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

Authentication of YouTube Videos Posted on Facebook Page by 902(11) Certifications of Records Custodians from Both Companies — Rule of Completeness Admits Otherwise Excluded Statements re Videos Only If Hearsay Rule Satisfied

United States v. Hassan, 742 F.3d 104 (4th Cir. 2014): The appellants in these consolidated proceedings, Mohammad Omar Aly Hassan, Ziyad Yaghi, and Hysen  [**2] Sherifi, were tried jointly in the Eastern District of North Carolina and convicted of several offenses arising from terrorism activities. On appeal, the trio presents myriad ...
United States v. Hassan, 742 F.3d 104 (4th Cir. 2014): The appellants in these consolidated proceedings, Mohammad Omar Aly Hassan, Ziyad Yaghi, and Hysen  [**2] Sherifi, were tried jointly in the Eastern District of North Carolina and convicted of several…
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RICO — Fraudulent Mortgage Assignment and Fraud on Court in Bringing Mortgage Action, Not Underlying Default on Mortgage, Caused Injury in Form of Attorney’s Fees, Sustaining RICO Action

Slorp v. Lerner, Sampson & Rothfuss, 2014 U.S. App. LEXIS 18816 (6th Cir. Sept. 29, 2014): This case relates to alleged misconduct in a separate state-court foreclosure action. The law firm of Lerner, Sampson & Rothfuss (LSR) filed that foreclosure action against Rick Slorp on behalf of its client, Bank of America. Because Countrywide ...
Slorp v. Lerner, Sampson & Rothfuss, 2014 U.S. App. LEXIS 18816 (6th Cir. Sept. 29, 2014): This case relates to alleged misconduct in a separate state-court foreclosure action. The law firm of Lerner, Sampson & Rothfuss (LSR) filed that foreclosure…
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Judicial Notice of Internet Evidence — 2014 Search of Whitepages.com ≠ Indisputable Evidence of What a 2008 Search Would’ve Shown

People v. McClellan, 2014 Ill. App. Unpub. LEXIS 2116 (Ill. Ct. App. Sept. 24, 2014): On July 24, 2012, defendant, Eric McClellan, filed a pro se postconviction petition, alleging, in part, his trial counsel and appellate counsel provided him ineffective assistance. *** On appeal, defendant argues the trial court erred in summa ...
People v. McClellan, 2014 Ill. App. Unpub. LEXIS 2116 (Ill. Ct. App. Sept. 24, 2014): On July 24, 2012, defendant, Eric McClellan, filed a pro se postconviction petition, alleging, in part, his trial counsel and appellate counsel provided him ineffective…
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Do State or Federal Claim Preclusion (Res Judicata) Principles Determine the Effect of Unreviewed State Administrative Agency Factfinding? Circuit Split

Morris v. City of Trenton, 2014 U.S. Dist. LEXIS 136003 (D.N.J. Sept. 26, 2014): 2. Res Judicata The Supreme Court has definitively stated that the notion of full faith and credit (codified at 28 U.S.C. § 1738) "requires that state-court judgments be given both issue and claim preclusive ...
Morris v. City of Trenton, 2014 U.S. Dist. LEXIS 136003 (D.N.J. Sept. 26, 2014): 2. Res Judicata The Supreme Court has definitively stated that the notion of full faith and credit (codified at 28 U.S.C. § 1738) "requires that state-court…
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Daubert — Shaky but Admissible Evidence Is to Be Attacked by Cross-Examination, Contrary Evidence, and Attention to the Burden of Proof, Not Exclusion — Good Quotes on Weight vs. Admissibility

City of Pomona v. SQM N.Am. Corp., 750 F.3d 1036 (9th Cir. 2014), pet’n for cert. pending: After excessive levels of the chemical perchlorate were found in a city's water system, the city undertook to investigate the source of that contamination and remediate. Using a methodology known as "stable isotope analysis,& ...
City of Pomona v. SQM N.Am. Corp., 750 F.3d 1036 (9th Cir. 2014), pet’n for cert. pending: After excessive levels of the chemical perchlorate were found in a city's water system, the city undertook to investigate the source of that…
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Email Evidence — The Admissibility of Emails as Business Records “Is Not a Clear-Cut Issue” — Email Created within a Business Entity Does Not, for That Reason Alone, Satisfy the Business Records Exception — Good Quotes

