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

R. 37 Dismissal Sanction: Fault=Unreasonable Conduct > “Mere Mistake or Slight Error in Judgment” — No Motion to Compel OK If Actual Notice of Risk Given by Adversary — Proportional Sanction ≠ Least — Eventual Compliance Not Nec’ly Enough

Mojapelo v. Nat’l RR Passenger Corp., 2019 WL 193126 (7th Cir. Jan. 15, 2019): ORDER *1 Charles Mojapelo injured his leg while disembarking from a train operated by the National Railroad Passenger Corporation (Amtrak). He sued Amtrak for compensatory and punitive damages on theories of neglig ...
Mojapelo v. Nat’l RR Passenger Corp., 2019 WL 193126 (7th Cir. Jan. 15, 2019): ORDER *1 Charles Mojapelo injured his leg while disembarking from a train operated by the National Railroad Passenger Corporation (Amtrak). He sued Amtrak for compensatory and…
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Are Life Settlements Securities (Investment Contracts) under the Investment Advisers and Securities Acts? — Fact Dependent / Circuit Split

Living Bens. Asset Mgmt., L.L.C. v. Kestrel Aircraft Co. (In re Living Bens. Asset Mgmt., L.L.C.), 2019 U.S. App. LEXIS 5283 (5th Cir. Feb. 22, 2019): Debtor—plaintiff Living Benefits ...
Living Bens. Asset Mgmt., L.L.C. v. Kestrel Aircraft Co. (In re Living Bens. Asset Mgmt., L.L.C.), 2019 U.S. App. LEXIS 5283 (5th Cir. Feb. 22, 2019): Debtor—plaintiff Living Benefits Asset Management, L.L.C., brought this adversary proceeding against Kestrel Aircraft…
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Speedy Trial: Is a Delay of More Than 8 Months between Indictment and Trial Presumptively Prejudicial? (Maybe) — Factors for Assessing Prejudice

United States v. Sterling, 2019 WL 994520 (2d Cir. Mar. 1, 2019) (Unpublished): A jury convicted Alonzo Vernon and Kevin Sterling of (1) participating in a narcotics distribution conspiracy; (2) using, carrying, possessing, brandishing, and discharging firearms during and in relation to the narcotics distribution conspiracy; and (3) p ...
United States v. Sterling, 2019 WL 994520 (2d Cir. Mar. 1, 2019) (Unpublished): A jury convicted Alonzo Vernon and Kevin Sterling of (1) participating in a narcotics distribution conspiracy; (2) using, carrying, possessing, brandishing, and discharging firearms during and in…
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Common Law Immunity Protects State & Local Officials from Federal Civil Claims for Acts Legislative in Form and Substance, Unless Abrogated by Statute — Defeats RICO Claim — Plaintiffs Didn’t Argue RICO Abrogates Immunity (Open Issue)

NRP Holdings LLC v. City of Buffalo, 2019 U.S. App. LEXIS 4866, 2019 WL 692529 (2d Cir. Feb. 20, 2019): We confront here primarily a question of legislative immunity raised by a ...
NRP Holdings LLC v. City of Buffalo, 2019 U.S. App. LEXIS 4866, 2019 WL 692529 (2d Cir. Feb. 20, 2019): We confront here primarily a question of legislative immunity raised by a [*3]  mayor's inaction in the face of…
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Mere Failure to Recite That a Declaration or Affidavit Is Based on Personal Knowledge Doesn’t Render Contents Hearsay If It Is Clear from the Circumstances (Contents, Other Evidence) That It Was

Venezia v. E. Revenue, Inc., 2019 U.S. Dist. LEXIS 21501 (E.D. ...
Venezia v. E. Revenue, Inc., 2019 U.S. Dist. LEXIS 21501 (E.D. Pa. Feb. 11, 2019): : Footnote 2: Plaintiff filed an Objection to Defendant's Submissions    [ECF No. 33 & 34] urging this Court to disregard Mr. Griffin's Declaration…
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Supreme Court: Class Actions — 23(f)’s 14-Day Period Not Subject to Equitable Tolling — Mandatory Claims-Processing Rules Unalterable If Diligently Asserted — Timely Reconsideration Motion Affects Start Date

