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

Spoliation — “The Sanction Should Have Some Correlation to the Degree of Fault” — Dismissal Excessive Absent Grave Prejudice (Adverse Inference OK) — Business Records Exception Inapt If Record Made in Anticipation of Litigation

Byrd v. Alpha Alliance Ins. Corp., 2013 U.S. App. LEXIS 6398 (6th Cir. Mar. 26, 2013): Plaintiff Sam Byrd appeals the district court's grant of summary judgment in favor of Defendant Alpha Alliance Insurance Corporation ("Alpha Alliance") and dismissal of Byrd's fire-loss claim based on spoliation of evidence. While finding support for ...
Byrd v. Alpha Alliance Ins. Corp., 2013 U.S. App. LEXIS 6398 (6th Cir. Mar. 26, 2013): Plaintiff Sam Byrd appeals the district court’s grant of summary judgment in favor of Defendant Alpha Alliance Insurance Corporation (“Alpha Alliance”) and dismissal of…
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Authentication of Facebook Messages through Circumstantial Evidence

United States v. Grant, 2011 CCA LEXIS 217 (Ct. Crim. Mil. App. Oct. 17, 2011): A special court-martial composed of officer members convicted the appellant in accordance with his pleas of one specification of dereliction of duty by providing alcohol to an underage female and two specifications of a violation of a lawful general order, b ...
United States v. Grant, 2011 CCA LEXIS 217 (Ct. Crim. Mil. App. Oct. 17, 2011): A special court-martial composed of officer members convicted the appellant in accordance with his pleas of one specification of dereliction of duty by providing alcohol…
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District Courts Are Bound by the Law of Their Circuits “No Matter How Egregiously in Error They May Feel Their Own Circuit to Be” (Good Quote)

Jackson v. Evans, 2013 U.S. Dist. LEXIS 28893 (C.D. Cal. Mar. 1, 2013): Footnote 1. See Bell v. Hill, 190 F.3d 1089, 1093 (9th Cir. 1999) (district courts must follow controlling circuit court precedent); Hasbrouck v. Texaco, Inc., 663 F.2d 950 (9th Cir. 1961) (district courts are bound by the law of their own circuit. "They are no ...
Jackson v. Evans, 2013 U.S. Dist. LEXIS 28893 (C.D. Cal. Mar. 1, 2013): Footnote 1. See Bell v. Hill, 190 F.3d 1089, 1093 (9th Cir. 1999) (district courts must follow controlling circuit court precedent); Hasbrouck v. Texaco, Inc., 663 F.2d…
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Obtaining Immediate Review of Discovery Order by Dismissing Case with Prejudice — Motions for Reconsideration: Proper Use (Good Quote), Standard of Review, “New Evidence”

Reisinger v. City of Wilkes-Barre, 2013 U.S. App. LEXIS 6301 (3 Cir. Mar. 29, 2013): The District Court had jurisdiction to hear the case pursuant to 28 U.S.C. §§ 1331 and 1343. We have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291. Footnote 3. Ordinarily, a District Court's discovery-relate ...
Reisinger v. City of Wilkes-Barre, 2013 U.S. App. LEXIS 6301 (3 Cir. Mar. 29, 2013): The District Court had jurisdiction to hear the case pursuant to 28 U.S.C. §§ 1331 and 1343. We have jurisdiction to hear this appeal pursuant…
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Waiver of Attorney-Client Privilege by Inadequate Privilege Log — Sale and Transfer of Assets, Including Privileged Material, Waives Privilege and Work Product — Court Enters 502(d) Order Confining Waiver to Instant Case

Solis v. Bruister, 2013 U.S. Dist. LEXIS 29108 (January 22, 2013): Plaintiff's Motion to Compel seeks an order compelling the production of documents subpoenaed by Plaintiff from DirecTV, the purchaser of Southeastern Ventures, Inc. f/k/a Bruister & Associates, Inc. These documents were stored on Defendant Amy Smith's Bruister & Associa ...
Solis v. Bruister, 2013 U.S. Dist. LEXIS 29108 (January 22, 2013): Plaintiff’s Motion to Compel seeks an order compelling the production of documents subpoenaed by Plaintiff from DirecTV, the purchaser of Southeastern Ventures, Inc. f/k/a Bruister & Associates, Inc. These…
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“Civil RICO Demands More Than a Straightforward Case of Malicious Prosecution” — Good Quote

