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

Comments Posted on YouTube Purporting to State When Video Was Shot = Hearsay, Inadequate to Authenticate Timing of Depicted Activities

Sublime v. Sublime Remembered, 2013 U.S. Dist. LEXIS 103813 (C.D. Cal. July 22, 2013): Plaintiffs Sublime and Floyd Gaugh IV filed this case in this Court on September 22, 2006. Sublime is a well-known popular music group, and Floyd Gaugh IV is a former member of Sublime. Plaintiffs brought this case seeking to enforce intellectual p ...
Sublime v. Sublime Remembered, 2013 U.S. Dist. LEXIS 103813 (C.D. Cal. July 22, 2013): Plaintiffs Sublime and Floyd Gaugh IV filed this case in this Court on September 22, 2006. Sublime is a well-known popular music group, and Floyd Gaugh…
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Hearsay & Privilege — Statement to Own Counsel Not against Penal Interest (Rule 804(b)(3)) Because Confidential — Residual Exception: Dismal Public View of Lawyers Makes Exclusion of Testimony Reasonable under 807(a)

United States v. Awer, 2014 U.S. App. LEXIS 20700 (1st Cir. Oct. 29, 2014): A federal jury convicted Defendant Kent Awer of possessing cocaine base with intent to distribute. He appeals.  Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. I. The Facts A. The Malibu In th ...
United States v. Awer, 2014 U.S. App. LEXIS 20700 (1st Cir. Oct. 29, 2014): A federal jury convicted Defendant Kent Awer of possessing cocaine base with intent to distribute. He appeals.  Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.…
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Judicial Notice of Internet Evidence (FINRA Rules) — Arbitration: Award May Be Confirmed in Any District Allowed under General Venue Statute — Court Looks to Arbitration Clause and Agreed Arbitral Rules to See If Parties Agreed Otherwise

Morgan Stanley Smith Barney LLC v. Monaco, 2014 U.S. Dist. LEXIS 149419 (D. Colo. Aug. 26, 2014): This case is before the Court pursuant to an Order of Reference to Magistrate Judge issued by Judge Raymond P. Moore on March 17, 2014 (Docket No. 6). Petitioners ask the Court to enter judgment confirming an arbitration aw ...
Morgan Stanley Smith Barney LLC v. Monaco, 2014 U.S. Dist. LEXIS 149419 (D. Colo. Aug. 26, 2014): This case is before the Court pursuant to an Order of Reference to Magistrate Judge issued by Judge Raymond P. Moore on March…
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Email Authentication via Admission

Anderson v. United States, 2014 U.S. Dist. LEXIS 166799 (N.D. Ga. Dec. 2, 2014): 6. Failure to Challenge Authenticity and Completeness of E-Mails Finally, Petitioner contends that his trial counsel provided ineffective assistance by failing to challenge the authenticity and completeness of the printouts of e-m ...
Anderson v. United States, 2014 U.S. Dist. LEXIS 166799 (N.D. Ga. Dec. 2, 2014): 6. Failure to Challenge Authenticity and Completeness of E-Mails Finally, Petitioner contends that his trial counsel provided ineffective assistance by failing to challenge the authenticity and…
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Dismissal as Discovery Sanction — Availability — Factors (5th Circuit) — Attorney’s Fees and Costs Imposed on Counsel Personally under Rule 37 for Deposing and Redeposing

Progressive Waste Solutions of La., Inc. v. Lafayette City-Parish Consol. Gov’t, 2014 U.S. Dist. LEXIS 150199 (W.D. La. Oct. 22, 2014): MEMORANDUM RULING ON MOTION FOR CONTEMPT AND SANCTIONS AND ORDER On October 17, 2014, the undersigned held a hearing in open Court on the Motion for Contempt and Sanctions f ...
Progressive Waste Solutions of La., Inc. v. Lafayette City-Parish Consol. Gov’t, 2014 U.S. Dist. LEXIS 150199 (W.D. La. Oct. 22, 2014): MEMORANDUM RULING ON MOTION FOR CONTEMPT AND SANCTIONS AND ORDER On October 17, 2014, the undersigned held a hearing…
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Email/Text Messages — Third Party Request via Text Is Not Hearsay — Failure to Deny Ownership of Phone + Attempt to Explain Contents of Messages = Adequate Authentication

