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

Texts — Hearsay: Adoptive Admission by Silence — Three Factors — “Because of The Inherently Equivocal Nature of Silence, Such Evidence Must Be Received with Caution” (Good Quote)

Andre Vargas was convicted of four counts of third degree child rape for raping his daughter during the summer before her ninth grade year when she was 14. At trial, the State presented testimony from the victim, people she had told about the sexual abuse when she was a senior in high school, and an expert on delayed disclosure. The State presented no physical ev ...
Andre Vargas was convicted of four counts of third degree child rape for raping his daughter during the summer before her ninth grade year when she was 14. At trial, the State presented testimony from the victim, people she had…
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Discovery Sanction: Evasive or Incomplete Interrogatory Answer = No Answer — While Striking Claim Is Extreme, More Demanding Standard Applied in Civil Forfeiture Actions to Special Interrogatories on Standing

 United States v. 284,950.00 in United States Currency, 2019 U.S. App. LEXIS 23947 (8th Cir. Aug. 12, 2019): Nikkolas Thompson appeals the district court's1 ...
United States v. 284,950.00 in United States Currency, 2019 U.S. App. LEXIS 23947 (8th Cir. Aug. 12, 2019): Nikkolas Thompson appeals the district court's1 judgment in favor of the United States in this civil forfeiture action. We affirm. In …
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Spoliation: Adverse Inference Requires Actual Suppression or Withholding — Inapt If Evidence “Lost or Accidentally Destroyed” or Failure “Is Otherwise Properly Accounted for” (Good Quotes)

 Layden v. Target Corp, 768 Fed. Appx. 152 (3d Cir. April 17, 2019): Donna Layden slipped and fell in Target and filed suit for negligence. The District Court granted summary judgment to Target after discove ...
Layden v. Target Corp, 768 Fed. Appx. 152 (3d Cir. April 17, 2019): Donna Layden slipped and fell in Target and filed suit for negligence. The District Court granted summary judgment to Target after discovery, concluding that Layden failed to…
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Facebook/Social Media Authentication Has 2 Parts: Proponent Must Supply Evidence as to Both (i) Who Owns the Page, and (ii) Who Took the Action Sufficient to Allow Jury to Find Both

Sample v. State, 2019 Md. App. LEXIS 642, 2019 WL 3451812 (Md. Ct. Spec. App. July 31, 2019): Appellant Hayes Sample was convicted by a jury in the Cir ...
Sample v. State, 2019 Md. App. LEXIS 642, 2019 WL 3451812 (Md. Ct. Spec. App. July 31, 2019): Appellant Hayes Sample was convicted by a jury in the Circuit Court for Baltimore County of attempted armed robbery, first degree …
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Inherent Power Sanctions: Dismissal for Disregard of Order Not Abuse of Discretion Where Litigant Forewarned — Nor Is Dismissal without Prejudice — Meaning of Abuse of Discretion (11th Circuit)

Frank v. Schulson, 2019 WL 3545891 (11th Cir. Aug. 5, 2019) (unpublished): *1 Kenneth Frank, a Florida state pretrial detainee proceeding pro se, appeals the district court’s order dismissing without prejudice his civil rights complaint, in which he alleged claims under, inter alia,
Frank v. Schulson, 2019 WL 3545891 (11th Cir. Aug. 5, 2019) (unpublished): *1 Kenneth Frank, a Florida state pretrial detainee proceeding pro se, appeals the district court’s order dismissing without prejudice his civil rights complaint, in which he alleged claims…
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Offensive (Nonmutual) Collateral Estoppel: 4 Factors — Identicality = Same Issues, Not Claims — Necessity Met If Finding Essential to Remedy, Even If Not Jmt — Legal Issues Reviewed De Novo, Fairness for Abuse of Discretion

 Bifolck v. Philip Morris United States, 2019 U.S. App. LEXIS 25023 (2d Cir. Aug. 22, 2019): Vincent Bifolck, individually and as executor of the estate of his deceased wife Jeanette Bifolck, appeals from a ...
Bifolck v. Philip Morris United States, 2019 U.S. App. LEXIS 25023 (2d Cir. Aug. 22, 2019): Vincent Bifolck, individually and as executor of the estate of his deceased wife Jeanette Bifolck, appeals from a judgment of the United States District…
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RICO: Whether a Pattern Exists (Predicates + Relationship + Threat of Continuing Activity) Is a Jury Question — Mailing Need Only Be Incident to Fraud, Not Fraudulent — Limited Scope of 9(b) Particularity

Sorensen v. Polukoff, 2019 WL 3819629 (10th Cir. Aug. 15, 2019) (Unpublished): 1 Sherman Sorensen, M.D., appeals the dismissal of his claims under the Racketeer Influenced and Corrupt Organizations Act (RICO),
Sorensen v. Polukoff, 2019 WL 3819629 (10th Cir. Aug. 15, 2019) (Unpublished): 1 Sherman Sorensen, M.D., appeals the dismissal of his claims under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962. The district …
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Appeals: In Bankruptcy Appeal, Circuit Sits As Second Court of Review & Independently Examines Factual & Legal Determinations of Bankruptcy Court, Using Same Standards As District Court

 In re Crawford, 2019 U.S. App. LEXIS 24570 (11th Cir. Aug. 19, 2019) (unpublished): PER CURIAM: Brett Elam appeals portions of the bankruptcy court's order sanctioning him for misconduct in the Chapter 11 pr ...
In re Crawford, 2019 U.S. App. LEXIS 24570 (11th Cir. Aug. 19, 2019) (unpublished): PER CURIAM: Brett Elam appeals portions of the bankruptcy court's order sanctioning him for misconduct in the Chapter 11 proceeding below. As debtor's counsel, Elam sought …
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Rule 45 (Or Inherent Power) Sanctions: Fees for Trial Subpoena End Run Around Discovery Deadline — Sub Has Standing to Move to Quash for Parent — Due Process: Rule 45 Puts Counsel on Notice of Its Terms — FRAP 38 Fees for Post-Hoc Rationalizations

Progresive Emu Inc. v. Nutrition & Fitness Inc., 2019 WL 3798494 (11th Cir. Aug. 13, 2019) (unpublished): PER CURIAM:   *1 This appeal arises from a breach-of-contract dispute between Plaintiff Progressive Emu Inc.,1 a producer and supplier of emu ...
Progresive Emu Inc. v. Nutrition & Fitness Inc., 2019 WL 3798494 (11th Cir. Aug. 13, 2019) (unpublished): PER CURIAM:   *1 This appeal arises from a breach-of-contract dispute between Plaintiff Progressive Emu Inc.,1 a producer and supplier of emu oil,…
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Sanctions: Omission Must Be Material before Dismissal May Be Apt — Materiality Defined — State of Mind Critical (Contract, Tort Examples)

Greyer v. Ill. Dep’t of Corrections, 2019 WL 3798212 (7th Cir. Aug. 13, 2019): *1 One of Congress’s expressed goals when it passed the Prison Litigation Reform Act (“PLRA”) was to rein in the flood of prisoner litigation—all too often frivolous or vexatious, it thought—clogging the courts. See Margo Schlan ...
Greyer v. Ill. Dep’t of Corrections, 2019 WL 3798212 (7th Cir. Aug. 13, 2019): *1 One of Congress’s expressed goals when it passed the Prison Litigation Reform Act (“PLRA”) was to rein in the flood of prisoner litigation—all too often…
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Recent Posts

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

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

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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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