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 — Public Records as Reflected on Another Court’s Website or on Westlaw

Brooks v. Bergh, 2014 U.S. Dist. LEXIS 97059 (E.D. Mich. July 17, 2014): 1   Petitioner does not indicate in his pleadings that he ever appealed the denial of his post-conviction motion for relief from judgment to the Michigan appellate courts. Petitioner also did not provide this Court with a complete copy of the Berrien County Cir ...
Brooks v. Bergh, 2014 U.S. Dist. LEXIS 97059 (E.D. Mich. July 17, 2014): 1   Petitioner does not indicate in his pleadings that he ever appealed the denial of his post-conviction motion for relief from judgment to the Michigan appellate courts.…
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Rule 37 Sanctions — Directing Facts Be Taken As Established Doesn’t Require Willfulness or Bad Faith — Examples of Sufficient Circumstantial Evidence of Willful Discovery Failures

Coquina Investments v. TD Bank, N.A., 2014 U.S. App. LEXIS 14388 (11th Cir. July 29, 2014): D. Post-trial discovery sanctions Multiple problems with TD Bank's discovery came to light during and after the trial. For example: 1) TD Bank's Federal Rule of Civil Procedure 30(b)(6) designee testified before trial that ...
Coquina Investments v. TD Bank, N.A., 2014 U.S. App. LEXIS 14388 (11th Cir. July 29, 2014): D. Post-trial discovery sanctions Multiple problems with TD Bank's discovery came to light during and after the trial. For example: 1) TD Bank's Federal…
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Morrison’s Ban on Extraterritorial Application of Securities Laws Precludes Claims Arising out of Foreign-Issued Securities Cross-Listed on a U.S. Exchange

City of Pontiac Policemen’s & Firemen’s Retirement Sys. V. UBS AG, 752 F.3d 173 (2d Cir. 2014): In this appeal we consider, as a matter of first impression, whether the bar on extraterritorial application of the United States securities laws, as set forth in Morrison v. National Australia Bank Ltd. ...
City of Pontiac Policemen’s & Firemen’s Retirement Sys. V. UBS AG, 752 F.3d 173 (2d Cir. 2014): In this appeal we consider, as a matter of first impression, whether the bar on extraterritorial application of the United States securities…
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Internet and Email Evidence — Circumstantial Evidence Sufficient to Show Authorship of Reviews Posted on Web and of Emails

Judge v. Randell, 2014 Cal. App. Unpub. LEXIS 4767 (Cal. Ct. App. July 7, 2014): Lori Randell (Randell) appeals from an order denying her motion to strike a defamation cause of action from the complaint of respondent, Gregory Judge (Judge), pursuant to the "anti-SLAPP" statute. (Code Civ. Proc., 425.16 (section 425.16
Judge v. Randell, 2014 Cal. App. Unpub. LEXIS 4767 (Cal. Ct. App. July 7, 2014): Lori Randell (Randell) appeals from an order denying her motion to strike a defamation cause of action from the complaint of respondent, Gregory Judge (Judge),…
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RICO — Lexmark Rejects “Statutory Standing” for Statutory Analysis Whether Plaintiff Is Intended Beneficiary — Evidence of Bribery of Blagojevich Sufficient to Establish Proximate Cause

Empress Casino Joliet Corp. v Johnston, 2014 U.S. App. LEXIS 15713 (7th Cir. Aug. 15, 2014): Deals are the stuff of legislating. Although logrolling may appear unseemly some of the time, it is not, by itself, illegal. Bribes are. This case requires us once again to decide whether some shenanigans in the Illinois General Assemb ...
Empress Casino Joliet Corp. v Johnston, 2014 U.S. App. LEXIS 15713 (7th Cir. Aug. 15, 2014): Deals are the stuff of legislating. Although logrolling may appear unseemly some of the time, it is not, by itself, illegal. Bribes are. This …
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Fugitive Disentitlement Doctrine Narrowly Applied in Civil Cases — “Necessity” Vital — Indignity, Deterrence Inapt — Prejudice, Delay, Frustration, Unenforceability of Judgment Key — Dodging Prosecution Not Enough

