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

FRAP 38 Sanctions on Appellant Arguing Its Own Claims Were Too Frivolous to Support Subject Matter Jurisdiction — Utterly Frivolous Federal Claim Won’t Support Jurisdiction — Best Evidence of Value of Lawyer’s Time Is What Client Agreed to Pay

McCoy v. Iberdrola Renewables, Inc., 2014 U.S. App. LEXIS 19621 (7th Cir. Oct. 7, 2014): We previously affirmed the judgment of the district court dismissing the third-party counterclaims of the Outland [*2]  entities. 760 F.3d 674 (7th Cir. 2014). After we issued the opinion, the Outland appellants filed a petiti ...
McCoy v. Iberdrola Renewables, Inc., 2014 U.S. App. LEXIS 19621 (7th Cir. Oct. 7, 2014): We previously affirmed the judgment of the district court dismissing the third-party counterclaims of the Outland [*2]  entities. 760 F.3d 674 (7th Cir. 2014). After…
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Securities — Is Pleading of Loss Causation Governed by Rule 8(a) or 9(b)? — Case Law Split

Stein v. Tangoe, Inc., 2014 U.S. Dist. LEXIS 137966, at *82-83 n. 7 (D. Conn. Sept. 30, 2014): Courts have split on whether Rule 8(a) or Rule 9(b) applies to pleading the loss causation element, but this Court need not address that issue because the Plaintiff has not pleaded sufficient loss causation ...
Stein v. Tangoe, Inc., 2014 U.S. Dist. LEXIS 137966, at *82-83 n. 7 (D. Conn. Sept. 30, 2014): Courts have split on whether Rule 8(a) or Rule 9(b) applies to pleading the loss causation element, but this Court need not…
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Preliminary Injunctions — Court May Consider Hearsay Evidence on P.I. Motion — Admissibility under Federal Rules of Evidence Goes to Weight at P.I. Stage

Gluco Perfect, LLC. v. Perfect Gluco Prods., Inc., 2014 U.S. Dist. LEXIS 141966 (E.D.N.Y. Oct. 3, 2014): The court makes the following findings of fact based on the parties' submissions and testimony and evidence presented at the preliminary injunction hearing. In hearing evidence on a motion for preliminary injunction, the " ...
Gluco Perfect, LLC. v. Perfect Gluco Prods., Inc., 2014 U.S. Dist. LEXIS 141966 (E.D.N.Y. Oct. 3, 2014): The court makes the following findings of fact based on the parties' submissions and testimony and evidence presented at the preliminary injunction hearing.…
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Good Cause to Modify Scheduling Order under Rule 16(b)(4) “Primarily Considers the Diligence of the Party Seeking the Amendment” — Absent Diligence, the Inquiry Should End

Hall v. City of Fairfield, 2011 U.S. Dist. LEXIS 146444 (E.D. Cal. Dec. 19, 2011): Defendants move for an order "authoriz[ing] the disclosure of a supplemental expert witness" in this case. (Mot. 2:4-5, ECF No. 68.) Defendants seek in this motion to "amend[] the prior Pretrial Order and allow both parties to disclose v ...
Hall v. City of Fairfield, 2011 U.S. Dist. LEXIS 146444 (E.D. Cal. Dec. 19, 2011): Defendants move for an order "authoriz[ing] the disclosure of a supplemental expert witness" in this case. (Mot. 2:4-5, ECF No. 68.) Defendants seek in this…
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Text Messages — Circumstantial Evidence of Authenticity: Reference to Matters Unlikely to Be Known to Anyone Other Than the Person Claimed to Be the Author

People v. Lehmann, 2014 Cal. App. Unpub. LEXIS 6654 (Cal. Ct. App. Sept. 17, 2014): Text Messages Defendant argues the trial court erred by admitting text messages between him and Emily on the day of the murders because they were not sufficiently authenticated. We review the trial court's order ad ...
People v. Lehmann, 2014 Cal. App. Unpub. LEXIS 6654 (Cal. Ct. App. Sept. 17, 2014): Text Messages Defendant argues the trial court erred by admitting text messages between him and Emily on the day of the murders because they were…
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Sanctions — Dismissal/Default as Proper Penalty for Perjury, But Insufficient When Meritless Case Based only on the Perjury — Referral to Prosecutor, Potential Vexatious Litigant Injunction, Too, for Serial Perjurer

