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

No Spoliation Unless Person Was on Notice That Evidence Was Potentially Relevant to Litigation Before It Was Destroyed

Salas v. Independent Elec. Contractors Inc., 2015 U.S. App. LEXIS 7957 (9th Cir. May 14, 2015): 7.  The district court's finding of no spoliation is not clearly erroneous. Salas made no showing that IES or IEC destroyed [*4]  evidence, much less that they engaged in such destruction because the evidence was potentially relevant t ...
Salas v. Independent Elec. Contractors Inc., 2015 U.S. App. LEXIS 7957 (9th Cir. May 14, 2015): 7.  The district court's finding of no spoliation is not clearly erroneous. Salas made no showing that IES or IEC destroyed [*4]  evidence, much…
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Judicial Notice of Internet Evidence — Party’s Website — to Determine Personal Jurisdiction — Corporate Website’s Listing of Locations Presumptively Accurate

Allphin v. Peter K. Fitness, LLC, 2014 U.S. Dist. LEXIS 171711 (N.D. Cal. Dec. 11, 2014): This case arises out of a strict products liability claim by Plaintiff, who contends she was injured while using a defective fitness band. Presently before the Court is a motion brought by third-party and cross-claim defendant Ideal Jacobs (Malay ...
Allphin v. Peter K. Fitness, LLC, 2014 U.S. Dist. LEXIS 171711 (N.D. Cal. Dec. 11, 2014): This case arises out of a strict products liability claim by Plaintiff, who contends she was injured while using a defective fitness band. Presently…
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Facebook Messages Linked to Defendant by Showing That Account Is Registered to His Email Address & Used Screen Name Associated with Him, and Messages Included Self-Identification and Use of His Nickname — Thus All = Admissions

United States v. Brinson, 772 F.3d 1314 (10th Cir. 2014): Mr. Tarran Brinson was charged with various offenses involving trafficking in child prostitution. At trial, the prosecutor presented expert testimony on the operation of child prostitution rings, testimony by three men who had sex with a prostitute, and evidence consisting of e ...
United States v. Brinson, 772 F.3d 1314 (10th Cir. 2014): Mr. Tarran Brinson was charged with various offenses involving trafficking in child prostitution. At trial, the prosecutor presented expert testimony on the operation of child prostitution rings, testimony by three…
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Judicial Notice of Internet Evidence — Notice of Report of Citizens Commission Appointed by L.A. County Board of Commissioners As Downloaded from County Website, Bearing County Seal — Not Hearsay Per 803(8)

Shorter v. Baca, 2015 U.S. Dist. LEXIS 53019 (C.D. Cal. April 21, 2015): This case arises from the alleged mistreatment of Plaintiff Lecia Shorter, while incarcerated [*2]  for a 32-day period as a pretrial detainee. While in the County's custody, Shorter alleges that Defendants denied her needed medical care, su ...
Shorter v. Baca, 2015 U.S. Dist. LEXIS 53019 (C.D. Cal. April 21, 2015): This case arises from the alleged mistreatment of Plaintiff Lecia Shorter, while incarcerated [*2]  for a 32-day period as a pretrial detainee. While in the County's custody,…
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Removal — Is It Sufficient If One Defendant’s Timely Removal Notice States That All Others Consent? — Circuit Split — Rule 11 As Reason to Permit Removal on This Basis — Failure to Object ≠ Consent

Griffioen v. Cedar Rapids & Ioaw City Rwy., 2015 U.S. App. LEXIS 7528 (8th Cir. May 7, 2015): I. The Griffioen Group brought a putative class action in Iowa state court against Union Pacific, Cedar Rapids and Iowa City Railway Co. and Alliant Energy Corp. (collectively, CRANDIC), and ten additional defe ...
Griffioen v. Cedar Rapids & Ioaw City Rwy., 2015 U.S. App. LEXIS 7528 (8th Cir. May 7, 2015): I. The Griffioen Group brought a putative class action in Iowa state court against Union Pacific, Cedar Rapids and Iowa City Railway …
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Experts — Untimely Supplemental Report Harmless Where Expert Deposed on Subject Matter Before It Issued & Opponent Didn’t Request Another Dep — Judicial Notice of Internet Evidence — No Error in Refusing to Notice Google Maps Printout

Jackson v. Allstate Ins. Co., 2015 U.S. App. LEXIS 7529 (8th Cir. May 7, 2015): After a fire of incendiary origin destroyed her house, Patricia Jackson sued Allstate Insurance Company for denying her claim on a homeowner's insurance policy. Allstate asserted that Jackson's coverage was void because she burned the house or caus ...
Jackson v. Allstate Ins. Co., 2015 U.S. App. LEXIS 7529 (8th Cir. May 7, 2015): After a fire of incendiary origin destroyed her house, Patricia Jackson sued Allstate Insurance Company for denying her claim on a homeowner's insurance policy. Allstate…
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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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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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