Nowicki v. Delao, 2013 U.S. App. LEXIS 3201 (7th Cir. Feb. 8, 2013): David Nowicki and Barbara Tremel appeal from the dismissal of their claims under 42 U.S.C. § 1983 and 18 U.S.C. § 1962 against several parties who they say engaged in organized crime and committed civil rights violations by bringing a housing-discrimination action ag ...
Nowicki v. Delao, 2013 U.S. App. LEXIS 3201 (7th Cir. Feb. 8, 2013): David Nowicki and Barbara Tremel appeal from the dismissal of their claims under 42 U.S.C. § 1983 and 18 U.S.C. § 1962 against several parties who they…
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State Legislators Enjoy a Qualified Federal Legislative Privilege (Common Law/Rule 501) in Federal Civil Actions — Weaker Than Constitutional Privilege Afforded Federal Legislators — No Privilege in Criminal Cases

State of Fla. v. United States, 886 F. Supp. 2d 1301 (S.D. Fla. 2012): The issue in this proceeding is whether Florida state legislators have a privilege not to testify on matters at the core of their legislative functions. This order holds that they do have such a privilege and that it extends also to their staff members. This ...
State of Fla. v. United States, 886 F. Supp. 2d 1301 (S.D. Fla. 2012): The issue in this proceeding is whether Florida state legislators have a privilege not to testify on matters at the core of their legislative functions. This…
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Unsworn Expert Report May Be Considered on Summary Judgment If Expert Ratifies Report in Deposition

Zorn v. Mount Sinai Medical Center, Inc., 2012 WL 4320575, at *2 (S.D.N.Y. 2012): “Courts in this Circuit have uniformly held that unsworn expert reports do not satisfy the admissibility requirements of Fed.R.Civ.P. 56(e), and cannot be used to defeat a summary judgment motion.” Berk v. St. Vincent's Hosp. and Medical Center, 380 F.S ...
Zorn v. Mount Sinai Medical Center, Inc., 2012 WL 4320575, at *2 (S.D.N.Y. 2012): “Courts in this Circuit have uniformly held that unsworn expert reports do not satisfy the admissibility requirements of Fed.R.Civ.P. 56(e), and cannot be used to defeat…
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Securities — Predictions: “The Future Is Shrouded in Uncertainty” — Limited Utility of Confidential Sources — Recantation, Recidivism and Mandatory Sanctions under the PSLRA (Good Quotes — Judge Posner)

City of Livonia Employees’ Retirement Sys. v. Boeing Co., 2013 U.S. App. LEXIS 5975 (7th Cir. Mar. 26, 2013): The suit is on behalf of all persons who bought common stock of Boeing between May 4 and June 22, 2009. The key allegations of the first amended complaint (amended early in the pretrial proceedings) were as follows. On April 2 ...
City of Livonia Employees’ Retirement Sys. v. Boeing Co., 2013 U.S. App. LEXIS 5975 (7th Cir. Mar. 26, 2013): The suit is on behalf of all persons who bought common stock of Boeing between May 4 and June 22, 2009.…
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Experts — “The Trial Court Ought Not Transform a Daubert Hearing into a Trial on the Merits” — Daubert in Bench Trials (Good Quote)

In re Texas Grand Prairie Hotel Realty, LLC (Wells Fargo Bank N.A. v. Texas Grand Prairie Hotel Realty, LLC), 2013 U.S. App. LEXIS 4514 (5th Cir. March 1, 2013): We review a trial court's decision to admit expert testimony for abuse of discretion. As read by Daubert, Rule 702 requires trial courts to ensure that proffered expert testimo ...
In re Texas Grand Prairie Hotel Realty, LLC (Wells Fargo Bank N.A. v. Texas Grand Prairie Hotel Realty, LLC), 2013 U.S. App. LEXIS 4514 (5th Cir. March 1, 2013): We review a trial court’s decision to admit expert testimony for…
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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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