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

Spoliation — Erroneous Adverse Inference Instruction Limited to Damages Does Not Require New Trial on Liability or on Unaffected Damages Award

Blue Sky Travel and Tours, LLC v. Aqeel, 2015 U.S. App. LEXIS 5166 (4th Cir. Mar. 31, 2015): In this appeal concerning the breach of an oral contract, we consider whether the district court erred in denying the defendants' motion for judgment as a matter of law asserting a defense of the statute of frauds. We also consider
Blue Sky Travel and Tours, LLC v. Aqeel, 2015 U.S. App. LEXIS 5166 (4th Cir. Mar. 31, 2015): In this appeal concerning the breach of an oral contract, we consider whether the district court erred in denying the defendants' motion…
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Judicial Notice of Internet Evidence — Noticing Other Court’s Records on 12(b)(6) Motion Doesn’t Convert It to Motion for Summary Judgment — Res Judicata Affirmative Defense Testable on 12(b)(6)

Busby v. Bank of Am., N.A., 2015 U.S. Dist. LEXIS 44223 (S.D. Ohio April 3, 2015): Plaintiff alleges that she is the record owner of a residential property at 251 Trumpet Drive, West Carrollton, Ohio, which is her primary home. Id. at PageID 2, ¶¶ 4-5. The Complaint contains a lengthy section labeled Factual Allegations whi ...
Busby v. Bank of Am., N.A., 2015 U.S. Dist. LEXIS 44223 (S.D. Ohio April 3, 2015): Plaintiff alleges that she is the record owner of a residential property at 251 Trumpet Drive, West Carrollton, Ohio, which is her primary home.…
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Circumstantial Twitter Authentication: Witness Testifies She Often Communicated with Defendant on Account, That It Showed Photos of Defendant and Her, Used Terms Often Used by Defendant and Had Photo of Guns Allegedly Used in Crime

Wilson v. State, 2015 Ind. App. LEXIS 378 (Ind. Ct. App. April 30, 2015): [1] On March of 2013, Jonte Crawford and Appellant-Defendant Donnell Wilson shot and killed two rival gang members. During Wilson's trial, the trial court allowed Appellee-Plaintiff the State of Indiana to enter into evidence several Twitter posts al ...
Wilson v. State, 2015 Ind. App. LEXIS 378 (Ind. Ct. App. April 30, 2015): [1] On March of 2013, Jonte Crawford and Appellant-Defendant Donnell Wilson shot and killed two rival gang members. During Wilson's trial, the trial court allowed Appellee-Plaintiff …
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Does the Federal Transfer Statute, 28 U.S.C. § 1631, Apply to Defects in Personal Jurisdiction? Circuit Split — Factors under § 1631 — Transfer Is Normally in the Interests of Justice within the Statute

Cabell v. Zorro Productions, Inc., 2015 U.S. Dist. LEXIS 12845 (W.D. Wash. Feb. 3, 2015): This matter comes before the Court upon Plaintiff Robert W. Cabell's Motion for Partial Reconsideration (Dkt. # 73). Pursuant to Local Civil Rule 7(h), Plaintiff requests reconsideration in part of the Court's Order Granting Defendants ...
Cabell v. Zorro Productions, Inc., 2015 U.S. Dist. LEXIS 12845 (W.D. Wash. Feb. 3, 2015): This matter comes before the Court upon Plaintiff Robert W. Cabell's Motion for Partial Reconsideration (Dkt. # 73). Pursuant to Local Civil Rule 7(h), Plaintiff…
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Disqualification Orders in Civil Cases, as in Criminal Cases, Are Not Appealable as Collateral Orders — May Be Challenged on Appeal from Final Judgment

Guzall v. United States, 2015 U.S. App. LEXIS 6080 (6th Cir. Jan. 30, 2015): On October 9, 2014, the district court granted the defendants' motion to disqualify the plaintiff's counsel in this action under the False Claims Act, 31 U.S.C. § 3729, and the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C ...
Guzall v. United States, 2015 U.S. App. LEXIS 6080 (6th Cir. Jan. 30, 2015): On October 9, 2014, the district court granted the defendants' motion to disqualify the plaintiff's counsel in this action under the False Claims Act, 31 U.S.C.…
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Judicial Notice of Internet Evidence — Government’s Agreement with National Bank as Posted on Government Website Noticed for Its Terms

