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

Authentication of Text Messages, Including Transcriptions of Texts

From Commonwealth v. Koch, 2011 PA Super 201, 2011 Pa. Super. LEXIS 2716 (Pa. Super. Sept. 16, 2011): The question of what is necessary to authenticate a text message appears to be an issue of first impression in Pennsylvania. Text messages are defined as "writings or other data transmitted electronically by cellular telephones" that co ...
From Commonwealth v. Koch, 2011 PA Super 201, 2011 Pa. Super. LEXIS 2716 (Pa. Super. Sept. 16, 2011): The question of what is necessary to authenticate a text message appears to be an issue of first impression in Pennsylvania. Text…
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Non-Specific JMOL Motion Waives Unspecified Arguments — Third Circuit Does Not Reach Viability of Intracorporate Conspiracy Doctrine under RICO — Joint and Several RICO Liability

From State Farm Mut. Auto. Ins. Co. v. Lincow, 2011 U.S. App. LEXIS 19185 (3d Cir. Sept. 16, 2011): Mintz first contends that the District Court erroneously held that he waived or abandoned his request for judgment as a matter of law on all issues. Regarding the other issues aside from RICO distinctiveness, the District Court correct ...
From State Farm Mut. Auto. Ins. Co. v. Lincow, 2011 U.S. App. LEXIS 19185 (3d Cir. Sept. 16, 2011): Mintz first contends that the District Court erroneously held that he waived or abandoned his request for judgment as a matter…
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Advocate-Witness Rule Disqualification Due to Involvement in Underlying Events — Factors

From Beechwoods Restorative Care Center v. Leeds, 2011 U.S. Dist. LEXIS 102145 (W.D.N.Y. Sept. 12, 2011): Defendants also move to disqualify one of plaintiffs' attorneys, Kevin Cooman, Esq., from acting as trial counsel in this case. Defendants contend that because Cooman was involved in some of the events giving rise to this case,
From Beechwoods Restorative Care Center v. Leeds, 2011 U.S. Dist. LEXIS 102145 (W.D.N.Y. Sept. 12, 2011): Defendants also move to disqualify one of plaintiffs’ attorneys, Kevin Cooman, Esq., from acting as trial counsel in this case. Defendants contend that because…
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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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Recent Posts

RICO Causation: Parents of Children with Disabilities Deprived In-Person Education and Services during the Pandemic Were Not Causally Injured by Teachers’ False Assurances to Federal Authorities That IDEA-Complaint Policies Were in Place, Which Caused Funds to Issue But Not to the Benefit of the Disabled Children — Damages Too Indirect — Proper Plaintiff Is U.S. Government — Private Injunctive Relief Under RICO Uncertain in Third Circuit

Sanctions: Rule 37(b)(2) Dismissal — Sixth Circuit Factors

Inherent Power Sanctions — Extrajudicial Misconduct: Sanctions Power Extends to Conduct Intended to Sabotage Court’s Ability to Adjudicate the Case Before It, Here, By Commencing State Court Actions Seeking to Enjoin the Federal Plaintiffs from Proceeding with Their Federal Litigation — Sanctions Fee Awards: The Factors Used For Calculating A Fee Award To A Prevailing Party Do Not Govern — Under Goodyear, the Relevant Inquiry Is Whether There Is A Sufficient Causal Link Between The Sanctioned Misconduct And The Fees Awarded

RICO: Members of Association-in-Fact Enterprise Must Act with a Common Purpose—Mere Allegation That Various Defendants Agreed at Different Times to Engage in Various Fraudulent Schemes Does Not Plausibly Support the Essential Inference, That They Acted with s Sufficiently Common Purpose

RICO Causation: (1) State’s Misrepresentation to Federal Government That It Was Providing Plaintiffs with Mandated Special Education Did Not Cause Plaintiffs’ Injury Because The Failure to Provide The Education Was Not Caused by the Fraud on the Federal Government — (2) The Three Factors for Assessing RICO Causation — (3) Limits of the Second Circuit’s Decision in Alix v. McKinsey That Causation Can Be Established Where A Fraud On The Judiciary “Or Other Governmental Entity” Resulted In A Resource Going To Someone Less Deserving

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

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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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