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

Email Authentication — Emails Produced in Discovery when Offered by Party Opponent Deemed Authentic

Frehner v. Clark Cnty. School Dist., 2014 U.S. Dist. LEXIS 44788 (D. Nev. Mar. 31, 2014): Footnote 4   Frehner submitted copies of purported e-mails between he and various officials with the Nevada Department of Education ("NDOE") in August 2011 and May 2012 concerning his department assignment. (Frehner Ex. 7, Dkt. No. 33 ...
Frehner v. Clark Cnty. School Dist., 2014 U.S. Dist. LEXIS 44788 (D. Nev. Mar. 31, 2014): Footnote 4   Frehner submitted copies of purported e-mails between he and various officials with the Nevada Department of Education ("NDOE") in August 2011 and…
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Spoliation — Dismissal Factors and Weighting — Bad Faith — Ninth Circuit Standards

Volcan Grp., Inc. v. Omnipoint Commc’ns, Inc., 2014 U.S. App. LEXIS 451 (9th Cir. Jan. 9, 2014): Volcan Group, Inc. d/b/a Netlogix ("Netlogix") appeals the district court's dismissal of its breach of contract action against T-Mobile USA, Inc. ("T-Mobile") as a sanction for Netlogix's spoliation and fabri ...
Volcan Grp., Inc. v. Omnipoint Commc’ns, Inc., 2014 U.S. App. LEXIS 451 (9th Cir. Jan. 9, 2014): Volcan Group, Inc. d/b/a Netlogix ("Netlogix") appeals the district court's dismissal of its breach of contract action against T-Mobile USA, Inc. ("T-Mobile") as…
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Are Attorneys’ Fees Includable in a Bond Issued under Federal Rule of Appellate Procedure 7? — Circuit Split — Potential Fed.R.App.P. 38 Sanctions for Frivolous Appeal Are Not Includable within Bond

Rossi v. Proctor & Gamble Co., 2014 U.S. Dist. LEXIS 34180 (D.N.J. Mar. 17, 2014): 1.  Attorneys' Fees Circuits are split on the question of whether or not to include attorneys' fees in a bond issued under Federal Rule of Appellate Procedure 7. See Azizian v. Fede ...
Rossi v. Proctor & Gamble Co., 2014 U.S. Dist. LEXIS 34180 (D.N.J. Mar. 17, 2014): 1.  Attorneys' Fees Circuits are split on the question of whether or not to include attorneys' fees in a bond issued under Federal Rule of …
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Rule 11 — Even If Compliance with Safe Harbor Is Factually Impossible, Non-Compliance Dictates Denial of Motion (So Don’t Use Rule 11 in These Circumstances)

Islamic Shura Council of S. Cal. v. FBI, 2014 U.S. App. LEXIS 5175 (9th Cir. Mar. 18, 2014): The Federal Bureau of Investigation ("FBI") appeals the district court's order granting the Islamic Shura Council of Southern California's ("Shura Council") motion for sanctions under Federal Rule of Civil Procedure ...
Islamic Shura Council of S. Cal. v. FBI, 2014 U.S. App. LEXIS 5175 (9th Cir. Mar. 18, 2014): The Federal Bureau of Investigation ("FBI") appeals the district court's order granting the Islamic Shura Council of Southern California's ("Shura Council") motion…
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Email Evidence — Unprivileged Email from Counsel to Client Encapsulating Client’s Statements Admissible against Client as Agent Admission under Rule 801(d)(2)

Reardon v. Boylan, 2014 Mass. App. Unpub. LEXIS 331 (Mass. Ct. App. Mar. 17, 2014): This is a legal malpractice action in which the plaintiff, Robert M. Reardon, alleged that he suffered significant damages by relying on advice that his former counsel, Paul G. Boylan, had provided. After a seven-day trial in Superior Court, a jury rul ...
Reardon v. Boylan, 2014 Mass. App. Unpub. LEXIS 331 (Mass. Ct. App. Mar. 17, 2014): This is a legal malpractice action in which the plaintiff, Robert M. Reardon, alleged that he suffered significant damages by relying on advice that his…
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FRAP 38 Sanctions — Not Just for Frivolousness But Also for “Blatant Misrepresentations” — Good Quotes: (1) Weak, “Almost Hopeless” ≠ Frivolous, (2) Sleeping on One’s Rights and (3) Pointlessness of Epithets in Court Filings

