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

RICO — Open-Ended Continuity Sufficiently Alleged Where Phony Banker Bilked Series of Victims over Three Years and Continues to Advertise His Fraudulent Enterprise

CVLR Performance Horses, Inc. v. Wynne, 2013 U.S. App. LEXIS 10799 (4th Cir. May 29, 2013): Because this appeal stems from a dismissal under Rule 12(b)(6), we accept the facts as alleged in CVLR's Amended Complaint. See Martin Marietta v. Int'l. Tel. Satellite Org., 991 F.2d 94, 97 (4th Cir. 1992). Wynne is the sole owner of Rivermont a ...
CVLR Performance Horses, Inc. v. Wynne, 2013 U.S. App. LEXIS 10799 (4th Cir. May 29, 2013): Because this appeal stems from a dismissal under Rule 12(b)(6), we accept the facts as alleged in CVLR’s Amended Complaint. See Martin Marietta v.…
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When Federal Court Has Neither Diversity Nor Federal Question Jurisdiction Exists, § 1367 Does Not Confer Discretion to Exercise Supplemental Jurisdiction over State Law Claims

Dakota, Minnesota & Eastern Railroad Corp. v. Schieffer, 2012 U.S. App. LEXIS 26936 (8th Cir. May 30, 2012): As there is neither diversity nor federal question jurisdiction over Schieffer's contract-based claim for attorneys' fees and expenses, federal jurisdiction must be based upon the district court's supplemental jurisdiction under ...
Dakota, Minnesota & Eastern Railroad Corp. v. Schieffer, 2012 U.S. App. LEXIS 26936 (8th Cir. May 30, 2012): As there is neither diversity nor federal question jurisdiction over Schieffer’s contract-based claim for attorneys’ fees and expenses, federal jurisdiction must be…
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Defendant Cannot Moot Class Action by Offering Named Plaintiff Less Than Everything Sued for Simply Because, on the Merits, Plaintiff Is Entitled to Less — Rule 68 vs. Mootness — Merits vs. Standing

Hrivnak v. NCO Portfolio Mgmt., Inc., 2013 U.S. App. LEXIS 11687 (6th Cir. June 11, 2013): Christopher Hrivnak sued several debt-management companies and a law firm, (1) claiming they violated federal and state law when they dunned him on several credit-card debts and (2) seeking to obtain monetary and injunctive relief on behalf of a ...
Hrivnak v. NCO Portfolio Mgmt., Inc., 2013 U.S. App. LEXIS 11687 (6th Cir. June 11, 2013): Christopher Hrivnak sued several debt-management companies and a law firm, (1) claiming they violated federal and state law when they dunned him on several…
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Mohawk Applies to Privileged Material Held by Non-Party, Bars Appellate Review of Order Requiring Disclosure under Collateral Order or Perlman or Pragmatic Finality Doctrine — Mandamus Denied

United States v. Copar Pumice Co., 714 F.3d 1197 (10th Cir. 2013): This is an interlocutory appeal arising out of an action filed by the United States against Defendants Kelly Armstrong, Debbie Cantrup, Richard Cook, Shirley Cook (collectively "the Cooks"), and Copar Pumice Company, Inc. ("Copar") for trespass, conversion, and unjust en ...
United States v. Copar Pumice Co., 714 F.3d 1197 (10th Cir. 2013): This is an interlocutory appeal arising out of an action filed by the United States against Defendants Kelly Armstrong, Debbie Cantrup, Richard Cook, Shirley Cook (collectively “the Cooks”),…
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Supreme Court: Erroneous Decision by Arbitrator That Clause Authorizes Class Arbitration Is Unreviewable — But This May Be an Issue of Arbitrability for the Court — Concurrence: Absent Class Members Not Bound

