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

Website Evidence / Pleading and Practice — Court May Not Take Judicial Notice of Website That Is Not Self-Authenticating on Dismissal Motion in Third Circuit — Authentication Required

McGown v. Silverman & Borenstein, PLLC, 2014 U.S. Dist. LEXIS 12823 (D. Del. Feb. 3, 2014): While McGown conclusorily states S&B is a "debt collector" in her Complaint, she further details collection activities undertaken by S&B including collection activities for Capital One and actions taken to collect the debt from McGown ...
McGown v. Silverman & Borenstein, PLLC, 2014 U.S. Dist. LEXIS 12823 (D. Del. Feb. 3, 2014): While McGown conclusorily states S&B is a "debt collector" in her Complaint, she further details collection activities undertaken by S&B including collection activities for…
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Facebook Evidence — Social Media Authentication — Delaware Adopts Texas Approach: Let the Jury Decide, Once the Trial Judge Determines That a Reasonable Jury Could Find the Social Network Evidence Authentic

Parker v. State, 2014 Del. LEXIS 49 (Del. Sup. Ct. Feb. 5, 2014): Defendant-below/Appellant, Tiffany Parker, appeals from a Superior Court jury conviction of Assault Second Degree. Parker claims that the Superior Court erred in admitting statements posted on her Facebook profile. The Superior Court admitted the evidence under ...
Parker v. State, 2014 Del. LEXIS 49 (Del. Sup. Ct. Feb. 5, 2014): Defendant-below/Appellant, Tiffany Parker, appeals from a Superior Court jury conviction of Assault Second Degree. Parker claims that the Superior Court erred in admitting statements posted on her …
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28 U.S.C. § 1782 — Eleventh Circuit Withdraws Opinion Holding that Foreign Arbitration Is a “Proceeding” for Which § 1782 Discovery May Be Obtained — But Has It?

Application of Consorcio Ecuatoriano de Telecoms. S.A., 2014 U.S. App. LEXIS 531 (11th Cir. Jan. 10, 2014) (note:  this opinion withdraws the opinion excerpted in our post of June 29, 2012): We sua sponte vacate the prior opinion in this case, issued on June 25, 2012 and published at 685 F.3d 987 (11th Cir. 2012), an ...
Application of Consorcio Ecuatoriano de Telecoms. S.A., 2014 U.S. App. LEXIS 531 (11th Cir. Jan. 10, 2014) (note:  this opinion withdraws the opinion excerpted in our post of June 29, 2012): We sua sponte vacate the prior opinion…
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Summary Charts at Trial — Summaries as Evidence vs. Summaries of Evidence — Do the Latter Go to the Jury?

United States v. Anekwu, 695 F.3d 967 (9th Cir. 2012): A. Anekwu argues that the district court erred in admitting the chart summarizing the foreign bank records, because summary charts cannot be admitted as evidence if the underlying records are admitted. We review a district court's admis ...
United States v. Anekwu, 695 F.3d 967 (9th Cir. 2012): A. Anekwu argues that the district court erred in admitting the chart summarizing the foreign bank records, because summary charts cannot be admitted as evidence if the underlying records …
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Judicial Notice of Internet Archive Evidence (Wayback Machine) and of Government Website Data

  Puerto Rico v. Shell Oil Co. (In re Methyl Tertiary Butyl Ether “MTBE” Prods. Liab. Litig.), 2013 U.S. Dist. LEXIS 181837, at *17-18 n. 65 (S.D.N.Y. Dec. 30, 2013): Moreover, a review of the EIA [Energy Information Administration] website reports would have revealed that Vitol S.A. was importing gasoline in Puerto Rico a ...
Puerto Rico v. Shell Oil Co. (In re Methyl Tertiary Butyl Ether “MTBE” Prods. Liab. Litig.), 2013 U.S. Dist. LEXIS 181837, at *17-18 n. 65 (S.D.N.Y. Dec. 30, 2013): Moreover, a review of the EIA [Energy Information Administration] website reports…
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2010 Expert Amendments — 9th Circuit Joins 10th and 11th: Only Draft Expert Reports and Communications with Counsel Are Protected — Special Salience of Advisory Committee Notes in Construing Rules — Implicit 1782 Ruling

