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 on Defendant’s Phone Requesting Cocaine Not Hearsay when Offered to Prove His State of Mind — That He Had Drugs in His Possession and Was Aware of a Forthcoming Shipment (Also: Verbal Act)

State v. Whitfield, 2015 S.D. LEXIS 45 (S.D. Sup. Ct. Apr. 1, 2015): 1. Text Messages  [*P12]  Whitfield argues that the two text messages from JKenny were inadmissible hearsay and the admission of the messages prejudiced him. The messages were hearsay, Whitfield contends, because the ...
State v. Whitfield, 2015 S.D. LEXIS 45 (S.D. Sup. Ct. Apr. 1, 2015): 1. Text Messages  [*P12]  Whitfield argues that the two text messages from JKenny were inadmissible hearsay and the admission of the messages prejudiced him. The messages were …
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What Constitutes “Appearing” in an Action? Under FDCPA, Attorney’s Fees Are Awardable to a Prevailing Plaintiff’s Lawyer Who Was Not Admitted Even Pro Hac If Lawyer Did Not Appear Physically, Sign Papers or Serve as Exclusive Contact

Waite v VCG Clark Cnty. Collection Serv., LLC, 2015 U.S. App. LEXIS 4934 (9th Cir. Mar. 26, 2015): A prevailing plaintiff in an FDCPA action is entitled to an award of reasonable attorneys' fees. 15 U.S.C. § 1692k(a)(3). Where, as here, one of the plaintiff's attorneys was not admitted to practice in the forum distric ...
Waite v VCG Clark Cnty. Collection Serv., LLC, 2015 U.S. App. LEXIS 4934 (9th Cir. Mar. 26, 2015): A prevailing plaintiff in an FDCPA action is entitled to an award of reasonable attorneys' fees. 15 U.S.C. § 1692k(a)(3). Where, as …
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Texts Authenticated: Phone in Defendant’s Possession on Arrest — He Answered It while Detained, Called It His — Name of Third Party He Said Owned It Was Named in Contact List while He Was Listed as “Me” — Contains Photos of Him

Jones v. State, 2015 Tex. App. LEXIS 3139 (Tex. Ct. App. Mar. 31, 2015): A. Authenticity of information from mobile telephone Jones frames his challenge to the admission of information from the phone as an issue of the evidence's authenticity. As a condition precedent to admissibility, the proponent of the ...
Jones v. State, 2015 Tex. App. LEXIS 3139 (Tex. Ct. App. Mar. 31, 2015): A. Authenticity of information from mobile telephone Jones frames his challenge to the admission of information from the phone as an issue of the evidence's authenticity.…
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RICO — Continuity — Duration of >1 Year in 7th Circuit — Number of Mailings May Be No Indication of Continuity of Underlying Fraudulent Activity — Only Predicates Count Toward, and Cover-Up Acts Don’t Extend, Duration (Good Quotes)

Goldring v. Regas, 2015 U.S. Dist. LEXIS 35552 (N.D. Ill. Mar. 20, 2015): Generally, the predicate acts underlying a "one-shot scheme" must occur over the course of more than a year in order to form a pattern. Midwest Grinding, 976 F.2d at 1024 (collecting cases where periods of "several months ...
Goldring v. Regas, 2015 U.S. Dist. LEXIS 35552 (N.D. Ill. Mar. 20, 2015): Generally, the predicate acts underlying a "one-shot scheme" must occur over the course of more than a year in order to form a pattern. Midwest Grinding,…
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Email Authentication — Custodian of Records from Email Service That Emails Were Sent or Received from 3 Addresses (803(6)) + Testimony from Recipients That They Received Them + Name of Sender as Reflected on Emails

United States v. Gal, 2015 U.S. App. LEXIS 4999 (9th Cir. Mar. 27, 2015): Carpenter argues that an affidavit filed by Yahoo! Inc.'s custodian of records under Rule 902(11) of the Federal Rules of Evidence supplied insufficient foundation to admit a number of emails as evidence that Carpenter sent the emails to investors. H ...
United States v. Gal, 2015 U.S. App. LEXIS 4999 (9th Cir. Mar. 27, 2015): Carpenter argues that an affidavit filed by Yahoo! Inc.'s custodian of records under Rule 902(11) of the Federal Rules of Evidence supplied insufficient foundation to admit …
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Judicial Notice of Internet Evidence — Private Business Website’s Discussion of Methods of Payment Accepted

