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

Does a Magistrate Judge Have Authority to Deny a Motion to Amend a Complaint If Denial Effectively Dismisses Certain Claims (E.g., Because Statute of Limitations Has Expired)? Case Law Split

Duncan v. City of N.Y., 2014 U.S. Dist. LEXIS 96214 (E.D.N.Y. July 15, 2014): Plaintiff Shamaine Duncan ("Duncan") seeks leave to file a Fourth Amended Complaint in order to substitute the name of police officer Richard Dinkle ("Dinkle") for that of one of the "John Doe" defendants. See D ...
Duncan v. City of N.Y., 2014 U.S. Dist. LEXIS 96214 (E.D.N.Y. July 15, 2014): Plaintiff Shamaine Duncan ("Duncan") seeks leave to file a Fourth Amended Complaint in order to substitute the name of police officer Richard Dinkle ("Dinkle") for that …
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Judicial Estoppel — Majority Rule — Prior Success, Clear Inconsistency and Impact on Judicial Integrity Requirements

Crawford v. Franklin Credit Mgmt. Corp., 2014 U.S. App. LEXIS 13179 (2d Cir. July 11, 2014): "Judicial estoppel generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase." Pegram v. Herdrich, 530 U.S. 211, 227 n.8 ...
Crawford v. Franklin Credit Mgmt. Corp., 2014 U.S. App. LEXIS 13179 (2d Cir. July 11, 2014): "Judicial estoppel generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument …
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Rule 11: No Abuse of Discretion Not to Sanction Factual Inaccuracies in Pleadings Due to Clerical Mistake, Promptly Corrected when Discovered — Definition of Abuse of Discretion (Fifth Circuit)

White v. Cox, 2014 U.S. App. LEXIS 14021 (5th Cir. July 23, 2014): White's argument that sanctions should have been awarded pursuant to Rule 11 of the Federal Rules of Civil Procedure, as there were factual inaccuracies in the defendants' pleadings and the defendants willfully failed to locate a named defendant, does not estab ...
White v. Cox, 2014 U.S. App. LEXIS 14021 (5th Cir. July 23, 2014): White's argument that sanctions should have been awarded pursuant to Rule 11 of the Federal Rules of Civil Procedure, as there were factual inaccuracies in the defendants'…
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Surveillance Video Authentication via Circumstantial Evidence — Fact That Video Is Programmed to Skip a Few Seconds Intermittently Neither Renders It Inauthentic Nor Subject to 403 Exclusion

United States v. Cejas, 2014 U.S. App. LEXIS 14874 (7th Cir. 2014): A. Video Was Properly Authenticated We begin with Constantino and Nicholas's joint argument that the video showing them outside of Denny's residence on February 14, 2011 should not have been admitted at trial because the government did ...
United States v. Cejas, 2014 U.S. App. LEXIS 14874 (7th Cir. 2014): A. Video Was Properly Authenticated We begin with Constantino and Nicholas's joint argument that the video showing them outside of Denny's residence on February 14, 2011 should not…
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While Court Construes Pro Se Filings Broadly, It Does Not Act as Advocate (Good Quote) — Rule 37 Dismissal Sanction: Tenth Circuit Factors

Fischer v. Dunning, 2014 U.S. App. LEXIS 14641 (10th Cir. July 31, 2014): Michael Fischer claims several officials of a state correctional facility, where Fischer is currently serving time, were deliberately  [*2] indifferent to his medical needs in violation of the Eighth Amendment. But, because Fischer repeatedly r ...
Fischer v. Dunning, 2014 U.S. App. LEXIS 14641 (10th Cir. July 31, 2014): Michael Fischer claims several officials of a state correctional facility, where Fischer is currently serving time, were deliberately  [*2] indifferent to his medical needs in violation of…
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Nonparty Invocation of 5th Amendment — Settlements as Damages — Severe Sanctions Absent Willfulness — RICO Continuity = Period Predicates Occurred — Good Quotes on Judge Changing Mind, Prejudice

