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

Supreme Court—Sanctions—§285 Looks to Totality of Circumstances—A Case “Stands Out” If Weak or Unreasonably Litigated—Some Factors: Frivolousness, Motivation, Need to Compensate, Deter—Objective Baselessness or Bad Faith May Be Enough

Octane Fitness, LLC v. ICON Health & Fitness, Inc., 2014 U.S. LEXIS 3107 (U.S. April 29, 2014): Section 285 of the Patent Act authorizes a district court to award attorney's fees in patent litigation. It provides, in its entirety, that "[t]he court in exceptional cases may award reasonable attorney  [*5] fees to the prevaili ...
Octane Fitness, LLC v. ICON Health & Fitness, Inc., 2014 U.S. LEXIS 3107 (U.S. April 29, 2014): Section 285 of the Patent Act authorizes a district court to award attorney's fees in patent litigation. It provides, in its entirety, that…
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Judicial Notice of Internet Evidence — Court May Take Judicial Notice of Online State Court Records and Its Own Records in Other Cases

Beltran v. Brazelton, 2014 U.S. Dist. LEXIS 53243 (C.D. Cal. April 15, 2014): 1   The Court takes judicial notice of Internet records relating to this action in the state appellate courts (available at http://appellatecases.courtinfo.ca.gov) ("state court records"). See Smith ...
Beltran v. Brazelton, 2014 U.S. Dist. LEXIS 53243 (C.D. Cal. April 15, 2014): 1   The Court takes judicial notice of Internet records relating to this action in the state appellate courts (available at http://appellatecases.courtinfo.ca.gov) ("state court records"). See Smith v.…
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Disqualification — Lawyer as Unsworn Witness, Overtly Relying on Firsthand Knowledge of Events at Trial, Is Subject to Disqualification

United States v. White, 545 Fed. App’x 69 (2d Cir. 2013): Under certain circumstances, an attorney who has "first-hand knowledge of the events presented at trial" may impermissibly act as an unsworn witness. United States v. Locascio, 6 F.3d 924, 933 (2d Cir. 1993); see also Ciak v. United Sta ...
United States v. White, 545 Fed. App’x 69 (2d Cir. 2013): Under certain circumstances, an attorney who has "first-hand knowledge of the events presented at trial" may impermissibly act as an unsworn witness. United States v. Locascio, 6 F.3d…
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Wayback Machine — Testimony of Witness with Knowledge of How Internet Archive Works Required for Authentication — Testimony from Creators of Sites as to How They Looked Years Earlier Inadequate to Authenticate Archived Pages

Specht v. Google, Inc., 2014 U.S. App. LEXIS 6318 (7th Cir. April 4, 2014) (affirming the decision excerpted in our blog post of June 25, 2011): During the dot-com boom of the 1990s, Erich Specht founded Android Data Corporation, and registered the "Android Data" trademark. The company ceased principal operations in 2002, bu ...
Specht v. Google, Inc., 2014 U.S. App. LEXIS 6318 (7th Cir. April 4, 2014) (affirming the decision excerpted in our blog post of June 25, 2011): During the dot-com boom of the 1990s, Erich Specht founded Android Data Corporation, and…
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RICO Extraterritoriality — RICO Applies Extraterritorially If and Only If Relevant RICO Predicate Applies Extraterritorially — Mere Reference to “Foreign Commerce” Insufficient

European Community v. RJR Nabisco, Inc., 2014 U.S. App. LEXIS 7593 (2d Cir. April 23, 2014): This is the latest installment in litigation brought by the European Community and twenty-six of its member states (collectively "Plaintiffs") against RJR Nabisco, Inc., and related entities (collectively "RJR"). Plaintiffs ...
European Community v. RJR Nabisco, Inc., 2014 U.S. App. LEXIS 7593 (2d Cir. April 23, 2014): This is the latest installment in litigation brought by the European Community and twenty-six of its member states (collectively "Plaintiffs") against RJR Nabisco, Inc.,…
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Monetary Sanctions Improperly Awarded Sua Sponte under Rule 11 Affirmed under § 1927

