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

A 403 Ruling Will Be Overturned on Appeal Only in Extraordinary Circumstances — Evidence that Trademark Plaintiff Had Previously Sued Defendant Did Not Unfairly Depict Defendant as Recidivist

From PBM Prods., LLC v. Mead Johnson & Co., 2011 U.S. App. LEXIS 8084 (4th Cir. April 20, 2011): Mead Johnson ... contends that the district court erred in admitting evidence of the 2001 and 2002 Lanham Act lawsuits filed by PBM. Mead Johnson argues that the evidence lacked relevance under Federal Rule of Evidence 401 and was more prej ...
From PBM Prods., LLC v. Mead Johnson & Co., 2011 U.S. App. LEXIS 8084 (4th Cir. April 20, 2011): Mead Johnson … contends that the district court erred in admitting evidence of the 2001 and 2002 Lanham Act lawsuits filed…
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Preliminary Injunction Order May Not Incorporate Another Document by Reference without Consent of Enjoined Party — Void If It Does So

From Eyewonder, Inc. v. Abraham, 293 Fed. Appx. 818 (2d Cir. 2008): Defendant-Appellant John Abraham appeals from an order entered June 9, 2008, in the United States District Court for the Southern District of New York (Daniels, J.), enjoining him from soliciting, directly or indirectly, the 42 specific entities named on a list (the "B ...
From Eyewonder, Inc. v. Abraham, 293 Fed. Appx. 818 (2d Cir. 2008): Defendant-Appellant John Abraham appeals from an order entered June 9, 2008, in the United States District Court for the Southern District of New York (Daniels, J.), enjoining him…
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Filing 9 Separate Suits on Behalf of 9 Tenants Against Landlord Sanctionable under Rule 11(b)(1) and Inherent Power, But Not § 1927 — Motion to Disqualify Based on Opposing Counsel’s Alleged Breach of Duty to His Own Client Violates § 1927

From DeDios v. International Realty & RC Investments, 2011 U.S. App. LEXIS 7421 (9th Cir. Apr. 11, 2011): The district court did not abuse its discretion in sanctioning De Dios's counsel $500 for "vexatious litigation strategy" in filing nine separate but identical actions [on behalf of nine separate tenants in an apartment building agai ...
From DeDios v. International Realty & RC Investments, 2011 U.S. App. LEXIS 7421 (9th Cir. Apr. 11, 2011): The district court did not abuse its discretion in sanctioning De Dios’s counsel $500 for “vexatious litigation strategy” in filing nine separate…
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Federal Rules of Evidence Do Not Apply in Sanctions Proceedings, But Evidence Must Bear Indicia of Reliability — Adverse Inference for Scrubbing of Server while on Notice of Claim

From Atpac, Inc. v. Aptitude Solutions, Inc., 2011 U.S. Dist. LEXIS 40043 (E.D. Cal. April 13, 2011): I. Evidentiary Objections The parties have filed numerous evidentiary objections. "While the Federal Rules of Evidence do not necessarily apply in the context of a motion for sanctions, evidence relied upon must, a ...
From Atpac, Inc. v. Aptitude Solutions, Inc., 2011 U.S. Dist. LEXIS 40043 (E.D. Cal. April 13, 2011): I. Evidentiary Objections The parties have filed numerous evidentiary objections. “While the Federal Rules of Evidence do not necessarily apply in the context…
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Bond on Appeal May Include Sum for Appellate Attorneys’ Fees If Judgment Is Based on Fee-Shifting Statute (Here, RICO)

From Int’l Floor Crafts, Inc. v. Dziemit, 2011 U.S. App. LEXIS 8181 (1st Cir. April 21, 2011): Federal Rule of Appellate Procedure 7 states, "In a civil case, the district court may require an appellant to file a bond or provide other security in any form and amount necessary to ensure payment of costs on appeal." Fed. R. App. P. 7. I ...
From Int’l Floor Crafts, Inc. v. Dziemit, 2011 U.S. App. LEXIS 8181 (1st Cir. April 21, 2011): Federal Rule of Appellate Procedure 7 states, “In a civil case, the district court may require an appellant to file a bond or…
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Circumstantial Evidence of Email Evidence — Massachusetts Supreme Court