People v. Allen, 2014 Cal. App. Unpub. LEXIS 7776 (Cal. Ct. App. Oct. 29, 2014): Brandon Allen appeals from a judgment which sentences him to three years formal probation for possession of marijuana for sale in violation of Health and Safety Code section 11359. Allen contends the trial court committed various evidentiary errors which ...
People v. Allen, 2014 Cal. App. Unpub. LEXIS 7776 (Cal. Ct. App. Oct. 29, 2014): Brandon Allen appeals from a judgment which sentences him to three years formal probation for possession of marijuana for sale in violation of Health and…
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No Appellate Jurisdiction to Review Interlocutory Order Finding Ethical Violations, Imposing Sanctions & Disqualifying Counsel — Prior Opinion That Fails to Address Issue Squarely Is Not Binding — Is Talao Limited to Criminal Cases?

Lynn v. Gateway Unified Sch. Dist., 2014 U.S. App. LEXIS 21194 (9th Cir. Nov. 6, 2014): Attorney Robert E. Thurbon (Thurbon) appeals the district court's order finding that he committed ethical violations, and disqualifying him from representing the plaintiff Kendall Lynn (Lynn) in a pending action against Gateway Unified ...
Lynn v. Gateway Unified Sch. Dist., 2014 U.S. App. LEXIS 21194 (9th Cir. Nov. 6, 2014): Attorney Robert E. Thurbon (Thurbon) appeals the district court's order finding that he committed ethical violations, and disqualifying him from representing the plaintiff Kendall …
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District Court Has Jurisdiction to Issue Rule 11 Sanctions and Vacate Remand Order under Rule 60(b)(3) for Misrepresentations Leading to Remand (Circuit Split) — Vacatur vs. Review — Scope of, and Exceptions to, §1447(d)

Barlow v. Colgate Palmolive Co., 2014 U.S. App. LEXIS 22324 (4th Cir. Nov. 25, 2014) (reversing the panel decision excerpted in our blog post of May 8, 2014): This appeal involves the interplay between 28 U.S.C. § 1447(d), which prohibits federal courts from reviewing orders remanding cases to state court, and Federal Rules ...
Barlow v. Colgate Palmolive Co., 2014 U.S. App. LEXIS 22324 (4th Cir. Nov. 25, 2014) (reversing the panel decision excerpted in our blog post of May 8, 2014): This appeal involves the interplay between 28 U.S.C. § 1447(d), which …
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Did the Sliding-Scale Preliminary Injunction Test Survive Winter? Circuit Split

Converdyn v. Moniz, 2014 U.S. Dist. LEXIS 127838 (D.D.C. Sept. 12, 2014): The District of Columbia Circuit has applied a "sliding scale" approach in evaluating the preliminary injunction factors. Sherley, 644 F.3d at 392. Under [*22]  this analysis, [i]f the movant ...
Converdyn v. Moniz, 2014 U.S. Dist. LEXIS 127838 (D.D.C. Sept. 12, 2014): The District of Columbia Circuit has applied a "sliding scale" approach in evaluating the preliminary injunction factors. Sherley, 644 F.3d at 392. Under [*22]  this analysis, [i]f the…
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RICO — Physical Injuries Not Compensable under §1964(d) — §1961(1) List of Predicates Is Exclusive — Municipalities: Doctrine of Acquiescence

Otworth v. Budnik, 2014 U.S. App. LEXIS 22378 (6th Cir. Nov. 21, 2014): A. RICO In order properly to allege a RICO claim, Otworth must show "'(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.'" Heinrich v. Waiting Angels Adoption Servs., Inc
Otworth v. Budnik, 2014 U.S. App. LEXIS 22378 (6th Cir. Nov. 21, 2014): A. RICO In order properly to allege a RICO claim, Otworth must show "'(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.'"…
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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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