2010. This printout describes the shipping services provided by defendant. Acc ...
Under a Foot Plant Co. v. Exterior Design, Inc., 2015 U.S. Dist. LEXIS 38190 (D. Md. Mar. 25, 2015): Plaintiff requests judicial notice of an archived printout from defendant's website, which was generated by The Internet Archive on November 30, …
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Facebook Authentication — Third Party Posts Must Be Authenticated by More Than the Names of the Purported Authors Reflected on Each Posting

Dering v. State, 2015 Tex. App. LEXIS 2899 (Tex. Ct. App. Mar. 26, 2015): Taylor Dwayne Dering was indicted for aggravated sexual assault of an elderly person. See Tex. Penal Code Ann. § 22.021(a)(1)(A)(i) (West Supp. 2014). Appellant pleaded guilty to the offense and elected for the jury to assess punishment. The j ...
Dering v. State, 2015 Tex. App. LEXIS 2899 (Tex. Ct. App. Mar. 26, 2015): Taylor Dwayne Dering was indicted for aggravated sexual assault of an elderly person. See Tex. Penal Code Ann. § 22.021(a)(1)(A)(i) (West Supp. 2014). Appellant pleaded guilty…
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Facebook Authentication by Use of Street Names; Gang Terms, Photos, Artwork & Signs on Public Page +Similar Content on Private Pages & Circumstantial Evid — Music Downloaded from Sound Cloud Not Tied to Defendant or Gang Improperly Admitted for Truth

State v Gibson, 2015 Ohio App. LEXIS 1614 (Ohio Ct. App. May 1, 2015): {¶ 32} In his second assignment of error, appellant states: The trial court erred in allowing the introduction of prejudicial evidence by the state without the establishment of a proper foundation. A ...
State v Gibson, 2015 Ohio App. LEXIS 1614 (Ohio Ct. App. May 1, 2015): {¶ 32} In his second assignment of error, appellant states: The trial court erred in allowing the introduction of prejudicial evidence by the state without the…
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Video Authentication — Surveillance Video Not Self-Authenticating, Particularly When Edited, Blurry and Shot from Significant Distance — Rule 59 Standards re Erroneous Evidentiary Ruling — Remittitur Standards

Leo v. L.I. RR, 2015 U.S. Dist. LEXIS 56953 (S.D.N.Y. April 30, 2015): Plaintiff Brian Leo commenced this lawsuit under the Federal Employers Liability Act ("FELA"), 45 U.S.C. § 51 et seq., seeking recovery for physical and other injuries suffered while employed by the defendant Long Island Railroad Company ("LIRR" ...
Leo v. L.I. RR, 2015 U.S. Dist. LEXIS 56953 (S.D.N.Y. April 30, 2015): Plaintiff Brian Leo commenced this lawsuit under the Federal Employers Liability Act ("FELA"), 45 U.S.C. § 51 et seq., seeking recovery for physical and other injuries suffered…
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Judicial Notice of Internet Evidence — Secretary of State Website Records — When Public Records Are Presumed Authentic and Trustworthy, Burden of Showing a Basis for Exclusion Falls on Opponent of the Evidence

Bank of Am., N.A. v. 04, Inc. (In re Owner Mgmt. Serv., LLC), 2015 Bankr. LEXIS 1468 (Bankr. C.D. Cal. April 29, 2015): Well-settled Ninth Circuit precedent specifically deals with evidentiary objections at the summary judgment stage. In general, at the summary [*11]  judgment stage, the Court does not focus on the admissibil ...
Bank of Am., N.A. v. 04, Inc. (In re Owner Mgmt. Serv., LLC), 2015 Bankr. LEXIS 1468 (Bankr. C.D. Cal. April 29, 2015): Well-settled Ninth Circuit precedent specifically deals with evidentiary objections at the summary judgment stage. In general, at …
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Text Messages Insufficiently Authenticated by Testimony That Proponent Identified Owner of Phone from Which Texts Were Sent at an Uncertain Later Time and That He Couldn’t Recall How He Accessed or Copied the Messages

Barker v. Computer Sci. Corp., 2015 U.S. Dist. LEXIS 39994 (E.D. Va. Mar. 27, 2015): Plaintiff Damien Barker ("Plaintiff" or "Barker") began his employment with Computer Science Corporation ("CSC") in February 2011 as a systems analyst. (Dkt. No. 77-6 at 2-3). In this position, he provided technical suppo ...
Barker v. Computer Sci. Corp., 2015 U.S. Dist. LEXIS 39994 (E.D. Va. Mar. 27, 2015): Plaintiff Damien Barker ("Plaintiff" or "Barker") began his employment with Computer Science Corporation ("CSC") in February 2011 as a systems analyst. (Dkt. No. 77-6 at…
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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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