Rivera v. Drake, 2014 U.S. App. LEXIS 17173 (7th Cir. Sept. 3, 2014): Contending that a guard at his prison had sexually assaulted him during a pat-down by inserting a finger in his anus, Natanael Rivera filed this suit under 42 U.S.C. §1983 seeking damages. Michael Drake, the guard, asked the court to dismiss the suit because Rivera ...
Rivera v. Drake, 2014 U.S. App. LEXIS 17173 (7th Cir. Sept. 3, 2014): Contending that a guard at his prison had sexually assaulted him during a pat-down by inserting a finger in his anus, Natanael Rivera filed this suit under…
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Expert Report Is Not “Talisman against Summary Judgment” — Expert Is “Entitled to His Opinion” But Expert’s View of Facts Doesn’t Preclude Summary Judgment (Good Quotes)

Dalberth v. Xerox Corp., 2014 U.S. App. LEXIS 17357 (2d Cir. Sept. 8, 2014): 2. The Interaction Between the Daubert and Summary Judgment Rulings We also address briefly Plaintiffs' assertion that, having qualified Saunders as an expert, summary judgment should not have been granted< ...
Dalberth v. Xerox Corp., 2014 U.S. App. LEXIS 17357 (2d Cir. Sept. 8, 2014): 2. The Interaction Between the Daubert and Summary Judgment Rulings We also address briefly Plaintiffs' assertion that, having qualified Saunders as an expert, summary judgment should …
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Does a Non-Party’s Invocation of Fifth Amendment Give Rise to Adverse Inference? — Factors — Trial Court’s Reversal of Position on Issue OK: “Courts Are Free to Change Their Minds” (Good Quote)

Coquina Investments v. TD Bank, N.A., 2014 U.S. App. LEXIS 14388 (11th Cir. July 29, 2014): B. Evidentiary rulings TD Bank argues that the district court made several evidentiary errors that require a new trial. We review a district court's evidentiary rulings for an abuse of discretion.  [*17]
Coquina Investments v. TD Bank, N.A., 2014 U.S. App. LEXIS 14388 (11th Cir. July 29, 2014): B. Evidentiary rulings TD Bank argues that the district court made several evidentiary errors that require a new trial. We review a district court's…
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Authentication — Failure to Link Party to Russian Facebook Page Requires Exclusion — Assertion of Identity on Page Inadequate — Second Circuit Skeptical That Greater Scrutiny Should Be Applied to Internet Evidence

United States v. Zhyltsou, 2014 U.S. App. LEXIS 18927 (2d Cir. Oct. 3, 2014): Defendant-Appellant Aliaksandr Zhyltsou's criminal trial on a single charge of transfer of a false identification document, [*2]  the government offered into evidence a printed copy of a web page, which it claimed was Zhyltsou's profile page ...
United States v. Zhyltsou, 2014 U.S. App. LEXIS 18927 (2d Cir. Oct. 3, 2014): Defendant-Appellant Aliaksandr Zhyltsou's criminal trial on a single charge of transfer of a false identification document, [*2]  the government offered into evidence a printed copy of …
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Circumstantial Authentication of Text [or Email] Evidence — Testimony That Person Said He’d Send Text and Text Was Then Received from His Account is Sufficient — Social Media Authentication by Testimonial Stip

People v. Harris, 2014 Cal. App. Unpub. LEXIS 7086 (Cal. Ct. App. Oct. 1, 2014): D. Failure to Object to Inadequately Authenticated Electronic Evidence 1. Background The prosecution's evidence included the following items derived from electronic messages or material posted ...
People v. Harris, 2014 Cal. App. Unpub. LEXIS 7086 (Cal. Ct. App. Oct. 1, 2014): D. Failure to Object to Inadequately Authenticated Electronic Evidence 1. Background The prosecution's evidence included the following items derived from electronic messages or material posted…
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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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