Oxford Health Plans LLC v. Sutter, 2013 U.S. LEXIS 4358 (U.S. June 10, 2013): Class arbitration is a matter of consent: An arbitrator may employ class procedures only if the parties have authorized them. See Stolt-Nielsen S. A. v. AnimalFeeds Int'l Corp., 559 U. S. 662, 684, 130 S. Ct. 1758, 176 L. Ed. 2d 605 (2010). In this cas ...
Oxford Health Plans LLC v. Sutter, 2013 U.S. LEXIS 4358 (U.S. June 10, 2013): Class arbitration is a matter of consent: An arbitrator may employ class procedures only if the parties have authorized them. See Stolt-Nielsen S. A. v. AnimalFeeds…
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Stricter Authentication Standards for Facebook Messages Than for Email — No Hearsay Issues Raised by Automatically-Generated Notification Message — Hearsay of Forwarded Messages/Emails

Smith v. State, 2013 Miss. App. LEXIS 318 (Miss. Ct. App. June 4, 2013): A. Whether the Facebook messages were inadmissible because they were not properly authenticated. P30. Smith claims that the messages were not properly authenticated. Mississippi Rule of Evidence 901(a) provides that "[t]he requirement of authentica ...
Smith v. State, 2013 Miss. App. LEXIS 318 (Miss. Ct. App. June 4, 2013): A. Whether the Facebook messages were inadmissible because they were not properly authenticated. P30. Smith claims that the messages were not properly authenticated. Mississippi Rule of…
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Federal Jurisdiction — Sovereign Immunity of Indian Tribes Extends to Tribally-Owned Casinos — Congress Must Unequivocally Authorize Suit or Tribe Must Waive Its Immunity

Goldberg v. Foxwoods Resort Casino, 2013 U.S. App. LEXIS 11138 (2d Cir. June 4, 2013): Appellant Bruce E. Tassone, pro se, appeals from the judgment of the district court granting Appellees' motion to dismiss for lack of jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1), Appellant's complaint asserting, inter alia, viol ...
Goldberg v. Foxwoods Resort Casino, 2013 U.S. App. LEXIS 11138 (2d Cir. June 4, 2013): Appellant Bruce E. Tassone, pro se, appeals from the judgment of the district court granting Appellees’ motion to dismiss for lack of jurisdiction, pursuant to…
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RICO — Rimless Hub-and-Spoke Configuration Does Not State an Enterprise — 9(b) Applies Only to Predicate Acts Sounding in Fraud

Target Corp. v. LCH Pavement Consultants, LLC, 2013 U.S. Dist. LEXIS 80306 (D. Minn. June 7, 2013): Target sued its paving consultant, LCH Pavement Consultants, LLC ("LCH"); three employees of LCH, Leslie Bailey ("Bailey"), Lois Wade ("Wade"), and Keith Heutzenroeder ("Heutzenroeder"); four paving companies, United Paving Company ("Unit ...
Target Corp. v. LCH Pavement Consultants, LLC, 2013 U.S. Dist. LEXIS 80306 (D. Minn. June 7, 2013): Target sued its paving consultant, LCH Pavement Consultants, LLC (“LCH”); three employees of LCH, Leslie Bailey (“Bailey”), Lois Wade (“Wade”), and Keith Heutzenroeder…
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Is Equitable Tolling Applicable to Claims Brought Pursuant to the Federal Tort Claims Act? Circuit Split

Goldblatt v. Nat’l Credit Union Admin., 502 Fed. Appx. 53 (2d Cir. 2012): Footnote 2. In this Circuit, it is an open question whether equitable tolling is available for tort claims brought pursuant to the FTCA. See, e.g., A.Q.C. ex rel. Castillo v. United States, 656 F.3d 135, 144 n.6 (2d Cir. 2011). Other circuits are ...
Goldblatt v. Nat’l Credit Union Admin., 502 Fed. Appx. 53 (2d Cir. 2012): Footnote 2. In this Circuit, it is an open question whether equitable tolling is available for tort claims brought pursuant to the FTCA. See, e.g., A.Q.C. ex…
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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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