Mastro v. Rigby, 2014 U.S. App. LEXIS 16255 (9th Cir. August 22, 2014): I. James Rigby (the "Trustee"), in his capacity as Trustee for the Chapter 7 bankruptcy estate of Linda's husband, Michael Mastro ("Michael"), filed an adversary proceeding against Linda. The Trustee alleged, int ...
Mastro v. Rigby, 2014 U.S. App. LEXIS 16255 (9th Cir. August 22, 2014): I. James Rigby (the "Trustee"), in his capacity as Trustee for the Chapter 7 bankruptcy estate of Linda's husband, Michael Mastro ("Michael"), filed an adversary proceeding…
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The Risk of Deposing Unretained Experts (They Can Testify Despite Inadequte Disclosures) — Hybrid Witnesses and Rule 26(a)(2)(C)

Burreson v. BASF Corp., 2014 U.S. Dist. LEXIS 117590 (E.D. Cal. Aug. 22, 2014): The disclosure requirements of Rule 26(a)(2)(B) have, at times, led to tension regarding when disclosure is triggered. In Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 826 (9th Cir. 2011), the Ninth Circuit addressed the si ...
Burreson v. BASF Corp., 2014 U.S. Dist. LEXIS 117590 (E.D. Cal. Aug. 22, 2014): The disclosure requirements of Rule 26(a)(2)(B) have, at times, led to tension regarding when disclosure is triggered. In Goodman v. Staples The Office Superstore, LLC, 644…
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RICO — Statute of Limitations Accrues When Plaintiff Is Aware of Its Injury, Even If Not the Identity of the Wrongdoer — Must Exercise Diligence to Determine Identity and Commence Suit within 4 Years

Rob’t L. Kroenlein Trust v. Kirchhefer, 2014 U.S. App. LEXIS 16296 (10th Cir. Aug. 25, 2014): The Robert L. Kroenlein Trust owns and operates J&B Liquors, a business in Torrington, Wyoming. In 2005, a salesman for one of J&B's beer distributors, Gary Kirchhefer, began stealing beer from J&B's account and reselling th ...
Rob’t L. Kroenlein Trust v. Kirchhefer, 2014 U.S. App. LEXIS 16296 (10th Cir. Aug. 25, 2014): The Robert L. Kroenlein Trust owns and operates J&B Liquors, a business in Torrington, Wyoming. In 2005, a salesman for one of J&B's beer …
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Contractual Duty to “Reimburse” Attorneys’ Fees “Incurred” by Victorious Party Doesn’t Require Payment of Fees That New Employer Agreed to Cover for Employee-Defendants — Contract ≠ Rule 37 / Statutes or Rules Generally (Good Quotes)

TruGreen Cos., LLC v. Mower Bros., Inc., 2014 U.S. App. LEXIS 12513 (10th Cir. July 2, 2014): Back in 2006 TruGreen managers felt betrayed when a handful of employees left to work for a rival lawn care company. TruGreen sued, charging its former employees with breaching their employment contracts. In the end, the company lost that cla ...
TruGreen Cos., LLC v. Mower Bros., Inc., 2014 U.S. App. LEXIS 12513 (10th Cir. July 2, 2014): Back in 2006 TruGreen managers felt betrayed when a handful of employees left to work for a rival lawn care company. TruGreen sued,…
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Inherent Power Sanctions — 2-Pronged Test: Baselessness and Bad Faith — Meritless Motion for Reconsideration Containing Unsupported Attacks on Opponent

Smith v. Westchester Cnty. Dep’t of Corr., 2014 U.S. App. LEXIS 16494 (2d Cir. Aug. 26, 2014): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,$ ADJUDGED AND DECREED that the judgment of the district court be and hereby is AFFIRMED. Appellant Michael A. Deem appeals from orders dated September ...
Smith v. Westchester Cnty. Dep’t of Corr., 2014 U.S. App. LEXIS 16494 (2d Cir. Aug. 26, 2014): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,$ ADJUDGED AND DECREED that the judgment of the district court be and hereby is AFFIRMED. Appellant…
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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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