Lawrence v. Fed. Home Loan Mortg. Corp., 2015 U.S. Dist. LEXIS 40012 (W.D. Tex. Mar. 30, 2015): A.  Standard of Review For Motion for Summary Judgment Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure only "if the movant shows there is no genuine disput ...
Lawrence v. Fed. Home Loan Mortg. Corp., 2015 U.S. Dist. LEXIS 40012 (W.D. Tex. Mar. 30, 2015): A.  Standard of Review For Motion for Summary Judgment Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure…
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Rule 11 — Court May Not Collect and Turn over Damages Owed to a Party Via Sanctions, Just as It Cannot Impose Tort Damages as a Sanction — District Court Cannot Become Collection Agency (Good Quote)

Universitas Educ., LLC v. Nova Grp., Inc., 2015 U.S. App. LEXIS 6436 (2d Cir. April 20, 2015): Nova Group, Inc. appeals from the September 30, 2013 memorandum and order and the December 18, 2014 order of the United States District Court for the Southern District of New York (Swain, J.) sanctioning Nova by requiring it to depo ...
Universitas Educ., LLC v. Nova Grp., Inc., 2015 U.S. App. LEXIS 6436 (2d Cir. April 20, 2015): Nova Group, Inc. appeals from the September 30, 2013 memorandum and order and the December 18, 2014 order of the United States District…
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RICO Extraterritoriality — The Debate on Rehearing RJR En Banc in the Second Circuit — Denial of En Banc Review Doesn’t Mean Case Lacks Significance or Is Correctly Decided (Good Quote)

European Community v. RJR Nabisco, Inc., 2015 U.S. App. LEXIS 5991 (2d Cir. April 13, 2015): ORDER Following disposition of this appeal, an active judge of the Court requested a poll on whether to rehear the case en banc. A poll having been conducted and there being no majority favoring en banc review, rehearin ...
European Community v. RJR Nabisco, Inc., 2015 U.S. App. LEXIS 5991 (2d Cir. April 13, 2015): ORDER Following disposition of this appeal, an active judge of the Court requested a poll on whether to rehear the case en banc. A…
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Texts and Emails Authenticated as Sender’s by Testimony from Recipient Plus Messages’ Tone, Syntax, Appearance, Personal Subject Matter (Child’s Baptism, Shopping, Chores) and Plans Made (Meeting for Coffee, Lunch)

Smith v. Smith, 2015 Ala. Civ. App. LEXIS 72 (Ala. Ct. Civ. App. Apr. 3, 2015): Shannon Wilkinson Smith ("the mother") appeals from a June 30, 2014, judgment of the Mobile Circuit Court ("the trial court") modifying the custody arrangement established in a previous judgment divorcing Justin Randall Smith ("the ...
Smith v. Smith, 2015 Ala. Civ. App. LEXIS 72 (Ala. Ct. Civ. App. Apr. 3, 2015): Shannon Wilkinson Smith ("the mother") appeals from a June 30, 2014, judgment of the Mobile Circuit Court ("the trial court") modifying the custody arrangement…
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Federal Jurisdiction — Diversity — Measuring the Value of Sought Injunctive Relief — Circuit Split — Statutory Claim for Attorney’s Fees May Be Considered for Amount in Controversy Purposes

Heartland of Urban, OH, LLC v. McHugh Fuller Law Grp., PLLC, 2015 U.S. Dist. LEXIS 46059 (S.D. Ohio April 8, 2015): This matter is before the Court on Plaintiff's Motion for Remand. Doc. # 6. The action was originally filed in the Champaign County Court of Common Pleas. On January 6, 2015 , Defendant removed the action to this Cou ...
Heartland of Urban, OH, LLC v. McHugh Fuller Law Grp., PLLC, 2015 U.S. Dist. LEXIS 46059 (S.D. Ohio April 8, 2015): This matter is before the Court on Plaintiff's Motion for Remand. Doc. # 6. The action was originally filed…
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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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