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

Wayback Machine Printouts Not Authenticated Absent Certification from Representative of Archive.Org

Open Text S.A. v. Box, Inc., 2015 U.S. Dist. LEXIS 11312 (N.D. Cal. Jan. 30, 2015): Box points to three pieces of evidence to establish that Ploeger's website was indexed and therefore publicly accessible: (1) Ploeger's deposition testimony; (2) what purports to be a printout of page from the Wayback Machine's Inte ...
Open Text S.A. v. Box, Inc., 2015 U.S. Dist. LEXIS 11312 (N.D. Cal. Jan. 30, 2015): Box points to three pieces of evidence to establish that Ploeger's website was indexed and therefore publicly accessible: (1) Ploeger's deposition testimony; (2) what …
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Federal Jurisdiction: Does the Domestic Relations Exception Apply Only to Cases Brought under Diversity Jurisdiction Or to All Cases over Which Federal Courts Have Subject Matter Jurisdiction? Circuit Split

Edelglass v. State of N.J., 2015 U.S. Dist. LEXIS 5320 (D.N.J. Jan. 16, 2015): The domestic relations [*24]  exception to federal diversity jurisdiction was first raised in Barber v. Barber, 21 How. 582, 16 L. Ed. 226 (1859). In 1992, the Supreme Court explained that the domestic relations exception, ...
Edelglass v. State of N.J., 2015 U.S. Dist. LEXIS 5320 (D.N.J. Jan. 16, 2015): The domestic relations [*24]  exception to federal diversity jurisdiction was first raised in Barber v. Barber, 21 How. 582, 16 L. Ed. 226 (1859). In 1992, …
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Grupo Mexicano Inapt If Equitable Relief Sought — General Jurisdiction after Daimler — Specific Jurisdiction over Non-Parties — No Waiver of Defense That Didn’t Exist Below — Civil Contempt Can’t Be Punitive

Gucci Am., Inc. v. Bank of China¸ 768 F.3d 122 (2d Cir. 2014): This case arises out of the legal efforts of a number of luxury goods retailers to protect their intellectual property and stop alleged counterfeiters from marketing fake merchandise over the Internet and then hiding the profits from the sale of their counterfeit ...
Gucci Am., Inc. v. Bank of China¸ 768 F.3d 122 (2d Cir. 2014): This case arises out of the legal efforts of a number of luxury goods retailers to protect their intellectual property and stop alleged counterfeiters from marketing fake …
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Friend vs. Facebook Friend — New Trial Denied Despite Juror’s Facebook Email to Witness Who Was a Facebook Friend — Facebook Friendships Often Exist Between People Who Are Indifferent to One Another (Good Quote)

State v. Smith, 2015 Tenn. Crim. App. LEXIS 5 (Tenn. Ct. Crim. App. Jan. 7, 2015) (this is an appeal on remand from the Tennessee Supreme Court, whose opinion is excerpted in our blog post of March 25,2014): A jury convicted the defendant, William Darelle Smith, of first degree (premeditated) murder, and he was sentenced to life in pr ...
State v. Smith, 2015 Tenn. Crim. App. LEXIS 5 (Tenn. Ct. Crim. App. Jan. 7, 2015) (this is an appeal on remand from the Tennessee Supreme Court, whose opinion is excerpted in our blog post of March 25,2014): A jury…
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No Rule 37(c) Sanctions on Counsel — Fees for Time on Sanctions Motion and Fee App OK — Reasonable Fees: Court Looks to Lawyer’s Customary Rates, NLJ Survey; Rates OK’ed in Various SDNY Cases Listed — No Partner Rates for Associate Work

Pichardo v. C.R. Bard, Inc., 2015 U.S. Dist. LEXIS 10722 (S.D.N.Y. Jan. 26, 2015): Defendants C.R. Bard, Inc. and Bard Peripheral Vascular, Inc. have moved for monetary sanctions against Jean Prabhu, Esq., the attorney who represents plaintiff Glenny Pichardo in this litigation. Pursuant to Rule 16(f) of the Federal Rules of Civil Pro ...
Pichardo v. C.R. Bard, Inc., 2015 U.S. Dist. LEXIS 10722 (S.D.N.Y. Jan. 26, 2015): Defendants C.R. Bard, Inc. and Bard Peripheral Vascular, Inc. have moved for monetary sanctions against Jean Prabhu, Esq., the attorney who represents plaintiff Glenny Pichardo in…
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Text Authentication — Testimony That Child Called D “Godfather,” That Child’s Phone Id’d Texts as from Godfather, And That D Gave Child Phone Authenticate Texts as Sent by D (Who Didn’t Deny Sending) — Texts as 801(e) Admissions

