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

Fifth Amendment Privilege in Civil Cases — Party Barred from Offering Any Evidence on Subjects Shielded from Discovery by Its Own Assertion of Fifth

Barrette Outdoor Living, Inc. v. Mich. Resin. Representatives, 2015 U.S. Dist. LEXIS 8936 (E.D. Mich. Jan. 27, 2015): B.  Plaintiff's Motion in Limine to Preclude Defendant John Lemanski from Offering Any Evidence and/or Testimony on Subjects He Shielded from Discovery Through His Assertion of th ...
Barrette Outdoor Living, Inc. v. Mich. Resin. Representatives, 2015 U.S. Dist. LEXIS 8936 (E.D. Mich. Jan. 27, 2015): B.  Plaintiff's Motion in Limine to Preclude Defendant John Lemanski from Offering Any Evidence and/or Testimony on Subjects He Shielded from Discovery …
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Text Authentication = Knowledge of Cell Password & Identifying Info in Other Texts — Contact Info for Brother, Girlfriend + Texts Addressed to Person Suffice — Incoming Texts ≠ Hearsay But Context for Outgoing — 901(b)(6) Doesn’t Apply to Texts

United States v. Benford, 2015 U.S. Dist. LEXIS 17046 (W.D. Okla. Feb. 12, 2015): A.  Text Messages Although Defendant represents that over 3,800 text messages were retrieved from the cellphone, at issue are 12 text messages exchanged on February 11, 2014, approximately three months before Def ...
United States v. Benford, 2015 U.S. Dist. LEXIS 17046 (W.D. Okla. Feb. 12, 2015): A.  Text Messages Although Defendant represents that over 3,800 text messages were retrieved from the cellphone, at issue are 12 text messages exchanged on February 11,…
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Judicial Notice of Internet Evidence — Gmail Functionality as Described on Gmail Website — Note: Gmail Allows Users to Send Messages with Another of Their Email Addresses Listed Instead of Gmail

McNaughton v. de Blasio, 2015 U.S. Dist. LEXIS 13352 (S.D.N.Y. Feb. 4, 2015): Footnote 10   One accusation raised in the portion of Plaintiff's opposition brief dedicated to the alleged "deletion or falsification of emails" (Pl. Opp. 6) requires a brief response -- if only to illustrate Plaintiff's knack for inferr ...
McNaughton v. de Blasio, 2015 U.S. Dist. LEXIS 13352 (S.D.N.Y. Feb. 4, 2015): Footnote 10   One accusation raised in the portion of Plaintiff's opposition brief dedicated to the alleged "deletion or falsification of emails" (Pl. Opp. 6) requires a brief…
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Sanctions for Failure to Disclose Insurance Coverage under Rule 26(a)(1) Not Waived If Not Raised in District Court — Rule 26(g)(3) Mandates Sanctions Sua Sponte for Breach of Disclosure Duty

Food Team Int’l, Ltd. v. Unilink, LLC, 2014 U.S. App. LEXIS 23732 (3d Cir. Dec. 17, 2014): D. Rule 26 Sanctions The parties dispute whether the District Court should have sanctioned Defendants and their counsel for their failure to disclose Unilink's insurance policy. Rule 26(a) provides ...
Food Team Int’l, Ltd. v. Unilink, LLC, 2014 U.S. App. LEXIS 23732 (3d Cir. Dec. 17, 2014): D. Rule 26 Sanctions The parties dispute whether the District Court should have sanctioned Defendants and their counsel for their failure to disclose …
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Email/Text — Text Messages on Cell Phone Found on Vehicle Occupied by Only One Person Sufficiently Tied to Person by Circumstantial Evidence (Contents of Messages) = Admissions, Declarations against Interest

Jiminez v. State, 2014 Tex. App. LEXIS 12737 (Tex. Ct. App. Nov. 25, 2014): Appellant Martin Robeles Jimenez was convicted by a jury of possession of a controlled substance, methamphetamine, in an amount of four grams or more but less than 200 grams, with the intent to deliver. The jury imposed a punishment of fifteen years in prison ...
Jiminez v. State, 2014 Tex. App. LEXIS 12737 (Tex. Ct. App. Nov. 25, 2014): Appellant Martin Robeles Jimenez was convicted by a jury of possession of a controlled substance, methamphetamine, in an amount of four grams or more but less…
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Fact That Document Is Publicly Available Does Not Justify Failure to Disclose It under Rule 26(a)(1) to Provide Notice to Adversary — Failure to Disclose Leads to Preclusion under Rule 37(c)

