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

Good Samaritan Doctrine — Rescuers Are Liable Only If They Fail to Exercise Reasonable Care in a Way That Worsens the Position of the Victim, Either by Increasing the Risk or Inducing Reliance, by the Victim or Other Rescuers

Turner v. United States, 2013 U.S. App. LEXIS 23349 (4th Cir. Nov. 20, 2013): The USCG's [U.S. Coast Guard’s] enabling statute, 14 U.S.C. § 88, authorizes the USCG to undertake rescue efforts, but does not impose any affirmative duty to commence such rescue operations. See Hurd v. United States, 34 F. App'x 77, 81 (4th Cir ...
Turner v. United States, 2013 U.S. App. LEXIS 23349 (4th Cir. Nov. 20, 2013): The USCG's [U.S. Coast Guard’s] enabling statute, 14 U.S.C. § 88, authorizes the USCG to undertake rescue efforts, but does not impose any affirmative duty to…
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RICO v. Art. III Standing—Paper Filed with No Inquiry May Not Be Sanctionable If Facts Prove True and Filer Prevails — Lengthy Investigation Satisfies Rule 11 Even If It Turns Up Little — Staying Rule 11 Motion Pending State Remand

Fiala v. B&B Enters., 2013 U.S. App. LEXIS 25705 (7th Cir. Dec. 26, 2013): This appeal arises out of a RICO class action suit that the district judge dismissed without deciding whether to certify it as a class action. The appeal is from the judge's denial of the defendants' application for an award of their attorneys' fee ...
Fiala v. B&B Enters., 2013 U.S. App. LEXIS 25705 (7th Cir. Dec. 26, 2013): This appeal arises out of a RICO class action suit that the district judge dismissed without deciding whether to certify it as a class action. The…
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Impact of Including in a Rule 56.1 Statement of Uncontested Facts a Reservation of Rights to Contest Issues at Trial Not Disputed on Summary Judgment

Berbick v. Precinct 42, 2013 U.S. Dist. LEXIS 143955 (S.D.N.Y. Sept. 27, 2013): 2. The Rule 56.1 Statement Footnote A Rule 56.1 statement is "a short and concise statement . . . of the material facts as to which the moving party contends there is no genuine issue to be tried." Local R. Civ. P. 56.1( ...
Berbick v. Precinct 42, 2013 U.S. Dist. LEXIS 143955 (S.D.N.Y. Sept. 27, 2013): 2. The Rule 56.1 Statement Footnote A Rule 56.1 statement is "a short and concise statement . . . of the material facts as to which the…
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Texts — Authentication Standards for Text Messages = Same as for Emails — Testimony from Memory of One Party, Refreshed by Looking at Own Cell Phone, Suffices — Others’ Access to Phone Goes to Weight

State v. Elseman, 287 Neb. 134 (2014): Ryan M. Elseman appeals his convictions in the district court for Douglas County of first degree murder and use of a deadly weapon to commit a felony. Elseman claims that the court erroneously admitted evidence regarding the content of certain text messages.*** The Content of ...
State v. Elseman, 287 Neb. 134 (2014): Ryan M. Elseman appeals his convictions in the district court for Douglas County of first degree murder and use of a deadly weapon to commit a felony. Elseman claims that the court erroneously…
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Unconscionability of Arbitration Clause — Like Arbitrability Generally — Is Issue for Court, Even If Other Portions of Contract Are Also Challenged, As Long As Crux of Complaint Is Not Challenge to Contract As a Whole

Smith v. JEM Grp., 737 F.3d 636 (9th Cir. 2013): JEM argues that an arbitrator, rather than the district court, should have determined whether the arbitration clause is unconscionable.  JEM argues under Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S. Ct. 1204, 163 L. Ed. 2d 1038 (2006), and Na ...
Smith v. JEM Grp., 737 F.3d 636 (9th Cir. 2013): JEM argues that an arbitrator, rather than the district court, should have determined whether the arbitration clause is unconscionable.  JEM argues under Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S.…
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Website Evidence: Testimony of a Witness That She Downloaded Internet Postings and Confirmed Identities of Key Posters Suffices to Authenticate Them As Posted by Relevant Persons