Frankfort GGNSC Frankfort, LLC v. Tracy, 2015 U.S. Dist. LEXIS 41466 (E.D. Ky. Mar. 31, 2015): Doris Christopher, a former resident of the Golden Living Center facility in Frankfort, Kentucky, signed an arbitration agreement prior to moving into the facility. Sadly, Defendants allege that Ms. Christopher suffered physical and emotiona ...
Frankfort GGNSC Frankfort, LLC v. Tracy, 2015 U.S. Dist. LEXIS 41466 (E.D. Ky. Mar. 31, 2015): Doris Christopher, a former resident of the Golden Living Center facility in Frankfort, Kentucky, signed an arbitration agreement prior to moving into the facility.…
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§ 1927 Sanctions Awardable for Objectively Unreasonable Conduct Manifesting a Reckless Disregard of Counsel’s Duties to the Court (10th Circuit)

Biax Corp. v. Nvidia Corp., 2015 U.S. App. LEXIS 3082 (Fed. Cir. Feb. 24, 2015): In addition to asking for fees under 35 U.S.C. § 285, the defendants also asked for fees from Dorsey under 28 U.S.C. § 1927. Section 1927 provides: Any attorney or other person admitted to conduct cases in any court of ...
Biax Corp. v. Nvidia Corp., 2015 U.S. App. LEXIS 3082 (Fed. Cir. Feb. 24, 2015): In addition to asking for fees under 35 U.S.C. § 285, the defendants also asked for fees from Dorsey under 28 U.S.C. § 1927. Section…
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2010 Expert Witness Amendments — Communications between Testifying Expert & Party Representative Unprotected — Suggestion That Communications with Consulting Expert Subject to “Exceptional Circumstances” Standard Despite Circuit Decisions

Whole Women’s Health v. Lakey, 301 F.R.D. 266 (W.D. Tex 2014): Before the Court are Plaintiffs' Motion to Compel Disclosure of Written Communications between Vincent Rue and Defendants' Experts [**3]  (Dkt. No. 115); State Defendants' Response in Opposition (Dkt. No. 124); and Plaintiffs' Reply (Dkt ...
Whole Women’s Health v. Lakey, 301 F.R.D. 266 (W.D. Tex 2014): Before the Court are Plaintiffs' Motion to Compel Disclosure of Written Communications between Vincent Rue and Defendants' Experts [**3]  (Dkt. No. 115); State Defendants' Response in Opposition (Dkt. No.…
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Sanctions — Deposition Misconduct — Recidivism as Evidence of Willfulness, Requiring Harsher Sanction — Insults, Directing Witness How to Answer Improper — Zealous Advocacy No Defense (Good Quotes)

Howard v. Offshore Liftboats, LLC, 2015 U.S. Dist. LEXIS 26629 (E.D. La. Mar. 4, 2015): Before me is a Motion for Costs and Sanctions brought against Defendant, Offshore Liftboats, LLC ("OLB") by Plaintiff, Calvin Howard. (Rec. doc. 178). OLB has filed an Opposition to that Motion (rec. doc. 184) and, on February 25, 2105, I ...
Howard v. Offshore Liftboats, LLC, 2015 U.S. Dist. LEXIS 26629 (E.D. La. Mar. 4, 2015): Before me is a Motion for Costs and Sanctions brought against Defendant, Offshore Liftboats, LLC ("OLB") by Plaintiff, Calvin Howard. (Rec. doc. 178). OLB has…
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Website and Email Authentication — Direct, Circumstantial and Forensic Authentication Techniques

O’Connor v. Newport Hosp., 2015 R.I. LEXIS 35 (R.I. Sup. Ct. Mar. 17, 2015): a. Web Pages Exhibits A and B consist of printouts of web pages purportedly printed from the ABEM website. One commentary on Rule 901 of the Federal Rules of Evidence, which essentially mirrors Rule 901 of the Rhode Island Rules of E ...
O’Connor v. Newport Hosp., 2015 R.I. LEXIS 35 (R.I. Sup. Ct. Mar. 17, 2015): a. Web Pages Exhibits A and B consist of printouts of web pages purportedly printed from the ABEM website. One commentary on Rule 901 of the…
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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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