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

Email Authentication — Confirming Circumstances Beyond Sender’s Self-Identification Needed, Suffice to Authenticate Electronic Communications — Voicemails from Sender with Same Contents Plus The From Line of Email Suffice

Commonwealth v. Czubinski, 2015 Mass. App. Unpub. LEXIS 191 (Mass. Ct. App. Mar. 16, 2015): Following a jury trial in the District Court, the defendant, Theresa Czubinski, was convicted of one count of criminal harassment. She appeals, claiming error in the judge's reasonable doubt instruction and in the improper admission ...
Commonwealth v. Czubinski, 2015 Mass. App. Unpub. LEXIS 191 (Mass. Ct. App. Mar. 16, 2015): Following a jury trial in the District Court, the defendant, Theresa Czubinski, was convicted of one count of criminal harassment. She appeals, claiming error in …
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Judicial Notice of Internet Evidence — No Judicial Notice of Website of Governmental Party Stating Fact Inconsistent With All Evidence before the Government Entity and Contrary to Its Own Findings of Fact (Website as Evidence Creator?)

Spokane Cnty. v. E. Wash. Growth Mgmt. Hearings Board, 2015 Wash. App. LEXIS 755 (Wash. Ct. App. April 9, 2015): We address once again the compliance of Spokane County with Washington's intractable Growth Management Act (GMA), chapter 36.70A RCW, this time in the context of a comprehensive plan amendment that rezoned a pa ...
Spokane Cnty. v. E. Wash. Growth Mgmt. Hearings Board, 2015 Wash. App. LEXIS 755 (Wash. Ct. App. April 9, 2015): We address once again the compliance of Spokane County with Washington's intractable Growth Management Act (GMA), chapter 36.70A RCW, this…
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Diversity Jurisdiction — Last Domicile Not Lost until New One Acquired — Domicile Not Lost by Forcible Change in State of Residence — Meaning of Abuse of Discretion (6th Circuit)

Pitt Excavating, LLC v. Pitt, 2015 U.S. App. LEXIS 3044 (6th Cir. Feb. 25, 2015): This case concerns the question of whether a person's domicile is his new Tennessee apartment or his old Kentucky home. Plaintiff-Appellant Pitt Excavating, LLC (Pitt Excavating), a Tennessee limited-liability company, filed this act ...
Pitt Excavating, LLC v. Pitt, 2015 U.S. App. LEXIS 3044 (6th Cir. Feb. 25, 2015): This case concerns the question of whether a person's domicile is his new Tennessee apartment or his old Kentucky home. Plaintiff-Appellant Pitt Excavating, LLC…
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Lawyer Representing Fiduciary Does Not Also Represent, Or Owe Fiduciary Duty to, Beneficiaries — Third Party Beneficiary Argument Not Reached — Lawyer for Personal Representative Not Disqualified from Being Adverse to Beneficiaries

Bain v. McIntosh, 2015 U.S. App. LEXIS 3116 (11th Cir. Mar. 2, 2015): Howard Walther and Dorothy B. Walther (collectively, the Walthers), the beneficiaries of the James Walther Revocable Life Insurance Trust (the Trust), appeal the district court's order granting summary judgment in favor of Steven Kane, Esq. and Kane and Koltun, ...
Bain v. McIntosh, 2015 U.S. App. LEXIS 3116 (11th Cir. Mar. 2, 2015): Howard Walther and Dorothy B. Walther (collectively, the Walthers), the beneficiaries of the James Walther Revocable Life Insurance Trust (the Trust), appeal the district court's order granting…
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Sanctions under Rule 11 and § 1927 Reviewed for Abuse of Discretion But Invocation of Inherent Power Reviewed De Novo, Factual Findings for Clear Error — Ct. App. Can Ignore Rule 11 and 1927 If Inherent Power Sanctions OK — FRAP 38 Standard

Meyers v. Textron Fin’l Corp., 2015 U.S. App. LEXIS 5736 (5th Cir. April 9, 2015): Following a two-day show-cause hearing, the court imposed sanctions, jointly and severally, against the Meyerses and Cole for their conduct in the RMC case and the sanctions action. In a thirty-six page opinion, the court awarded Textron $79,424.21 (l ...
Meyers v. Textron Fin’l Corp., 2015 U.S. App. LEXIS 5736 (5th Cir. April 9, 2015): Following a two-day show-cause hearing, the court imposed sanctions, jointly and severally, against the Meyerses and Cole for their conduct in the RMC case and…
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Federal Jurisdiction — Principal Place of Business of an Inactive Corporation — Circuit Split

Snyder v. Advanced Academics, Inc., 2015 U.S. Dist. LEXIS 44014 (W.D. Okla. April 3, 2015): A. Circuit Split: Principal Place of Business of an Inactive Corporation There is a split among the circuits on the issue of how to determine the PPB of a "dissolved" or "inactive" corporation ...
Snyder v. Advanced Academics, Inc., 2015 U.S. Dist. LEXIS 44014 (W.D. Okla. April 3, 2015): A. Circuit Split: Principal Place of Business of an Inactive Corporation There is a split among the circuits on the issue of how to determine …
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Email Authentication by Distinctive Characteristics: Names of Parties & Other Employees of Involved Entities, Email Addresses, Dates — Summary Charts: 4-Factor Test & Instruction

United States v. Hoffman, 2015 U.S. Dist. LEXIS 42818 (E.D. La. April 1, 2015): Before the Court are two motions: (1) the United States' motion in limine for pretrial determination of admissibility [*2]  of emails; and (2) the United States' motion to admit summary witness testimony and summary exhibits. For the rea ...
United States v. Hoffman, 2015 U.S. Dist. LEXIS 42818 (E.D. La. April 1, 2015): Before the Court are two motions: (1) the United States' motion in limine for pretrial determination of admissibility [*2]  of emails; and (2) the United States'…
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Website Authenticated by Affidavits of Persons Who Accessed Pages Plus Contents of Printouts — Instagram Comments Relevant for Use of Allegedly Generic Term Regardless of Truth of Commenter’s Attitude Toward Term

Camowraps, LLC v. Quantum Digital Ventures LLC, 2015 U.S. Dist. LEXIS 16091 (E.D. La. Feb. 10, 2015): Plaintiff, Camowraps, LLC ("Camowraps"), is "a leader in the business of manufacturing, selling, and distributing adhesive vinyl films and products," "which are often sold in camouflage patterns . . . [and] us ...
Camowraps, LLC v. Quantum Digital Ventures LLC, 2015 U.S. Dist. LEXIS 16091 (E.D. La. Feb. 10, 2015): Plaintiff, Camowraps, LLC ("Camowraps"), is "a leader in the business of manufacturing, selling, and distributing adhesive vinyl films and products," "which are often…
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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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Recent Posts

Rule 41(b): Five Factors to Be Weighed in Deciding Whether Dismissal Is Appropriate (Second Circuit) — Is A Finding of Bad Faith or Fault Required if Dismissal Is Without Prejudice? — Undecided If Truly Without Prejudice But It Is Required If the Without Prejudice Dismissal Will Act as a Dismissal on the Merits (Here, Because of the Statute of Limitations) — Failure To Consider A Lesser Sanction Than Dismissal Is Generally An Abuse Of Discretion

Spoliation Sanctions/Mootness: Stipulation Resolving “All Pending Discovery Disputes,” Which Are Enumerated, Does Not Moot Subsequent Sanctions Motion for ESI Spoliation — Postjudgment Sanctions Order Is Appealable When District Court Has Finally Disposed of Both Liability and Amount

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

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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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