Nutraceutical Corp. v. Lambert, 2019 U.S. LEXIS 1593 (U.S. Feb. 26, 2019): To take an immediate appeal from a federal district court’s order granting or denying class certifica ...
Nutraceutical Corp. v. Lambert, 2019 U.S. LEXIS 1593 (U.S. Feb. 26, 2019): To take an immediate appeal from a federal district court’s order granting or denying class certification, a party must first seek permission from the relevant court of …
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RICO/9(b): Incorporating All Prior Allegations But Failing to Specifically Allege Precise False Statements — Let Alone Time, Place, Person Responsible for Same — Fatal

James v. Hunt, 2018 U.S. App. LEXIS 35832 (11th Cir. Dec. 20, 2018) (unpublished): William James and Terri V. Tucker (the Plaintiffs) appeal pro se the district court's gra ...
James v. Hunt, 2018 U.S. App. LEXIS 35832 (11th Cir. Dec. 20, 2018) (unpublished): William James and Terri V. Tucker (the Plaintiffs) appeal pro se the district court's grant of two Defendants' motions [*2]  to dismiss claims under Federal …
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Inherent Power Sanctions: Inconsistencies in Witness Testimony, Alone, Are Insufficient to Find Bad Faith — Fact Witness Relied on Lawyer to Draft Discovery Responses for Witness’s Approval Not Sanctionable

Strang v. Ga., 2018 U.S. App. LEXIS 36707 (11th Cir. Dec. 31, 2018) (unpublished): PER CURIAM: Kathleen Strang, a former assistant city attorney in Albany, Georgia, brings a comp ...
Strang v. Ga., 2018 U.S. App. LEXIS 36707 (11th Cir. Dec. 31, 2018) (unpublished): PER CURIAM: Kathleen Strang, a former assistant city attorney in Albany, Georgia, brings a complaint under 42 U.S.C. § 1983 claiming that her First Amendment…
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Texts: Authentication of Cell Data from Ownership, Admission Participated in Part of Chat — No Need to “Negate All Other Possibilities Inconsistent with Authenticity” — Record As “Muddle of Statements Not Phrased As Objections” (Good Quotes)

Snow v. State, 2019 Tex. App. LEXIS 342 (Tex. Ct. App. Jan. 17, 2019): A jury convicted Cristi Jeanette Snow of two counts of sexual performance of a child under age fourteen. See
Snow v. State, 2019 Tex. App. LEXIS 342 (Tex. Ct. App. Jan. 17, 2019): A jury convicted Cristi Jeanette Snow of two counts of sexual performance of a child under age fourteen. See Tex. Penal Code Ann. § 43.25(b),…
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Denial of Rule 11 Sanctions in Case 1 Doesn’t Establish It Was Not “Objectively Baseless” within Noerr-Pennington Sham Exception — Sxs Discretionary—Non Coextensive Factors May Have Been Considered—No Issue Preclusion

Ni-Q, LLC v. Prolacta Bioscience, Inc., 2019 WL 637703 (D. Or. Feb. 14, 2019): *1 In this patent action, the Court previously granted partial summary judgment in favor of Plaintiff Ni-Q, LLC (“Ni-Q”), finding that the asserted claims of the subject patent are invalid and that Plaintiff did not infringe the ...
Ni-Q, LLC v. Prolacta Bioscience, Inc., 2019 WL 637703 (D. Or. Feb. 14, 2019): *1 In this patent action, the Court previously granted partial summary judgment in favor of Plaintiff Ni-Q, LLC (“Ni-Q”), finding that the asserted claims of the …
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Recent Posts

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

Spoliation: Fed. R. Civ. P. 37(e) Imposes a Higher Standard — Intent — Than Fourth Circuit Law Previously Applied to Spoliation of Electronically-Stored Information (And Still Does As to Non-ESI) — Willfulness vs. Intent

Inherent Power and § 1927 Sanctions: Removal of counsel from case, referral for disciplinary action, and award of fees and costs for assaulting opposing counsel at deposition — Failure to request hearing waive any right to a hearing — Notice and opportunity to be heard required before sua sponte sanctions imposed, whether under Rule 11, the inherent power of the court or § 1927 — Notice may come from court or opposing counsel — Order imposing sanctions cannot provide notice of sanctions — Nature of bad faith requirement for inherent power sanctions: bad faith to obstruct the judicial process or bring about violation of a court order — Sanctions proceeding need not defer (Younger abstention) to disciplinary proceeding involving the same conduct — Sanctions proceeding doesn’t threaten to interfere with disciplinary proceeding — Why District Court is accorded significant deference in matters concerning attorney’s fees

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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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