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

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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Section 11 Claim Requires Only Allegations of Objective Falsity — Not That Defendants Disbelieved Statements at Time — Circuit Split — Disclaimer in § 11 Complaint Does Not Obviate 9(b) If Fraud Alleged

Indiana State Dist. Council of Laborers & Hod Carriers Pension & Welfare Fund v. Omnicare, Inc., 2013 U.S. App. LEXIS 10385 (6th Cir. May 23, 2013): Plaintiffs, all Omnicare investors, appeal the dismissal of their securities suit under § 11 of the Securities Act of 1933, 15 U.S.C. § 77k (2010), against Defendants Omnicare, Inc., its ...
Indiana State Dist. Council of Laborers & Hod Carriers Pension & Welfare Fund v. Omnicare, Inc., 2013 U.S. App. LEXIS 10385 (6th Cir. May 23, 2013): Plaintiffs, all Omnicare investors, appeal the dismissal of their securities suit under § 11…
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Email Evidence — Mere Fact That Email Is Kept in Routine Course of Business Operations Does Not Render It Admissible as a Business Record

United States v. Cone, 714 F.3d 197 (4th Cir. 2012): D. Introduction of Customer E-Mails Cone and Zhao last argue that the district court erred in admitting certain e-mails from JDC customers complaining that JDC products were "counterfeit" and "fake." Although the district court determined that the e-mails were introduced ...
United States v. Cone, 714 F.3d 197 (4th Cir. 2012): D. Introduction of Customer E-Mails Cone and Zhao last argue that the district court erred in admitting certain e-mails from JDC customers complaining that JDC products were “counterfeit” and “fake.”…
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Appellate Court Looks Skeptically on Sanction Issued Sua Sponte without Explanation As to Why It Was Necessary — Improper Purpose vs. Harmful Effect — No Inherent Power Sanction If Rule 11 Apt

Kenyon Int’l Emergency Servs. Inc. v. Malcolm, 2013 U.S. App. LEXIS 9704 (5th Cir. May 14, 2013): The district court's written order does not specify the basis for sanctions, although its oral statement indicates they were imposed for Faubus's "having filed the irrelevantly scurrilous e-mail" that graphically documented Employee A ...
Kenyon Int’l Emergency Servs. Inc. v. Malcolm, 2013 U.S. App. LEXIS 9704 (5th Cir. May 14, 2013): The district court’s written order does not specify the basis for sanctions, although its oral statement indicates they were imposed for Faubus’s “having…
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District Court Cannot Dismiss with Prejudice under Rule 12(b)(1) Because by Definition It Lacks Jurisdiction over the Claim — Court May Dismiss with Prejudice under 12(b)(6) for Lack of Statutory, But Not Article III, Standing

Cox, Cox, Filo, Camel & Wilson, L.L.C. v. Sasol N. Am., Inc., 2013 U.S. App. LEXIS 10572 (5th Cir. May 24, 2013): This case presents the question whether, under Federal Rule of Civil Procedure 12(b)(1), a district court may dismiss a claim with prejudice to the merits of that claim. We hold that it may not, and therefore VACATE and REMA ...
Cox, Cox, Filo, Camel & Wilson, L.L.C. v. Sasol N. Am., Inc., 2013 U.S. App. LEXIS 10572 (5th Cir. May 24, 2013): This case presents the question whether, under Federal Rule of Civil Procedure 12(b)(1), a district court may dismiss…
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More Rigorous Abuse of Discretion Review Applied to Civil Contempt Citation — Standards for Civil Contempt — Corporation/Appellee That Fails to Retain Counsel Defaults on Appeal But Court Here Still Proceeds to Merits

Liberty Propane L.P. v. Fehely, 2013 U.S. App. LEXIS 10617 (2d Cir. May 28, 2013): Where, as here, a district court holds a party in civil contempt and imposes sanctions for a bad-faith violation of a prior court order, we review the contempt finding "under an abuse of discretion standard that is more rigorous than usual, and we con ...
Liberty Propane L.P. v. Fehely, 2013 U.S. App. LEXIS 10617 (2d Cir. May 28, 2013): Where, as here, a district court holds a party in civil contempt and imposes sanctions for a bad-faith violation of a prior court order, we…
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Recent Posts

RICO: Indirect Injury Unrecoverable — Indirect Purchaser Rule Imported from Antitrust

Rule 11 Sanctions: (1) Improper Purpose of Harassment Reasonably Determined Based on Past Tactics (25 Lawsuits, 14 Ethics Complaints, and 150 FOIA Requests) As Well As Present Behavior — (2) Hearings Are Not Only Not Required to Satisfy Due Process But, If The Record Is Otherwise Adequate, Are Affirmatively Discouraged

RICO and Probate Exception to Federal Jurisdiction: Federal Jurisdiction over RICO Claim Not Barred by Probate Exception Even If the Federal Judgment May Be Binding on the Probate Proceedings (Or Vice Versa) — Calculating Damages Based on Diminution of Value of Estate ≠ Administration of the Estate — Doesn’t Matter If RICO Misconduct Includes Defendants’ Actions with Respect to The Estate

RICO: No Causation Where Harm Flowed Several Steps After the Fraudulent Acts — RICO Causation Same As Antitrust Causation

Sanctions vs. Automatic Stay: Imposition of Sanctions (Here, Inherent Power Sanctions) Is Subject to the Police Power Exception to the Automatic Stay in Bankruptcy

The Word “Include” May Be A Word of Limitation As Opposed to a Word of Enlargement, Depending on the Context

RICO — Pleading Conspiracy — Plaintiffs Must Plausibly Allege That the Defendants Knowingly Joined the RICO Conspiracy — Sparse Allegations of Knowledge of Fraud Due to Participation in a Commercial Transaction Insufficient to State RICO Conspiracy Claim Where Allegations Not Inconsistent with Ordinary Commercial Behavior — While Knowledge May Be Pled “Generally” under Rule 9(b), It Cannot Be Alleged Conclusorily and Must Satisfy the Twiqbal Plausibility Standard

Depositions: Improper to Object to Form to Straightforward Questions (Not Compound, Vague, Leading or Speculative) — Lack of Foundation Objection Improper in 30(b)(6) Deposition — Improper to “Educate” Witness During Breaks of 30(b)(6) Deposition Through Witness Calls to Knowledgeable Corporate Colleagues — Magistrate Judge May Impose Financial Sanctions

Spoliation/Sanctions: “A Party Does Not Spoliate Evidence When, Without Notice Of The Evidence’s Potential Relevance, It Destroys The Evidence According To Its Policy Or In The Normal Course Of Its Business” (Good Quote)

RICO: Fraud on Government Entities Causing Plaintiffs to Pay More for Inmate Calls Actionable on Bridge v. Phoenix Bond Analysis — Fact That Governments Had Separate Injuries As Part of the Scheme (from Reduced Commissions) Irrelevant — Plaintiffs’ Injuries Not Derivative of Governments’ — The Fraud on the Governments Was Not Too Distinct From Plaintiffs’ Injuries But Rather Necessary to Injure Plaintiffs — No Risk of Duplicative Recoveries and No Plaintiff Better Situated to Sue for Plaintiffs’ Injuries

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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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