From Commonwealth v. Purdy, 2011 Mass. LEXIS 169 (Mass. Sup. Ct. April 15, 2011): Authentication of e-mail messages. The defendant argues that the judge erred in admitting the ten e-mail exchanges because the evidence was insufficient to authenticate them as having been authored by him. "The requirement of authentication . . . ...
From Commonwealth v. Purdy, 2011 Mass. LEXIS 169 (Mass. Sup. Ct. April 15, 2011): Authentication of e-mail messages. The defendant argues that the judge erred in admitting the ten e-mail exchanges because the evidence was insufficient to authenticate them as…
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Choosing between Competing Contractual Venue Provisions — RICO Claims Subject to Contractual Venue Provision

From Bahamas Sales Associate, LLC v. Byers, 2011 U.S. Dist. LEXIS 39557 (M.D. Fla. Mar. 31, 2011): The Byers and Willis cases trace their origins to Byers' and Willis' execution of contracts for the purchase of undeveloped parcels of "real property in the Versailles Sur Mer subdivision on Grand Bahama Island, which was alternatively mark ...
From Bahamas Sales Associate, LLC v. Byers, 2011 U.S. Dist. LEXIS 39557 (M.D. Fla. Mar. 31, 2011): The Byers and Willis cases trace their origins to Byers’ and Willis’ execution of contracts for the purchase of undeveloped parcels of “real…
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District Court Is Not Obliged to Inform Pro Se Litigants of Evidentiary or Procedural Rules and Properly Requires Adherence to Them

From Keeler vb. Aramark, 2011 U.S. App. LEXIS 7216 (10th Cir. April 7, 2011): We ... consider two procedural arguments Mr. Keeler makes — that the district court should have advised him of the requirement to authenticate his exhibits when it asked his preference on converting Wesley's motion to dismiss into one for summary judgment, a ...
From Keeler vb. Aramark, 2011 U.S. App. LEXIS 7216 (10th Cir. April 7, 2011): We … consider two procedural arguments Mr. Keeler makes — that the district court should have advised him of the requirement to authenticate his exhibits when…
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There Is Almost Never Pendent Appellate (Inextricably-Intertwined) Jurisdiction over Denial of Personal-Jurisdiction or Venue Motions on Appeal from Denial of Motion to Compel Arbitration

From Turi v. Main Street Adoption Servs., LLP, 633 F.3d 496 (6th Cir. 2011): Main Street Adoption Services, LLP and two of its officers (collectively, Main Street), none of whom are residents of Michigan, have filed this interlocutory appeal challenging the district court's conclusions that (1) it has personal jurisdiction over Main St ...
From Turi v. Main Street Adoption Servs., LLP, 633 F.3d 496 (6th Cir. 2011): Main Street Adoption Services, LLP and two of its officers (collectively, Main Street), none of whom are residents of Michigan, have filed this interlocutory appeal challenging…
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Securities — Section 21A of the Exchange Act Is Not a Statute of Repose — Differences between Statutes of Limitations and Repose — Statute of Limitations Barring Government Rights Strictly Construed in Favor of Government

From SEC v. Wyly, 2011 U.S. Dist. LEXIS 35793 (S.D.N.Y. Mar. 31, 2011): On July 29, 2010, following a six-year investigation into matters spanning almost two decades, the Securities and Exchange Commission ("SEC") filed this suit alleging thirteen Claims for securities violations by billionaire brothers Samuel Wyly and Charles J. Wyly (t ...
From SEC v. Wyly, 2011 U.S. Dist. LEXIS 35793 (S.D.N.Y. Mar. 31, 2011): On July 29, 2010, following a six-year investigation into matters spanning almost two decades, the Securities and Exchange Commission (“SEC”) filed this suit alleging thirteen Claims for…
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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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