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

Experts — Reliance on Business Plan without Inquiry into Qualifications of Preparers or Underlying Assumptions Renders Opinion Unreliable — Expert’s Alternate Opinion Should’ve Been Allowed: Exclusion of Critical Evidence Is Extreme Sanction

ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254 (3d Cir. 2012): 2. Expert Testimony on Damages In their cross-appeal, Plaintiffs argue that the District Court erred in excluding DeRamus's testimony on the issue of damages. The core of DeRamus's damages analysis was one page (titled " ...
ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254 (3d Cir. 2012): 2. Expert Testimony on Damages In their cross-appeal, Plaintiffs argue that the District Court erred in excluding DeRamus's testimony on the issue of damages. The core of DeRamus's …
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Internet Evidence — Circumstantial Authentication That Defendants Made Yelp Postings: Failure to Deny Authorship and Repetition of Substantially the Same Alleged Grievances in Court Filings Suffices

Pham v. Lee, 2014 Cal. App. Unpub. LEXIS 8812 (Cal. Ct. App. Dec. 11, 2014): Plaintiff Randal Pham, an ophthalmologist, filed a defamation action against defendants Jenny Lee and Alvin Lee (the Lees) for statements they made on the Internet accusing Dr. Pham of fraud, among other things. The Lees moved to strike Dr. P ...
Pham v. Lee, 2014 Cal. App. Unpub. LEXIS 8812 (Cal. Ct. App. Dec. 11, 2014): Plaintiff Randal Pham, an ophthalmologist, filed a defamation action against defendants Jenny Lee and Alvin Lee (the Lees) for statements they made on the Internet …
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§ 1782 Allows Foreign Criminal Complainant to Obtain Documentary Discovery in the United States for Foreign Criminal Investigation Involved an Investigating Magistrate

In re Application for an Order Pursuant to 28 U.S.C. § 1782 to Conduct Discovery for Use in Foreign Proceedings, 2014 U.S. App. LEXIS 23492 (2d Cir. Dec. 12, 2014): The question presented is one of first impression2 in this Court--whether 28 U.S.C. § 1782, which ...
In re Application for an Order Pursuant to 28 U.S.C. § 1782 to Conduct Discovery for Use in Foreign Proceedings, 2014 U.S. App. LEXIS 23492 (2d Cir. Dec. 12, 2014): The question presented is one of first impression2…
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Supreme Court — Removal — § 1446(a) Requires Only Plausible Allegation of Amount in Controversy — Evidence Required Only If Plaintiff Contests, or Court Questions, Defendant’s Allegation — No Presumption against Removal in CAFA Cases

Dart Cherokee Basin Operating Company, LLC v. Owens, 2014 U.S. LEXIS 8435 (U.S. Dec. 15, 2014): To remove a case from a state court to a federal court, a defendant must file in the federal forum a notice of removal "containing a short and plain statement of the grounds for removal." 28 U. S. C. §1446(a). When remov ...
Dart Cherokee Basin Operating Company, LLC v. Owens, 2014 U.S. LEXIS 8435 (U.S. Dec. 15, 2014): To remove a case from a state court to a federal court, a defendant must file in the federal forum a notice of removal…
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Sanctions Wrongly Based in Part on Speculation (X May Have Submitted False Filings) — Defendant Not Tarred with Co-Defendant’s Misconduct — Ninth Circuit Default Standards — Discretion Narrows as Severity of Sanction Increases (Good Quote)

Loops, LLC v. Phoenix Trading, Inc., 2014 U.S. App. LEXIS 21602 (Fed. Cir. Nov. 13, 2014): The issue before us on appeal is whether the district court abused its discretion in granting sanctions of default judgment, attorney's fees, and costs to plaintiffs. The attorney's fees and costs were imposed jointly on defendan ...
Loops, LLC v. Phoenix Trading, Inc., 2014 U.S. App. LEXIS 21602 (Fed. Cir. Nov. 13, 2014): The issue before us on appeal is whether the district court abused its discretion in granting sanctions of default judgment, attorney's fees, and costs …
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Email Admissibility — Admissions, State of Mind, Excited Utterance, Intent or Plan — Courts Sometimes More Lenient with Affidavits and Documents of Party Opposing Summary Judgment