Republic of Ecuador v. MacKay, 2014 U.S. App. LEXIS 1972 (9th Cir. Jan. 31, 2014) (note that the Ninth, Tenth and Eleventh Circuits, in the Ecuador cases, have all implictly ruled that 28 USC 1782 is available to gather evidence for international arbitration proceedings): Chevron Corporation and two of its expert witn ...
Republic of Ecuador v. MacKay, 2014 U.S. App. LEXIS 1972 (9th Cir. Jan. 31, 2014) (note that the Ninth, Tenth and Eleventh Circuits, in the Ecuador cases, have all implictly ruled that 28 USC 1782 is available to gather …
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Inherent Power Sanctions — Factors — Court Not Limited by Motion’s Grounds, May Sanction for Any Misconduct — Significance of Blameless Clients — Prejudice from Receiving Documents on Eve of Trial — Good Quotes

Projects Mgmt. Co. v. Dyncorp Int’l LLC, 2013 U.S. App. LEXIS 22443 (4th Cir. Nov. 5, 2013): Projects Management Company ("PMC") appeals from the district court's dismissal of its suit against DynCorp International LLC ("DynCorp"). The district court dismissed PMC's suit on two alternate grounds: first, ...
Projects Mgmt. Co. v. Dyncorp Int’l LLC, 2013 U.S. App. LEXIS 22443 (4th Cir. Nov. 5, 2013): Projects Management Company ("PMC") appeals from the district court's dismissal of its suit against DynCorp International LLC ("DynCorp"). The district court dismissed PMC's…
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Sovereign Immunity — Subpoena Is a “Suit” Precluded by Tribal Sovereign Immunity

Bonnet v. Harvest (US) Holdings, Inc.,  2014 U.S. App. LEXIS 1686 (10th Cir. Jan. 28, 2014): The issue before us is whether a subpoena duces tecum served on a non-party Tribe and seeking documents relevant to a civil suit in federal court is itself a "suit" against the Tribe triggering tribal sovereign immunity. Exercising ...
Bonnet v. Harvest (US) Holdings, Inc.,  2014 U.S. App. LEXIS 1686 (10th Cir. Jan. 28, 2014): The issue before us is whether a subpoena duces tecum served on a non-party Tribe and seeking documents relevant to a civil suit in…
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Website Evidence — Because Information on Government Websites Is Self-Authenticating, Court May Take Judicial Notice of It

  Newton v. Holland, 2014 U.S. Dist. LEXIS 10625 (E.D. Ky. Jan. 29, 2014): On March 17, 1994, Newton was indicted in the Eastern District of California on two counts of carjacking in violation of 18 U.S.C. § 2119(1), (2); two counts of using a firearm during the commission of a crime of violence in violation of 18 U.S.C. § 9 ...
Newton v. Holland, 2014 U.S. Dist. LEXIS 10625 (E.D. Ky. Jan. 29, 2014): On March 17, 1994, Newton was indicted in the Eastern District of California on two counts of carjacking in violation of 18 U.S.C. § 2119(1), (2); two…
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Sanctions — Beyond Judge’s Power to Order Depositions Changed to Venue Harsh for Foreign Witnesses — Limits on Power to Order Testimony from Them — Mandamus OK to Correct Judicial Usurpation of Power, Clear Abuse of Discretion, Manifest Injustice

  In re Petition of Boehringer Ingelheim Pharms., Inc., 2014 U.S. App. LEXIS 1479 (7th Cir. Jan. 24, 2014): Pradaxa is a prescription blood-thinning drug manufactured by an American company and its German affiliate (collectively Boehringer). A number of suits against Boehringer complaining about the accuracy of the warning lab ...
In re Petition of Boehringer Ingelheim Pharms., Inc., 2014 U.S. App. LEXIS 1479 (7th Cir. Jan. 24, 2014): Pradaxa is a prescription blood-thinning drug manufactured by an American company and its German affiliate (collectively Boehringer). A number of suits against…
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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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