Campos v. State, 2015 Tex. App. LEXIS 230 (Tex. Ct. App. Jan. 13, 2015): The State called M.N., and, before she testified, the prosecutor informed the trial court that she would testify about text messages C.G.J. had received [*6]  from appellant. [M.N. was 10-year-old C.G.J.’s aunt, with whom he l ...
Campos v. State, 2015 Tex. App. LEXIS 230 (Tex. Ct. App. Jan. 13, 2015): The State called M.N., and, before she testified, the prosecutor informed the trial court that she would testify about text messages C.G.J. had received [*6]  from …
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Internet Evidence — Chats May Be Admissible for Non-Hearsay Purposes of Showing State of Mind, Intent, Knowledge, Absence Mistake and Associating Owner with Material on His or Her Computer

United States v. DeFoggi, 2014 U.S. Dist. LEXIS 93198 (D. Neb. June 9, 2014): C. Motion in Limine DeFoggi's Motion in Limine seeks to prevent the government from referencing the "fantasy chat private messages sent to and from" particular usernames from Website A, arguing the messages are irrelevan ...
United States v. DeFoggi, 2014 U.S. Dist. LEXIS 93198 (D. Neb. June 9, 2014): C. Motion in Limine DeFoggi's Motion in Limine seeks to prevent the government from referencing the "fantasy chat private messages sent to and from" particular usernames…
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Rule 37 Sanctions — Optional Preclusion for Untimely Disclosure of Evidence — Offending Party May Not Offer It Initially, But Opponent May; If So, Offender May Then Use It, Too — Good Quote on Too Many Supposed Mistakes to Be Plausible

Bryntesen v. Camp Automotive, Inc., 2015 U.S. Dist. LEXIS 7371 (D. Ida. Jan. 20, 2015): 2. Sanctions Defendants ask the Court to sanction Plaintiffs for late disclosure of three videos -- two videos of the arrest incident made by bystanders, and one video of Casey Bryntesen calling Scott Grumbl ...
Bryntesen v. Camp Automotive, Inc., 2015 U.S. Dist. LEXIS 7371 (D. Ida. Jan. 20, 2015): 2. Sanctions Defendants ask the Court to sanction Plaintiffs for late disclosure of three videos — two videos of the arrest incident made by bystanders,…
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Expert Report Dictated to Counsel, Who Prepared and Signed It, Not Excluded — Counsel as Scrivener — Absence of Expert’s Signature Insufficient to Preclude Report or Testimony

Bryntesen v. Camp Automotive, Inc., 2015 U.S. Dist. LEXIS 7371 (D. Ida. Jan. 20, 2015): 3. Expert James Bower Federal Rule of Civil Procedure 26(a)(2) requires a party to disclose the identity of any expert witness. The disclosure "must be accompanied by a written report -- prepared and signed by t ...
Bryntesen v. Camp Automotive, Inc., 2015 U.S. Dist. LEXIS 7371 (D. Ida. Jan. 20, 2015): 3. Expert James Bower Federal Rule of Civil Procedure 26(a)(2) requires a party to disclose the identity of any expert witness. The disclosure "must be …
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Sales of Securities of U.S. Issuers by U.S. Market Makers = Domestic Transactions under Morrison — Point of Irrevocable Liability Is Key — OTCBB, Pink Sheets ≠ National Exchanges — Wire Fraud Statute Applies Extraterriorially

United States v. Georgiou, 2015 U.S. App. LEXIS 832 (3d Cir. Jan. 20, 2015): A federal jury convicted Appellant George Georgiou ("Appellant" or "Georgiou") of conspiracy, securities fraud, and wire fraud for his participation in planned manipulation of the markets of four publicly traded stocks, resulting in more t ...
United States v. Georgiou, 2015 U.S. App. LEXIS 832 (3d Cir. Jan. 20, 2015): A federal jury convicted Appellant George Georgiou ("Appellant" or "Georgiou") of conspiracy, securities fraud, and wire fraud for his participation in planned manipulation of the markets…
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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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