Fleming v. Purcell Painting & Coatings Sw., Inc., 2014 U.S. Dist. LEXIS 178471 (E.D. Cal. Dec. 30, 2014): Defendant Purcell Painting and Coatings Southwest moves for summary judgment. (Def.'s Corrected Mot. Summ. J., ECF No. 29.) Plaintiff Jay Fleming opposes the motion. (Pl.'s Opp'n to Def.'s Mot., ECF No. 39.) ***
Fleming v. Purcell Painting & Coatings Sw., Inc., 2014 U.S. Dist. LEXIS 178471 (E.D. Cal. Dec. 30, 2014): Defendant Purcell Painting and Coatings Southwest moves for summary judgment. (Def.'s Corrected Mot. Summ. J., ECF No. 29.) Plaintiff Jay Fleming opposes…
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Three Good Quotes When You Have to Change Position or Ask a Judge to

“Justice Frankfurter once remarked that, ‘Wisdom too often never comes, and so one ought not to reject it merely because it comes late.’  Henslee v. Union Planters Nat’l Bank & Trust Co., 355 U.S. 595, 600 (Frankfurter, J., dissenting).  This is one of those moments.”  Marsden v. Select Medical Corp., 2007 U.S. D ...
“Justice Frankfurter once remarked that, ‘Wisdom too often never comes, and so one ought not to reject it merely because it comes late.’  Henslee v. Union Planters Nat’l Bank & Trust Co., 355 U.S. 595, 600 (Frankfurter, J.,…
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Circumstantial Email Authentication — Testimony from One User of a Shared Account That Emails Bore the Typical Signature of One Defendant (Sender) and Contents Reflected Matters Known to Her Husband (On Whose Behalf The Messages Were Sent)

Commonwealth v. Johnson, 470 Mass. 300, 2014 Mass. LEXIS 955 (Mass. Dec. 23, 2014): This case concerns the constitutionality of the criminal harassment statute, G. L. c. 265, § 43A (a), and its application to acts of cyberharassment among others. Specifically, we consider whether a pattern of harassing conduct that includes ...
Commonwealth v. Johnson, 470 Mass. 300, 2014 Mass. LEXIS 955 (Mass. Dec. 23, 2014): This case concerns the constitutionality of the criminal harassment statute, G. L. c. 265, § 43A (a), and its application to acts of cyberharassment among others.…
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Inherent Power Sanction: Stripping Pro Hac Vice Status (PHV) for Slipping Note to Witness — PHV as Property Right — Tossing Note = Spoliation — That Lawyer Was Corner-Cutting Before Relevant to Sanction (Good Quote)

Ryan v. Astra Tech, Inc., 2014 U.S. App. LEXIS 21628 (1st Cir. Nov. 14, 2014) (Kayatta, J.): Attorney Jeffrey Ryan ("Ryan") appeals from the district court's revocation of his permission to practice pro hac vice for the plaintiff in the underlying lawsuit that gave rise to these proceedings.1 ...
Ryan v. Astra Tech, Inc., 2014 U.S. App. LEXIS 21628 (1st Cir. Nov. 14, 2014) (Kayatta, J.): Attorney Jeffrey Ryan ("Ryan") appeals from the district court's revocation of his permission to practice pro hac vice for the plaintiff in the …
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Judicial Notice of Internet Evidence — Obituary Posted on Funeral Home Website Properly Noticed, Like Obituary Appearing in Newspaper

Shaut v. Sec’y of Dep’t of HHS, 2014 U.S. Dist. LEXIS 176591 (N.D.N.Y. Dec. 22, 2014): On July 23, 2014, pro se Plaintiff Anna M. Shaut filed a complaint against the United States Department of Health and Human Services ("HHS") seeking judicial review, pursuant to 42 U.S.C. § 1395ff(b), of a May 22, 2014, decision of the Medicar ...
Shaut v. Sec’y of Dep’t of HHS, 2014 U.S. Dist. LEXIS 176591 (N.D.N.Y. Dec. 22, 2014): On July 23, 2014, pro se Plaintiff Anna M. Shaut filed a complaint against the United States Department of Health and Human Services ("HHS")…
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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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