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

$1 Million Sanction for Contempt, Bad Faith, § 1927, Despite Inability to Determine Precisely What Excess Litigation Was Caused (Good Quotes)

Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 979 F. Supp. 2d 1270 (M.D. Fla. 2013): This action between Odyssey Marine Exploration and the Kingdom of Spain adjudicates the right to possession and ownership of more than $600,000,000.00 in silver specie.1 This action presented from the ...
Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 979 F. Supp. 2d 1270 (M.D. Fla. 2013): This action between Odyssey Marine Exploration and the Kingdom of Spain adjudicates the right to possession and ownership of more than $600,000,000.00 in silver …
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Statement of Fact Made During Settlement Discussions via Email Admissible as Admission of Party Opponent and Not Precluded by Settlement-Negotiating Context

Ride, Inc. v. APS Tech., Inc., 2014 U.S. Dist. LEXIS 44484 (D. Conn. Mar. 31, 2014): 11   Plaintiffs assert that defendants' Ex. J is inadmissible evidence because it is a "statement[ ] made during compromise negotiations about the claim." Pls.' L.R. 56(a)2 Stmt. at § I, ¶ 14. While " ...
Ride, Inc. v. APS Tech., Inc., 2014 U.S. Dist. LEXIS 44484 (D. Conn. Mar. 31, 2014): 11   Plaintiffs assert that defendants' Ex. J is inadmissible evidence because it is a "statement[ ] made during compromise negotiations about the claim."…
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Federal Court May Take Judicial Notice of State and Federal Dockets Available on the Internet

Barger v. Warden, 2014 U.S. Dist. LEXIS 26416 (C.D. Cal. Feb. 28, 2014): Petitioner's relevant state court records 1 establish the following facts. He was sentenced for the above offenses on July 2, 2007. On December 23, 2008, the California Court of Appeal affirmed the judgment (case no. B200472). The California Suprem ...
Barger v. Warden, 2014 U.S. Dist. LEXIS 26416 (C.D. Cal. Feb. 28, 2014): Petitioner's relevant state court records 1 establish the following facts. He was sentenced for the above offenses on July 2, 2007. On December 23, 2008, the California…
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Rule 11 — Finding of Factual Frivolousness Requires that No Evidence, or Only Patently Frivolous Evidence, Is Offered to Support a Claim — Any Evidence, Even If Weak or Self-Serving, Precludes Sanctions

Lawson v. Sec’y, Dep’t of Corr., 2014 U.S. App. LEXIS 7199 (11th Cir. April 17, 2014): Ross Lawson, proceeding pro se, has filed a motion to reconsider this court's order dated November 14, 2013, denying his motion for an injunction pending appeal.1 He also appeals the district court's dismissal of his 42 U.S.C. ...
Lawson v. Sec’y, Dep’t of Corr., 2014 U.S. App. LEXIS 7199 (11th Cir. April 17, 2014): Ross Lawson, proceeding pro se, has filed a motion to reconsider this court's order dated November 14, 2013, denying his motion for an injunction…
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RICO — Closed-End Continuity = at Least 2 Years — Open-End Not Shown by Fact the Enterprise Primarily Conducts a Legitimate Business Where the Nature of the Predicate Acts Do Not Imply a Continuing Threat Because All Are Directed at a Finite Goal

W&D Imports, Inc. v. Lia, 2014 U.S. App. LEXIS 7038 (2d Cir. April 16, 2014): Plaintiffs-Appellants W&D Imports,  [*2] Inc. d/b/a Willis Honda and David Davis (together "Willis") appeal from the April 23, 2013 judgment of the District Court dismissing all of Willis's claims against American Honda Motor ...
W&D Imports, Inc. v. Lia, 2014 U.S. App. LEXIS 7038 (2d Cir. April 16, 2014): Plaintiffs-Appellants W&D Imports,  [*2] Inc. d/b/a Willis Honda and David Davis (together "Willis") appeal from the April 23, 2013 judgment of the District Court dismissing…
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Text Messages — Circumstantial Evidence of Authenticity — Mere Possession of Device, Standing Alone, Insufficient to Show That Possessor Authored Messages Earlier Issued from Device