Rivera v. Village of Farmingdale, 2013 U.S. Dist. LEXIS 181890 (E.D.N.Y. Dec. 31, 2013): In essence, Plaintiffs claim that, in violation of the Fair Housing Act, 42 U.S.C. §§ 3601 et seq., the Village carried out a redevelopment plan for an area populated predominantly by Latinos, intending to discriminate against or, ...
Rivera v. Village of Farmingdale, 2013 U.S. Dist. LEXIS 181890 (E.D.N.Y. Dec. 31, 2013): In essence, Plaintiffs claim that, in violation of the Fair Housing Act, 42 U.S.C. §§ 3601 et seq., the Village carried out a redevelopment plan for…
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Removal — Fraudulent Joinder — Settlement Communications Subject to Rule 408 May Be Considered to Determine Whether Parties Properly Joined

King v. Pfizer, Inc., 2013 U.S. Dist. LEXIS 181702 (D. Neb. Nov. 26, 2013): This matter is before the court on the plaintiffs', Cathy and Steve King (Kings), Motion to Remand (Filing No. 22). *** On September 17, 2013, the pharmaceutical defendants removed this action from the District Court of Lancaster County, Nebraska, ...
King v. Pfizer, Inc., 2013 U.S. Dist. LEXIS 181702 (D. Neb. Nov. 26, 2013): This matter is before the court on the plaintiffs', Cathy and Steve King (Kings), Motion to Remand (Filing No. 22). *** On September 17, 2013, the…
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Rule 26(g) Sanctions — Is a Pro Se Litigant Who Also Represents Another Party Eligible to Receive Attorneys’ Fees as a Discovery Sanction? — “Costs” Awardable to a Pro Se Litigant

Zalaski v. City of Hartford, 2013 U.S. App. LEXIS 14898 (2d Cir. July 23, 2013): Rule 26(g)(1) of the Rules of Civil Procedure provides that all discovery responses "must be signed by" an attorney of record, or by the party personally, if unrepresented, which signature certifies the accuracy of any disclosed information &qu ...
Zalaski v. City of Hartford, 2013 U.S. App. LEXIS 14898 (2d Cir. July 23, 2013): Rule 26(g)(1) of the Rules of Civil Procedure provides that all discovery responses "must be signed by" an attorney of record, or by the party…
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Do the Pleading Requirements of Iqbal and Twombly Apply to Affirmative Defenses? Circuit Split

Wells v. Hi Country Auto Group, 2013 U.S. Dist. LEXIS 162731 (D.N.M. Nov. 13, 2013): The Tenth Circuit has not yet ruled on whether the Iqbal/Twombly pleading standard applies to affirmative defenses. However, other courts in this circuit, this Court included, have held that the Iqbal/Twombly pleading standard does not apply ...
Wells v. Hi Country Auto Group, 2013 U.S. Dist. LEXIS 162731 (D.N.M. Nov. 13, 2013): The Tenth Circuit has not yet ruled on whether the Iqbal/Twombly pleading standard applies to affirmative defenses. However, other courts in this circuit, this Court …
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Jury Trial Waiver — Circuit Split as to Which Party Bears Burden of Proving That Waiver Was, or Was Not, Knowing and Voluntary

Avants v. Prospect Mortgage, LLC, 2013 U.S. Dist. LEXIS 177990 (D. N.M. Dec. 17, 2013): "The right of trial by jury as declared by the Seventh Amendment to the Constitution--or as provided by a federal statute--is preserved to the parties inviolate." Fed. R. Civ. P. 38. The right to a jury trial in the federal courts is gov ...
Avants v. Prospect Mortgage, LLC, 2013 U.S. Dist. LEXIS 177990 (D. N.M. Dec. 17, 2013): "The right of trial by jury as declared by the Seventh Amendment to the Constitution–or as provided by a federal statute–is preserved to the parties…
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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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