Kloeckner v Perez, 2014 U.S. Dist. LEXIS 138009 (E.D. Mo. Sept. 30, 2014): Plaintiff objects to the admission of these exhibits "because they relate to actions taken after Plaintiff left the Department and after S. Eischen, S. Newman, and G. Newman were aware of Plaintiff's EEO compliant to include allegations of gender discr ...
Kloeckner v Perez, 2014 U.S. Dist. LEXIS 138009 (E.D. Mo. Sept. 30, 2014): Plaintiff objects to the admission of these exhibits "because they relate to actions taken after Plaintiff left the Department and after S. Eischen, S. Newman, and G.…
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Sanctions — Discretion Narrows as Severity of Sanction Increases — Rule 37 Dismissal or Default: Eighth Circuit Standards — Rule 41 Dismissal: Dilatory Conduct Attributable Solely to Counsel Less Worthy of Dismissal with Prejudice

Bergstrom v. Frascone, 744 F.3d 571 (8th Cir. 2014): James Bergstrom filed suit claiming malicious prosecution and violations of his civil rights. After numerous delays drawing out the discovery period for eighteen months,  [**2] Bergstrom's attorney failed to comply with a court ordered deadline to submit answers to written disc ...
Bergstrom v. Frascone, 744 F.3d 571 (8th Cir. 2014): James Bergstrom filed suit claiming malicious prosecution and violations of his civil rights. After numerous delays drawing out the discovery period for eighteen months,  [**2] Bergstrom's attorney failed to comply with…
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Does Appeal of Arbitrability Decision Divest District Court of Jurisdiction over Underlying Claims? Circuit Split — Appeal to District Court of Bankruptcy Court Arbitrability Decision Results in Automatic Stay of Bankruptcy Proceedings

Vanderbilt Mortg. & Fin., Inc. v. Lucas, 2014 U.S. Dist. LEXIS 116974 (S.D. W.Va. Aug. 22, 2014): The issue before the Court is whether an appeal to the district court, following a bankruptcy court's denial of a motion to compel arbitration, results in an automatic stay of those bankruptcy court proceedings.  The Fourth Circuit C ...
Vanderbilt Mortg. & Fin., Inc. v. Lucas, 2014 U.S. Dist. LEXIS 116974 (S.D. W.Va. Aug. 22, 2014): The issue before the Court is whether an appeal to the district court, following a bankruptcy court's denial of a motion to compel…
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§ 1927 Sanctions for Opposing Dismissal of Suit Claiming That DNC Falsely Represented That President Obama Was Qualified to Be President

Liberty Legal Found. v. Nat’l Democratic Party, 2014 U.S. App. LEXIS 18330 (6th Cir. Sept. 23, 2014): This case arises from the entry of sanctions under 28 U.S.C. § 1927 against Plaintiffs. The district court granted the Defendants' motion for sanctions, finding that Plaintiffs brought a frivolous suit, which accused Defendants ...
Liberty Legal Found. v. Nat’l Democratic Party, 2014 U.S. App. LEXIS 18330 (6th Cir. Sept. 23, 2014): This case arises from the entry of sanctions under 28 U.S.C. § 1927 against Plaintiffs. The district court granted the Defendants' motion for…
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Pro Hac Vice Appearance vs. “Consulting Lawyer” Status — Five-Factor Test for Determining When a Lawyer Is a Consulting Lawyer and Need Not Appear Pro Hac Vice in Federal Court

  Gsell v. Rubin & Yates, LLC, 2014 U.S. Dist. LEXIS 123937 (E.D. Pa. Sept. 4, 2014): This case raises the question of whether a lawyer [Mr. Lee], who is not admitted to practice in the Eastern District of Pennsylvania ("E.D. Pa."), generally or pro hac vice, may recover attorney's fees as a "consulting" ...
Gsell v. Rubin & Yates, LLC, 2014 U.S. Dist. LEXIS 123937 (E.D. Pa. Sept. 4, 2014): This case raises the question of whether a lawyer [Mr. Lee], who is not admitted to practice in the Eastern District of Pennsylvania ("E.D.…
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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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