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

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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Spoliation — Bad Faith Required for Dismissal Sanction (Eighth Circuit) — Failure to Request Lesser Sanctions Precludes Later Argument They Should Have Been Granted

Bisges v. Gargula (In re Clink), 2014 U.S. App. LEXIS 20177 (8th Cir. Oct. 21, 2014): I. Background Bisges represented Anne Clink in her [*2]  Chapter 7 bankruptcy case. After the case was closed, United States Trustee Nancy Gargula moved to reopen the case because she learned that Clink possibly had f ...
Bisges v. Gargula (In re Clink), 2014 U.S. App. LEXIS 20177 (8th Cir. Oct. 21, 2014): I. Background Bisges represented Anne Clink in her [*2]  Chapter 7 bankruptcy case. After the case was closed, United States Trustee Nancy Gargula moved …
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Judicial Notice of Internet Evidence — Court Records from Westlaw — Westlaw as a Reliable Source

Pickens v. Klee, 2014 U.S. Dist. LEXIS 163390 (E.D. Mich. Nov. 21, 2014): A habeas petitioner has the burden of proving that he or she has exhausted his or her state court remedies. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). Federal habeas corpus relief is unavailable to a state prisoner who fails to allege that he or ...
Pickens v. Klee, 2014 U.S. Dist. LEXIS 163390 (E.D. Mich. Nov. 21, 2014): A habeas petitioner has the burden of proving that he or she has exhausted his or her state court remedies. See Rust v. Zent, 17 F.3d 155,…
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Interlocutory Appeals — Rule 54(b): Separateness Requirement — Fugitive Disentitlement Doctrine Does Not Apply to Civil Litigant Refusing to Participate in Lawsuit: Judicial Wariness of Doctrine’s Civil Application — Bond on Appeal Is Optional

Niemi v. Lasshofer, 2014 U.S. App. LEXIS 21365 (10th Cir. Nov. 4, 2014): John Niemi, Robert Naegele, III, and Jesper Parnevik ("Plaintiffs" or "Appellees") claim that Erwin Lasshofer and three companies affiliated with him (the "Lasshofer Defendants" or "Appellants"), along with other co-conspir ...
Niemi v. Lasshofer, 2014 U.S. App. LEXIS 21365 (10th Cir. Nov. 4, 2014): John Niemi, Robert Naegele, III, and Jesper Parnevik ("Plaintiffs" or "Appellees") claim that Erwin Lasshofer and three companies affiliated with him (the "Lasshofer Defendants" or "Appellants"), along…
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Recent Posts

RICO: Indirect Injury Unrecoverable — Indirect Purchaser Rule Imported from Antitrust

Rule 11 Sanctions: (1) Improper Purpose of Harassment Reasonably Determined Based on Past Tactics (25 Lawsuits, 14 Ethics Complaints, and 150 FOIA Requests) As Well As Present Behavior — (2) Hearings Are Not Only Not Required to Satisfy Due Process But, If The Record Is Otherwise Adequate, Are Affirmatively Discouraged

RICO and Probate Exception to Federal Jurisdiction: Federal Jurisdiction over RICO Claim Not Barred by Probate Exception Even If the Federal Judgment May Be Binding on the Probate Proceedings (Or Vice Versa) — Calculating Damages Based on Diminution of Value of Estate ≠ Administration of the Estate — Doesn’t Matter If RICO Misconduct Includes Defendants’ Actions with Respect to The Estate

RICO: No Causation Where Harm Flowed Several Steps After the Fraudulent Acts — RICO Causation Same As Antitrust Causation

Sanctions vs. Automatic Stay: Imposition of Sanctions (Here, Inherent Power Sanctions) Is Subject to the Police Power Exception to the Automatic Stay in Bankruptcy

The Word “Include” May Be A Word of Limitation As Opposed to a Word of Enlargement, Depending on the Context

RICO — Pleading Conspiracy — Plaintiffs Must Plausibly Allege That the Defendants Knowingly Joined the RICO Conspiracy — Sparse Allegations of Knowledge of Fraud Due to Participation in a Commercial Transaction Insufficient to State RICO Conspiracy Claim Where Allegations Not Inconsistent with Ordinary Commercial Behavior — While Knowledge May Be Pled “Generally” under Rule 9(b), It Cannot Be Alleged Conclusorily and Must Satisfy the Twiqbal Plausibility Standard

Depositions: Improper to Object to Form to Straightforward Questions (Not Compound, Vague, Leading or Speculative) — Lack of Foundation Objection Improper in 30(b)(6) Deposition — Improper to “Educate” Witness During Breaks of 30(b)(6) Deposition Through Witness Calls to Knowledgeable Corporate Colleagues — Magistrate Judge May Impose Financial Sanctions

Spoliation/Sanctions: “A Party Does Not Spoliate Evidence When, Without Notice Of The Evidence’s Potential Relevance, It Destroys The Evidence According To Its Policy Or In The Normal Course Of Its Business” (Good Quote)

RICO: Fraud on Government Entities Causing Plaintiffs to Pay More for Inmate Calls Actionable on Bridge v. Phoenix Bond Analysis — Fact That Governments Had Separate Injuries As Part of the Scheme (from Reduced Commissions) Irrelevant — Plaintiffs’ Injuries Not Derivative of Governments’ — The Fraud on the Governments Was Not Too Distinct From Plaintiffs’ Injuries But Rather Necessary to Injure Plaintiffs — No Risk of Duplicative Recoveries and No Plaintiff Better Situated to Sue for Plaintiffs’ Injuries

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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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