Mohtadi v. Homecomings Fin’l, LLC, 2014 U.S. App. LEXIS 2474 (9th Cir. Feb. 10, 2014): Sanctions were warranted. Rule 11, however, does not allow the district court to impose sanctions payable to a party on the basis of a sua sponte show cause order. See Fed. R. Civ. P. 11(c)(4); Advisory Committee's Notes to the 1993 Am ...
Mohtadi v. Homecomings Fin’l, LLC, 2014 U.S. App. LEXIS 2474 (9th Cir. Feb. 10, 2014): Sanctions were warranted. Rule 11, however, does not allow the district court to impose sanctions payable to a party on the basis of a sua …
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Attorney-Client Privilege — Perlman Applies Outside of Grand Jury Context (Circuit Split) — Interlocutory Appellant Must Be a Non-Litigant — Fed.R.Evid. 410 Does Not Create a Privilege against Discovery of Plea Negotiations

Doe v. United States, 2014 U.S. App. LEXIS 7283 (11th Cir. April 18, 2014): This appeal requires us to decide two issues: whether we have jurisdiction over an interlocutory appeal by criminal defense attorneys and their client who intervened in a proceeding ancillary to a criminal investigation to claim a privilege that would ...
Doe v. United States, 2014 U.S. App. LEXIS 7283 (11th Cir. April 18, 2014): This appeal requires us to decide two issues: whether we have jurisdiction over an interlocutory appeal by criminal defense attorneys and their client who intervened in …
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Facebook Authentication — Admission Erroneous Where Foundational Testimony Failed to Tie Defendant to His Facebook Page and Messages — Circumstantial Evidence Test Applied

Smith v. State, 2014 Miss. LEXIS 209 (Miss. Sup. Ct. April 17, 2014): P1. Scott Smith was convicted of capital murder for the death of seventeen-month-old Ally Waldrop and sentenced to life without the possibility of parole. Smith appealed his conviction to the Court of Appeals, arguing that the trial court erred in admitting ...
Smith v. State, 2014 Miss. LEXIS 209 (Miss. Sup. Ct. April 17, 2014): P1. Scott Smith was convicted of capital murder for the death of seventeen-month-old Ally Waldrop and sentenced to life without the possibility of parole. Smith appealed his …
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§ 1927 Sanctions — Attorney Who Files a Frivolous Appeal Remains Subject to Sanction under § 1927 Even If Suspended from Practice and Forced to Proceed Pro Se during Pendency of Appeal

Yan v. Fu, 2014 U.S. App. LEXIS 5062 (9th Cir. Mar. 18, 2014): Appellees filed a motion under Federal Rule of Appellate Procedure 38 and 28 U.S.C. § 1927 requesting that we impose sanctions on Yan, an attorney, for filing a frivolous appeal. We grant Appellees' motion for sanctions for filing a frivolous appeal pursuant to Rule 3 ...
Yan v. Fu, 2014 U.S. App. LEXIS 5062 (9th Cir. Mar. 18, 2014): Appellees filed a motion under Federal Rule of Appellate Procedure 38 and 28 U.S.C. § 1927 requesting that we impose sanctions on Yan, an attorney, for filing…
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Spoliation — Fifth Circuit Requires Bad Faith as Prerequisite to Adverse Inference Instruction

Clayton v. Columbia Cas. Co., 2013 U.S. App. LEXIS 23969 (5th Cir. Nov. 26, 2013): A finding of spoliation requires the "bad faith" destruction of evidence relevant to the litigation. Condrey v. SunTrust Bank of Ga., 431 F.3d 191, 203 (5th Cir. 2005) ("The Fifth Circuit permits an adver ...
Clayton v. Columbia Cas. Co., 2013 U.S. App. LEXIS 23969 (5th Cir. Nov. 26, 2013): A finding of spoliation requires the "bad faith" destruction of evidence relevant to the litigation. Condrey v. SunTrust Bank of Ga., 431 F.3d 191,…
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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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