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

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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Summary Judgment — Failure to Diligently Pursue Discovery in the Past Is a Reason to Deny Further Discovery — Noncompliance with Rule 56(d) Also Warrants Denial of Request for Further Discovery

Long v. Playboy Enters. Int’l, Inc., 2014 U.S. App. LEXIS 5483 (9th Cir. Mar. 25, 2014): Nor did the district court err in rejecting Long's request for further discovery in order to authenticate screenshots from web sites showing discriminatory pricing for the party. Long had several months to conduct further discovery b ...
Long v. Playboy Enters. Int’l, Inc., 2014 U.S. App. LEXIS 5483 (9th Cir. Mar. 25, 2014): Nor did the district court err in rejecting Long's request for further discovery in order to authenticate screenshots from web sites showing discriminatory pricing…
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RICO — Failure to Allege Racketeering Activity as Enumerated in 18 U.S.C. § 1961(1) Is Fatal to RICO Claim — List of Predicate Acts in Statute Is Exhaustive

Ghosh v. Uniti Bank, 2014 U.S. App. LEXIS 6146 (9th Cir. Mar. 31, 2014): We first address Ghosh's claims. A civil RICO plaintiff must allege a pattern of racketeering activity in order to state a claim under 18 U.S.C. § 1962. Sedima S.P.R.L. v. Imrex Co., Inc, 473 U.S. 479, 481-82 (1985). Ghosh and Investments, h ...
Ghosh v. Uniti Bank, 2014 U.S. App. LEXIS 6146 (9th Cir. Mar. 31, 2014): We first address Ghosh's claims. A civil RICO plaintiff must allege a pattern of racketeering activity in order to state a claim under 18 U.S.C. §…
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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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