Coquina Inv. v. TD Bank, N.A., 2014 U.S. App. LEXIS 14388 (11th Cir. July 29, 2014): This case arises out of the billion-dollar Ponzi scheme perpetrated by Scott Rothstein. Plaintiff Coquina Investments ("Coquina") invested with Rothstein and lost over $6.7 million when his scheme collapsed. Defendant TD Bank, N.A. ("TD ...
Coquina Inv. v. TD Bank, N.A., 2014 U.S. App. LEXIS 14388 (11th Cir. July 29, 2014): This case arises out of the billion-dollar Ponzi scheme perpetrated by Scott Rothstein. Plaintiff Coquina Investments ("Coquina") invested with Rothstein and lost over $6.7…
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§ 1927 Sanctions — Continuing to Litigate Claims after Adverse Party Offers to Provide the Only Relief to Which Claimant Is Entitled Merits Sanction

Milner v. Biggs, 2014 U.S. App. LEXIS 9075 (6th Cir. May 13, 2014): In the underlying case, plaintiffs-appellants Jason A. Milner, Natasha M. Milner, and Lexi Milner retained Jason Shugart as counsel after discovering mold in a home approximately four weeks after they purchased it. On behalf of the Milners, Shugart  [*2]
Milner v. Biggs, 2014 U.S. App. LEXIS 9075 (6th Cir. May 13, 2014): In the underlying case, plaintiffs-appellants Jason A. Milner, Natasha M. Milner, and Lexi Milner retained Jason Shugart as counsel after discovering mold in a home approximately four…
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General Propositions Do Not Decide Concrete Cases (Good Quote)

United States v. Threadgill, 2014 U.S. App. LEXIS 13377 (6th Cir. July 11, 2014): This statement of the law may be correct as a general proposition, but "[g]eneral propositions do not decide concrete cases," Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting). ...
United States v. Threadgill, 2014 U.S. App. LEXIS 13377 (6th Cir. July 11, 2014): This statement of the law may be correct as a general proposition, but "[g]eneral propositions do not decide concrete cases," Lochner v. New York, 198…
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RICO — Deprivation of Honest Services, Alone, ≠ Concrete Injury to Business or Property Sufficient to Confer RICO Standing

Portfolio Invs. LLC v. First Sav. Bank Nw., 2014 U.S. App. LEXIS 14361 (9th Cir. July 28, 2014): Plaintiffs--appellants Portfolio Investments LLC, Stephen Nikolich, and Stephen's wife, Marcia Nikolich (collectively "Portfolio"), appeal from the district court's dismissal of their amended complaint with prejudice for ...
Portfolio Invs. LLC v. First Sav. Bank Nw., 2014 U.S. App. LEXIS 14361 (9th Cir. July 28, 2014): Plaintiffs–appellants Portfolio Investments LLC, Stephen Nikolich, and Stephen's wife, Marcia Nikolich (collectively "Portfolio"), appeal from the district court's dismissal of their amended…
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Text Messages — Authentication by One Party to Discussion — No Best Evidence Problem Converting Texts to Emails for Printing and Submission to Court — 12(f) Motion to Strike “Drastic,” Disfavored

Greco v. Velvet Cactus, LLC, 2014 U.S. Dist. LEXIS 87778 (E.D. La. June 27, 2014): Plaintiff Joseph Greco moves to strike a number of exhibits attached to the motions for summary judgment of defendants Velvet Cactus, LLC and Scott Dickinson. Greco also moves to strike certain statements in defendants' statements of uncontested mat ...
Greco v. Velvet Cactus, LLC, 2014 U.S. Dist. LEXIS 87778 (E.D. La. June 27, 2014): Plaintiff Joseph Greco moves to strike a number of exhibits attached to the motions for summary judgment of defendants Velvet Cactus, LLC and Scott Dickinson.…
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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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