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

Judicial Notice of Internet Evidence: Information on Government Websites Is Self-Authenticating under Rule 902(5) and Admissible under Rule 803(8) (Public Records Exception)

Rychorcewicz v. Welltec, Inc., 2018 U.S. Dist. LEXIS 123512 (S.D. Tex. June 22, 2018) (Report and Recommendation): Pending before the court1
Rychorcewicz v. Welltec, Inc., 2018 U.S. Dist. LEXIS 123512 (S.D. Tex. June 22, 2018) (Report and Recommendation): Pending before the court1 is Defendant Welltec, Inc.'s ("Defendant") Motion for Summary Judgment (Doc. 89) and Plaintiffs' Motion to Strike (Doc.…
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Appeals: Untimely Rule 59(e) Motion = 60(b) Motion & Appeal Is from Denial of That — Removal: While Remand Orders Are Usually Unappealable, They Are for Removal under § 1443, Allowing Removal Where Constitutional Rights Can’t Be Enforced in State Ct

Sanders v. Wright, 2018 WL 3933773 (5th Cir. 2018) (unpublished): PER CURIAM:* *1 Rockey D. Wright, proceeding pro se, challenges the district court’s denying his motion for relief following its remanding his child-custody action to state court ...
Sanders v. Wright, 2018 WL 3933773 (5th Cir. 2018) (unpublished): PER CURIAM:* *1 Rockey D. Wright, proceeding pro se, challenges the district court’s denying his motion for relief following its remanding his child-custody action to state court after Wright…
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RICO: Res Judicata Effect of State Court Judgment Determined by State Law — Where State Would Not Permit Collateral Attack of Judgment on Grounds of Suppression of Evidence, RICO Claim Alleging That Fails

Kearney v. Foley & Lardner, LLP, 2018 U.S. App. LEXIS 24024 (9th Cir. Aug. 24, 2018): MEMORANDUM* Joan Kearney ("Kea ...
Kearney v. Foley & Lardner, LLP, 2018 U.S. App. LEXIS 24024 (9th Cir. Aug. 24, 2018): MEMORANDUM* Joan Kearney ("Kearney") appeals from the district court's summary judgment. We have jurisdiction under 28 U.S.C. § 1291. HN1[]…
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Sanctions: Bankruptcy Court Has Inherent Power to Suspend, Disbar Lawyers from Practicing Before It — Recidivist Bad Faith Conduct Gleaned by Judicial Notice — Rule 11 Precedent Rightly Relied on Construing 9011

Koebel v. Chandler (In re Cuevas), 2018 U.S. App. LEXIS 23838 (9th Cir. Aug. 23, 2018): MEMORANDUM* In this consolidated ...
Koebel v. Chandler (In re Cuevas), 2018 U.S. App. LEXIS 23838 (9th Cir. Aug. 23, 2018): MEMORANDUM* In this consolidated appeal, Philip E. Koebel (Koebel) appeals the Bankruptcy Appellate Panel's (BAP) decision affirming a bankruptcy court's orders suspending …
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Judicial Notice May Be Taken of Distances Established by Internet Mapping Services — Here, Google Maps

Haynes v. Acquino, 2018 U.S. Dist. LEXIS 107005, 2018 WL 3126725 (W.D.N.Y. June 26, 2018): In this civil rights action, commenced April 29, 2010, Plaintiff alleges false arrest, excessive forc ...
Haynes v. Acquino, 2018 U.S. Dist. LEXIS 107005, 2018 WL 3126725 (W.D.N.Y. June 26, 2018): In this civil rights action, commenced April 29, 2010, Plaintiff alleges false arrest, excessive force and malicious prosecution against Defendants, police officers with the…
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Rule 37 Sanctions — Failure to Respond to Discovery for 5 Mos., Despite Court Orders = Flagrant Disregard, Merits Dismissal — No Need to Consider Lesser Sanctions Where Determination They’d Be Ineffective “Radiates from” Opin. (Good Quotes)

Lyons v. O’Quinn, 2018 WL 4031032 (11th Cir. Aug. 23, 2018): *1 Jackie Lyons appeals the district court’s order dismissing his suit as a discovery sanction, and another order denying his motion for reconsideration of three prior orders. The district court found that Mr. Lyons’ failure to respond to disco ...
Lyons v. O’Quinn, 2018 WL 4031032 (11th Cir. Aug. 23, 2018): *1 Jackie Lyons appeals the district court’s order dismissing his suit as a discovery sanction, and another order denying his motion for reconsideration of three prior orders. The district …
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Even When Intentional Spoliation Occurs, Court Has Discretion Not to Issue Adverse Inference Instruction Or Other Severe Sanction — Ultimately, Significance of Spoliation Evidence Is for the Jury to Weigh

Lexpath Techs. Holdings v. Welch, 2018 U.S. App. LEXIS 21034 (3d Cir. July 30, 2018): * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitu ...
Lexpath Techs. Holdings v. Welch, 2018 U.S. App. LEXIS 21034 (3d Cir. July 30, 2018): * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Defendant-Appellee, Brian Welch, …
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Text Admissibility: Co-Conspirator Exception to Hearsay Rule — Required Showing (3 Prongs + Independent Evidence of Conspiracy) Satisfied

United States v. Hill, 2018 U.S. App. LEXIS 21284 (11th Cir. Aug. 1, 2018): PER CURIAM: This is a healthcare kickback case involving a pharmacy, a marketing company, and ...
United States v. Hill, 2018 U.S. App. LEXIS 21284 (11th Cir. Aug. 1, 2018): PER CURIAM: This is a healthcare kickback case involving a pharmacy, a marketing company, and a group of sales representatives nicknamed "Team Cream." The pharmacy …
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Email Evid.: Party’s Production of Email with Employee’s Name & Co. Signature Authenticates It; Email = Admission; 2nd Level Hearsay OK As Verbal Act — Expert Report OK on SJ If Accompanied by Sworn Certification, Needn’t Itself Be Sworn

Am. Fedn. of Musicians of the United States v. Paramount Pictures Corp., 2018 U.S. App. LEXIS 25570 (9th Cir. Sept. 10, 2018): Since at least 1946, major motion picture studios and the ...
Am. Fedn. of Musicians of the United States v. Paramount Pictures Corp., 2018 U.S. App. LEXIS 25570 (9th Cir. Sept. 10, 2018): Since at least 1946, major motion picture studios and the musicians, conductors, and orchestras who score motion …
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Inherent Power Sanctions OK for Repeatedly Rearguing Matters Already Ordered & Being “Unnecessarily Argumentative” with Judge — Rule 11: Least Severe Sanctions — §1927 Indifferent to Equities of Dispute & Winners v. Losers (Good Quotes)

Vallejo v. Amgen, Inc., 2018 U.S. App. LEXIS 25547 (8th Cir. Sept. 10, 2018): In this consolidated products liability suit appeal, Jan Vallejo challenges the district court's
Vallejo v. Amgen, Inc., 2018 U.S. App. LEXIS 25547 (8th Cir. Sept. 10, 2018): In this consolidated products liability suit appeal, Jan Vallejo challenges the district court's1 order limiting the scope of her general causation [*2]  phase discovery.…
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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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