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

Appellate Jurisdiction Exists over Discovery Order Where Contempt Impossible Because Document Custodian Is Disinterested Third Party — One District Court Lacks Jurisdiction to Quash Subpoena Issued by Another

From Securities and Exchange Commission v. Gewerter, 2011 U.S. App. LEXIS 17833 (9th Cir. Aug. 26, 2011): This is an appeal by Harold Gewerter, a Nevada attorney, seeking review of the Nevada district court's order denying his motion to quash a subpoena for bank records of his client trust account. *** In April 2008, the Securiti ...
From Securities and Exchange Commission v. Gewerter, 2011 U.S. App. LEXIS 17833 (9th Cir. Aug. 26, 2011): This is an appeal by Harold Gewerter, a Nevada attorney, seeking review of the Nevada district court’s order denying his motion to quash…
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Authentication of Facebook Messages

From State v. Eleck, 130 Conn. App. 632, 23 A.3d 818 (2011): The defendant first claims that the court abused its discretion in excluding from evidence a printout from his Facebook account documenting electronic messages purportedly sent to him by Judway from her Facebook account. We do not agree. ***As a witness for the state, ...
From State v. Eleck, 130 Conn. App. 632, 23 A.3d 818 (2011): The defendant first claims that the court abused its discretion in excluding from evidence a printout from his Facebook account documenting electronic messages purportedly sent to him by…
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Identity of Owner of AOL or PACER Account — Input by Unknown Individual and Unverified by Service — Is Inadmissible Hearsay when Proffered through AOL / PACER Representative

From United States v. Blechman, 2011 U.S. App. LEXIS 18919 (10th Cir. Sept. 14, 2011): a. Exhibit 1-BBB -- The AOL Record Early in the trial, the Government sought to introduce an AOL account record, Exhibit 1-BBB, through Patricia Johnson, an investigator with AOL. The purpose of the exhibit was to "show[] that an individual us ...
From United States v. Blechman, 2011 U.S. App. LEXIS 18919 (10th Cir. Sept. 14, 2011): a. Exhibit 1-BBB — The AOL Record Early in the trial, the Government sought to introduce an AOL account record, Exhibit 1-BBB, through Patricia Johnson,…
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Evidence from Wikipedia Inadmissible on Summary Judgment

From Straughter v. Raymond, 2011 U.S. Dist. LEXIS 93068 (C.D. Cal. Aug. 19, 2011) (summary judgment motion): Plaintiff claims that he has been a professional musician for more than forty years, composing and performing musical works in a variety of musical genres. *** Sometime around 1997 or 1998, plaintiff and his brother, David Straug ...
From Straughter v. Raymond, 2011 U.S. Dist. LEXIS 93068 (C.D. Cal. Aug. 19, 2011) (summary judgment motion): Plaintiff claims that he has been a professional musician for more than forty years, composing and performing musical works in a variety of…
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Retroactive vs. Prospective Application of a Judicial Decision

From Wright v. Owens Corning, 450 B.R. 541 (W.D. Pa. 2011): In Harper v. Virginia Department of Taxation, 509 U.S. 86, 113 S. Ct. 2510, 125 L. Ed. 2d 74 (1993), the Supreme Court of the United States held that [w]hen [the] Court applies a rule of federal law to the parties before it, that rule is the controlling ...
From Wright v. Owens Corning, 450 B.R. 541 (W.D. Pa. 2011): In Harper v. Virginia Department of Taxation, 509 U.S. 86, 113 S. Ct. 2510, 125 L. Ed. 2d 74 (1993), the Supreme Court of the United States held that…
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Supreme Court on Sanctions — If Plaintiff Asserts Both Frivolous and Non-Frivolous Claims, Court May Grant Attorneys’ Fees that Defendant Incurred Because of, and Only Because of, the Frivolous Claims — “But For” Causation Test

From Fox v. Vice, 131 S. Ct. 2205 (2011) (decided under Civil Rights Act attorneys' fees provision, 42 U.S.C. § 1988, but logically applicable to any sanctions provision authorizing award of “reasonable attorney's fees” — e.g., Rule 11): Federal law authorizes a court to award a reasonable attorney's fee to the prevailing ...
From Fox v. Vice, 131 S. Ct. 2205 (2011) (decided under Civil Rights Act attorneys’ fees provision, 42 U.S.C. § 1988, but logically applicable to any sanctions provision authorizing award of “reasonable attorney’s fees” — e.g., Rule 11): Federal law…
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Email, Text and Facebook Message Authentication

From Manuel v. State, 2011 Tex. App. LEXIS 7152 (Tex. Ct. App. Aug. 31, 2011): An e-mail is properly authenticated if its appearance, contents, substance, or other distinctive characteristics, taken in conjunction with circumstances, support a finding that the document is what its proponent claims. See Shea, 167 S.W.3d at 105; Massimo v. ...
From Manuel v. State, 2011 Tex. App. LEXIS 7152 (Tex. Ct. App. Aug. 31, 2011): An e-mail is properly authenticated if its appearance, contents, substance, or other distinctive characteristics, taken in conjunction with circumstances, support a finding that the document…
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Stock Price Data Inadmissible Where Price Drop May be Attributable to Irrelevant Causes — Rejecting Stipulations — Waiver v. Forfeiture of Objection & Plain Error Review — Double Hearsay

From United States v. Ferguson, 2011 U.S. App. LEXIS 15811 (2d Cir. Aug. 1, 2011): Materiality is an element of most of the charged offenses. There must have been a "substantial likelihood" that the LPT-related misstatements would be important to a reasonable investor. See Basic Inc. v. Levinson, 485 U.S. 224, 231, 108 S. Ct. 978, 99 L. ...
From United States v. Ferguson, 2011 U.S. App. LEXIS 15811 (2d Cir. Aug. 1, 2011): Materiality is an element of most of the charged offenses. There must have been a “substantial likelihood” that the LPT-related misstatements would be important to…
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Motion to Recuse Not Only Members of Panel that Ruled against Her but also All Other, Unnamed Circuit Judges “Who Share Their Feelings” Not Only Frivolous but Appears to Comprise Malicious Disparagement of Court

From Gallop v. Cheney, 645 F.3d 519 (2d Cir. 2011) (denying rehearing of opinion excerpted in our post of June 7, 2011): While Gallop's petition for rehearing was pending before this Court, she moved, pursuant to 28 U.S.C. §§ 144 and 455(a), to disqualify the panel from consideration of that petition and any other aspect of her appeal ...
From Gallop v. Cheney, 645 F.3d 519 (2d Cir. 2011) (denying rehearing of opinion excerpted in our post of June 7, 2011): While Gallop’s petition for rehearing was pending before this Court, she moved, pursuant to 28 U.S.C. §§ 144…
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Non-Waiver Clause in Arbitration Agreement Does Not Preclude Finding that Party Has Waived Right to Arbitrate by Litigating Dispute in Court

From Gray Holdco, Inc. v Cassady, 2011 U.S. App. LEXIS 17032 (3d Cir. Aug. 17, 2011): On November 13, 2009, Gray filed the complaint in this action in the District Court against Cassady and RWLS, asserting that Cassady breached the Option Agreement and tortiously interfered with Gray's existing contractual relationships. The complaint a ...
From Gray Holdco, Inc. v Cassady, 2011 U.S. App. LEXIS 17032 (3d Cir. Aug. 17, 2011): On November 13, 2009, Gray filed the complaint in this action in the District Court against Cassady and RWLS, asserting that Cassady breached the…
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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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