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 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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2010 Expert Witness Amendments — Expert Communications with Non-Lawyer Client Employees and Agents ≠ Work Product — Sharing of Drafts with Client, Its Auditor ≠ Waiver — Documents Created by Non-Lawyers Privileged If Contain Advice of Counsel

United States v. Veolia Env’t N. Am. Operations, Inc., 2014 U.S. Dist. LEXIS 154717 (D. Del. Oct. 31, 2014): Pending before the Court is Petitioner United States of America's Motion to Enforce Internal Revenue Service ("IRS") Summonses against Veolia Environment North America Operations, Inc. ("Taxpayer"). (D ...
United States v. Veolia Env’t N. Am. Operations, Inc., 2014 U.S. Dist. LEXIS 154717 (D. Del. Oct. 31, 2014): Pending before the Court is Petitioner United States of America's Motion to Enforce Internal Revenue Service ("IRS") Summonses against Veolia Environment…
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Date & Time Stamp on Voicemail, Like Header on Fax, ≠ Hearsay — Nor Is Voicemail Offered for Fact Statements Were Made — No Best Evidence Bar Where Provider Deleted Original — Witness Testimony OK; Maybe Copy, Too

Walker v. Asset Acceptance LLC, 2012 U.S. Dist. LEXIS 95128 (D.N.J. July 10, 2012): a. The Voicemail Message and Plaintiff's Testimony Are Not Hearsay "Hearsay" means a statement that (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in eviden ...
Walker v. Asset Acceptance LLC, 2012 U.S. Dist. LEXIS 95128 (D.N.J. July 10, 2012): a. The Voicemail Message and Plaintiff's Testimony Are Not Hearsay "Hearsay" means a statement that (1) the declarant does not make while testifying at the current…
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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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