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 (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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Is Pretrial Discovery of Sensitive Financial Information Relevant Only to Punitive Damages Appropriate or Premature, at Least Prior to Summary Judgment? Case Law Split

Bakhit v. Safety Marking, Inc., 2014 U.S. Dist. LEXIS 125684 (D. Conn. Sept. 9, 2014): The Court agrees that the information sought is generally discoverable to support a punitive damages claim. [*4]  Connors v. Pinkertons, Inc., No. 3:98 CV 699 (GLG), 1999 WL 66107, at *2 (D. Conn. Feb. 4, 1999). However, &q ...
Bakhit v. Safety Marking, Inc., 2014 U.S. Dist. LEXIS 125684 (D. Conn. Sept. 9, 2014): The Court agrees that the information sought is generally discoverable to support a punitive damages claim. [*4]  Connors v. Pinkertons, Inc., No. 3:98 CV 699…
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Experts — Failure to Consider Compliance with Standards, Test, or ID Scientific Principles = Analytical Gap — Court Avoids Credibility in Daubert Inquiry — Must Make Specific Factual Findings as Gatekeeper

Heer v. Costco Wholesale Corp., 2014 U.S. App. LEXIS 20863 (10th Cir. Oct. 29, 2014): A. Exclusion of Expert Testimony Ms. Heer argues that, in granting Defendants' motion [*11]  to exclude Mr. Stolz's testimony, the district court applied the wrong legal standard by failing t ...
Heer v. Costco Wholesale Corp., 2014 U.S. App. LEXIS 20863 (10th Cir. Oct. 29, 2014): A. Exclusion of Expert Testimony Ms. Heer argues that, in granting Defendants' motion [*11]  to exclude Mr. Stolz's testimony, the district court applied the wrong…
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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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