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

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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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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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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