Martino v. Kiewit New Mexico, 2015 U.S. App. LEXIS 1457 (5th Cir. Jan. 29, 2015): I. Background This dispute arose out of a construction worksite accident in which Gomez, one of Kiewit's employees, ran over Martino with a "skid steer," a machine Gomez was using to excavate dirt. The constr ...
Martino v. Kiewit New Mexico, 2015 U.S. App. LEXIS 1457 (5th Cir. Jan. 29, 2015): I. Background This dispute arose out of a construction worksite accident in which Gomez, one of Kiewit's employees, ran over Martino with a "skid steer," …
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Instagram — Testimony That Witness Downloaded Photo from Instagram and Third Party’s Cell = Sufficient Authentication Where Photo Clearly Showed Defendant — No Need for Expert Evidence as to Downloading Process

In re D.H., 2015 Cal. App. Unpub. LEXIS 867 (Cal. Ct. App. Feb. 6, 2015):     D.H. appeals from a judgment entered in a proceeding under Welfare and Institutions Code section 602. He contends (1) the juvenile court erred by admitting a photograph of a photograph that was on someone else's cell phone, and which was also posted o ...
In re D.H., 2015 Cal. App. Unpub. LEXIS 867 (Cal. Ct. App. Feb. 6, 2015):     D.H. appeals from a judgment entered in a proceeding under Welfare and Institutions Code section 602. He contends (1) the juvenile court erred by admitting…
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Rule 68 — Circuit Split as to Validity of Unapportioned Offer of Judgment to Multiple Plaintiffs — Where Offer Doesn’t Break Out Statutorily Awardable Fees, Judgment = Reasonable Fees + Verdict — Are Fees Available for Nominal Verdict?

Doe v. Rutherford Cnty., 2015 U.S. Dist. LEXIS 13200 (M.D. Tenn. Feb. 4, 2015): Following a jury trial, the jury entered a verdict in favor of the defendant on all counts other than plaintiff Jane Doe's Title IX retaliation claim. Pending before the court are several post-trial motions and related requests for costs, including the ...
Doe v. Rutherford Cnty., 2015 U.S. Dist. LEXIS 13200 (M.D. Tenn. Feb. 4, 2015): Following a jury trial, the jury entered a verdict in favor of the defendant on all counts other than plaintiff Jane Doe's Title IX retaliation claim.…
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Rule 11 Sanctions on Client for Legally Frivolous Claims Reversed Even Though Issue First Raised on Appeal — Counsel’s Conflict below Excuses Untimely Assertion — Reassertion of Previously Dismissed Claims Sanctionable

Mitchel v. City of Santa Rosa, 2015 U.S. App. LEXIS 1348 (9th Cir. Jan. 28, 2015): The district court did not err by concluding that the identified claims were legally unfounded and therefore sanctionable. See Fed. R. Civ. P. 11(b)(2). These claims attempted to re-litigate, without modification, conte ...
Mitchel v. City of Santa Rosa, 2015 U.S. App. LEXIS 1348 (9th Cir. Jan. 28, 2015): The district court did not err by concluding that the identified claims were legally unfounded and therefore sanctionable. See Fed. R. Civ. P.…
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Judicial Notice of Internet Evidence — State Correctional Records Reflecting Inmate’s Risk Classification

Dugas v. Wittrup, 2015 U.S. Dist. LEXIS 10962 (S.D. Ohio Jan. 30, 2015): Plaintiff, an inmate currently incarcerated at the Chillicothe Correctional Institution ("CCI"), brings this action under 42 U.S.C. § 1983 against Brian Wittrup, Chief of the Bureau of Classification for the Ohio Department of Rehabilitation a ...
Dugas v. Wittrup, 2015 U.S. Dist. LEXIS 10962 (S.D. Ohio Jan. 30, 2015): Plaintiff, an inmate currently incarcerated at the Chillicothe Correctional Institution ("CCI"), brings this action under 42 U.S.C. § 1983 against Brian Wittrup, Chief of the Bureau of…
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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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