State of Missouri v. Francis, 2014 Mo. App. LEXIS 473 (Mo. Ct. App. April 29, 2014): First and foremost is the fundamental failure of the State to establish at trial that the outgoing text messages were written by Appellant. This failure is accentuated by the modern authority on admissions by a party opponent, particu ...
State of Missouri v. Francis, 2014 Mo. App. LEXIS 473 (Mo. Ct. App. April 29, 2014): First and foremost is the fundamental failure of the State to establish at trial that the outgoing text messages were written by Appellant. This…
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Importance of Considering Lesser Sanctions Where Central Blame Lay with Strategic Decisions of Counsel — General Inappropriateness of Penalizing Blameless Client for Attorney’s Behavior (Good Quotes)

Flores v. Ethicon, Inc., 2014 U.S. App. LEXIS 5751 (4th Cir. Mar. 28, 2014) (Wynn, J., concurring that the district court acted within its discretion in dismissing the case without prejudice as a sanction for Plaintiffs' refusal to comply with the district court's pretrial discovery procedures, but dissenting from the lower court’s denial of Pl ...
Flores v. Ethicon, Inc., 2014 U.S. App. LEXIS 5751 (4th Cir. Mar. 28, 2014) (Wynn, J., concurring that the district court acted within its discretion in dismissing the case without prejudice as a sanction for Plaintiffs' refusal to comply with…
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Sanctions — Rule 11 Inapplicable to Discovery — Applicable Rules and § 1927 Trump Inherent Power — Elements of a § 1927 Violation

Hilburn v. Bayonne Parking Auth., 2014 U.S. App. LEXIS 6246 (3d Cir. April 4, 2014): Peter Hilburn and Felicia  [*2] Ryan appeal from the District Court's order granting Appellees' Motion for Summary Judgment and imposing sanctions. Specifically, Appellants argue that they presented sufficient evidence to sur ...
Hilburn v. Bayonne Parking Auth., 2014 U.S. App. LEXIS 6246 (3d Cir. April 4, 2014): Peter Hilburn and Felicia  [*2] Ryan appeal from the District Court's order granting Appellees' Motion for Summary Judgment and imposing sanctions. Specifically, Appellants argue that…
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Disqualification — Despite Lack of Subject Matter Jurisdiction, Court May Disqualify Counsel — Potential for Abuse Lower If Motion Brought by Former Client — Appeals Court May Sua Sponte Judicially Notice Related Case Filings

Zerger & Mauer LLP, 2014 U.S. App. LEXIS 10060 (8th Cir. May 30, 2014): This appeal is a companion to Baker v. Martin Marietta Materials, Inc., 745 F.3d 919 (8th Cir. 2014). In Baker, we determined that the district court lacked subject-matter jurisdiction over the merits and reversed the district court's jurisdictional r ...
Zerger & Mauer LLP, 2014 U.S. App. LEXIS 10060 (8th Cir. May 30, 2014): This appeal is a companion to Baker v. Martin Marietta Materials, Inc., 745 F.3d 919 (8th Cir. 2014). In Baker, we determined that the district court…
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Judicial Notice of Internet Evidence — Online State Licensing Records Properly Subject to Judicial Notice

Sterling Trust v. Edwards, 2014 Cal. App. Unpub. LEXIS 2885 (Cal. Ct. App. April 23, 2014): In his declaration filed in support of the motion for summary judgment Hensel stated that he was "the President of Hensel  [*13] Financial" and that "Hensel Financial has been, and is still, licensed as a Califo ...
Sterling Trust v. Edwards, 2014 Cal. App. Unpub. LEXIS 2885 (Cal. Ct. App. April 23, 2014): In his declaration filed in support of the motion for summary judgment Hensel stated that he was "the President of Hensel  [*13] Financial" and…
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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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