Candelario-Del-Moral v. UBS Fin’l Servs. Inc. (In re Efron), 2014 U.S. App. LEXIS 5322 (1st Cir. Mar. 21, 2014): For over four centuries, persons learned in the law have known that, when litigation is in prospect, vigilance is good and somnolence is bad. Commentators and courts have phrased this sentiment in different ways. See, e.g ...
Candelario-Del-Moral v. UBS Fin’l Servs. Inc. (In re Efron), 2014 U.S. App. LEXIS 5322 (1st Cir. Mar. 21, 2014): For over four centuries, persons learned in the law have known that, when litigation is in prospect, vigilance is good and…
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Website Evidence — Hearsay — Admissibility under Business Records (Rule 803(6)) and Commercial List (803(17)) Exceptions (Case Law Splits) — Authentication Issues

Southco, Inc. v. Fivetech Tech., Inc., 2013 U.S. Dist. LEXIS 161489, 109 U.S.P.Q.2D (BNA) 1763 (E.D. Pa. Nov. 12, 2013): Internet websites and web postings are also typically inadmissible as hearsay. United States v. Jackson, 208 F.3d 633, 637-38 (7th Cir. 2000). Although some commentators have argued that websites could be ad ...
Southco, Inc. v. Fivetech Tech., Inc., 2013 U.S. Dist. LEXIS 161489, 109 U.S.P.Q.2D (BNA) 1763 (E.D. Pa. Nov. 12, 2013): Internet websites and web postings are also typically inadmissible as hearsay. United States v. Jackson, 208 F.3d 633, 637-38 (7th…
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Sanctions — Reputational Impact (Good Quotes) — Inherent Power — Need for Restraint Is Greatest in Criminal Cases — Meaning of Candid / Candor

In re Plaza-Martinez, 2014 U.S. App. LEXIS 5555 (1st Cir. Mar. 26, 2014): We turn next to the merits. The court below did not describe the basis of its authority for imposing the challenged sanction, but the circumstances make plain that the sanction was imposed under its inherent power. See United Sta ...
In re Plaza-Martinez, 2014 U.S. App. LEXIS 5555 (1st Cir. Mar. 26, 2014): We turn next to the merits. The court below did not describe the basis of its authority for imposing the challenged sanction, but the circumstances make…
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Circumstantial Authentication of Texts and Emails (Rule 901(b)(4))—Indiana Adopts Tienda / Parker Approach—For Voice ID (R. 901(b)(5)), Only “Minimal Familiarity” Required—All Decided under 104(a)—Strictures of R. 701 Inapt

Pavlovich v. State, 2014 Ind. App. LEXIS 127 (Ind. Ct. App. Mar. 28, 2014): The second issue is whether the trial court erroneously admitted the text and email communications between Pugh and Detective Odier and the  [*12] 2662 number and the "golfnutmi" email address while allowing the State to identify th ...
Pavlovich v. State, 2014 Ind. App. LEXIS 127 (Ind. Ct. App. Mar. 28, 2014): The second issue is whether the trial court erroneously admitted the text and email communications between Pugh and Detective Odier and the  [*12] 2662 number and…
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Printout Offered to Show What Appears on Website ≠ Hearsay — 403 Unfair Prejudice Prong “Unnecessary and Useless” in Bench Trial — Internet Search Results or Snippets without Context May Be of Minimal Relevance — Good Quotes

Invisible Fences, Inc. v. Fido’s Fences, Inc., 2014 U.S. Dist. LEXIS 16663 (E.D. Tenn. Feb. 11, 2014): The Court finds the following from Foreword Magazine, Inc. v. OverDrive, Inc., No. 1:10-cv-1144, 2011 WL 5169384, at *4 (W.D. Mich. Oct. 31, 2011)persuasive: "[T]hese exhibits [screen shots of websites] are o ...
Invisible Fences, Inc. v. Fido’s Fences, Inc., 2014 U.S. Dist. LEXIS 16663 (E.D. Tenn. Feb. 11, 2014): The Court finds the following from Foreword Magazine, Inc. v. OverDrive, Inc., No. 1:10-cv-1144, 2011 WL 5169384, at *4 (W.D. Mich. Oct. 31,…
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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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