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

Abuse of Discretion to Impose Sanctions for Unsupported Allegations That Were Not Filed in Bad Faith and Were Voluntarily Withdrawn, Albeit Not within 21-Day Safe Harbor Period

From In re Sony Corp. SXRD, 2011 U.S. App. LEXIS 19550 (2d Cir. Sept. 23, 2011): We vacate the district court's sanctions order. We understand why the district court felt the need to impose sanctions; we agree, for example, that (1) the Meserole plaintiffs' counsel did not have evidentiary support for certain of the assertions in the sec ...
From In re Sony Corp. SXRD, 2011 U.S. App. LEXIS 19550 (2d Cir. Sept. 23, 2011): We vacate the district court’s sanctions order. We understand why the district court felt the need to impose sanctions; we agree, for example, that…
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When There Is a Change in Law after Motion Decided But before Trial and Judgment, a Party That Does Not Seek Reconsideration Waives Arguments on Appeal Based on That Change in Law

From Douglas Asphalt Co. v. QORE, Inc., 2011 U.S. App. LEXIS 19266 (11th Cir. Sept. 20, 2011): The district court dismissed Douglas's RICO claims predicated on mail and wire fraud because Douglas had not pleaded that it relied on the defendants' misrepresentations. The parties agree that in doing so the court correctly applied the ...
From Douglas Asphalt Co. v. QORE, Inc., 2011 U.S. App. LEXIS 19266 (11th Cir. Sept. 20, 2011): The district court dismissed Douglas’s RICO claims predicated on mail and wire fraud because Douglas had not pleaded that it relied on the…
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New Arguments Raised for the First Time in Reply Brief Are Untimely and Disregarded

From EP Acquisition Corp. v. Maxxtrade, Inc., 2011 U.S. Dist. LEXIS 103715 (E.D. Ky. Sept. 14, 2011): The Sixth Circuit has consistently condemned arguments raised for the first time in reply briefs. See Seay v. Tennessee Valley Authority, 339 F.3d 454, 481 (6th Cir. 2003) (new arguments in a reply brief vitiate a nonmovant's ability t ...
From EP Acquisition Corp. v. Maxxtrade, Inc., 2011 U.S. Dist. LEXIS 103715 (E.D. Ky. Sept. 14, 2011): The Sixth Circuit has consistently condemned arguments raised for the first time in reply briefs. See Seay v. Tennessee Valley Authority, 339 F.3d…
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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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Recent Posts

Practice of Seeking Leave to Amend after The Case Is Dismissed Is Discouraged

RICO: Release Executed After Alleged RICO Violations Extinguishes RICO Claim — Eighth Circuit Declines to Address Enforceability of A Release “That Is An Integral Part of An Alleged RICO Scheme Or That Immunizes Future RICO Conduct

Pleading — “Civil pleadings are supposed to mark the boundaries for discovery; discovery is not supposed to substitute for definite pleading” (Good Quote) — Shotgun Pleadings (11th Circuit):  Four Categories/Types

Rule 37(c)(1) Exclusion of Untimely Expert Report: Failure to Argue Harmlessness Essentially Waives Issue

Rule 37(b) Sanctions — Exclusion of Supplemental Expert Report for Advancing New Opinions — Third Circuit Exclusion Factors — “Importance of Excluded Evidence:” If, As Proponent Argues, There Is Nothing New, Then Exclusion Doesn’t Harm Proponent; If There Is, It Harms Opponent

RICO Pleading: Generic Allegations of Fraud (Failing Even to Set Forth Any False Representation) And Extortion (Failing to Describe Actual Threats) Too Conclusory to State a Claim

RICO Standing: Antitrust’s Indirect Purchaser Rule Applies in RICO Cases, Barring Claims by Indirect Purchasers Two Or More Steps Removed From The Violator In A Distribution Chain (Here, Truck Purchasers/Lessees Suing Manufacturer), Though Court Considers Bar “Unsupported by Sensible Principles”

RICO Pleading: Statutory Directive That RICO Be Liberally Construed Does Not Extend to More Liberal Pleading Requirements

Inherent Power and FRAP 38 Sanctions — Inherent Power Sanctions (Here, A Deterrence Payment of $25,000 to the Court — Goodyear Issue Not Addressed) May Be Imposed in Addition to Statutory Attorney’s Fees under 35 U.S.C. § 285 (Exceptional Patent Case) — § 285 Does Not Preclude A Separate Award of Sanctions Or Fees under Another Authority — Recidivism (25 Prior Lawsuits with Same Perceived Venue Deficiency) A Factor — Fact That Rule 11 Sanctions Were Unavailable Due to Dismissal of Lawsuit Opened the Door to Inherent Power Sanctions Under Chambers — FRAP 38 Sanctions Denied Because Issue Previously Unaddressed in Circuit — A Meritless Appeal Is By No Means Necessarily A Frivolous One (Good Quote)

FRAP 38 Sanctions Imposed Due to the “Striking Legal Emptiness” of Brief/Appeal, “A Legal Nothingburger” — Bad Faith Not Required: An Appeal “May Also Be Frivolous If It Is Filed Out Of Sheer Obstinacy” (Good Quotes)

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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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