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

Text Admissibility: 902(11) Certification from Provider Establishes Only That Record of Transmission, Not Content of Messages = Business Record — 801(d)(2)(A) Statement of Party Opponent Need Only Be Relevant, Not Substantively an Admission

State v. Jordan, 2018 S.C. App. Unpub. LEXIS 104 (S.C. Ct. App. Mar. 7, 2018): In 2014, an Abbeville County jury found Tony Vernon Jordan (Appellant) guilty of murder and possession of ...
State v. Jordan, 2018 S.C. App. Unpub. LEXIS 104 (S.C. Ct. App. Mar. 7, 2018): In 2014, an Abbeville County jury found Tony Vernon Jordan (Appellant) guilty of murder and possession of a weapon during the commission of a …
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Internet Evidence — Opponent’s Website = Admission Usable on Jurisdictional Motion — Internet Archive (Wayback) Pages of Opponent’s Website Admitted without Supporting Certification from Archive Absent Claim of Inaccuracy

SprayFoamPolymers.com, LLC v. Luciano, 2018 Tex. App. LEXIS 1793 (Tex. Ct. App. Mar. 9, 2018): This is an appeal from the trial court's denial of the special appearance filed by appellant and defendant below, SprayFoamPolymers.com, LLC, in a lawsuit filed by appellees Frank and Helene Luciano related to the installation of Thermos ...
SprayFoamPolymers.com, LLC v. Luciano, 2018 Tex. App. LEXIS 1793 (Tex. Ct. App. Mar. 9, 2018): This is an appeal from the trial court's denial of the special appearance filed by appellant and defendant below, SprayFoamPolymers.com, LLC, in a lawsuit filed…
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Appeals: A Single Sentence in a Reply Brief Below Does Not Preserve An Argument for Appellate Review

Coach Servs. v. Source II, 2018 U.S. App. LEXIS 6398 (6th Cir. Mar. 15, 2018): The district court ruled that Cerhue Walker and Source II infringed Coach's trademarks, awarded statutory dam ...
Coach Servs. v. Source II, 2018 U.S. App. LEXIS 6398 (6th Cir. Mar. 15, 2018): The district court ruled that Cerhue Walker and Source II infringed Coach's trademarks, awarded statutory damages to Coach, and permanently enjoined Walker and Source…
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Documents on 12(b)(6) Motion: Even If “Integral” to Complaint, Doc. Won’t Be Considered If Authenticity Disputed — Existence of Website Considered But Not Truth of Contents

Russo v. Navient Sols., LLC, 2018 U.S. Dist. LEXIS 48263 (D. Vt. Mar. 23, 2018): Plaintiff Kayla Russo brings this action against Defendants Navient Solutions, LLC ("Navient"), SLM Private Credit Stu ...
Russo v. Navient Sols., LLC, 2018 U.S. Dist. LEXIS 48263 (D. Vt. Mar. 23, 2018): Plaintiff Kayla Russo brings this action against Defendants Navient Solutions, LLC ("Navient"), SLM Private Credit Student Loan Trust 2006-A, SLM Private Education Student Loan…
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Sanctions: Dismissal for Failure to Prosecute — Same Factors, and Requisite Aggravating Factors, under Inherent Power & Rule 41(b) (5th Cir.) — They Include Client’s Personal Responsibility & Inaptness of Lesser Sanctions

Gates v. Strain, 2018 U.S. App. LEXIS 7268 (5th Cir. Mar. 22, 2018): Shane Gates was arrested by the St. Tammany Parish Sheriff's Office in 2006. In 2007, he filed this action under 42 ...
Gates v. Strain, 2018 U.S. App. LEXIS 7268 (5th Cir. Mar. 22, 2018): Shane Gates was arrested by the St. Tammany Parish Sheriff's Office in 2006. In 2007, he filed this action under 42 U.S.C. § 1983 alleging that…
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Service of Subpoena on Non-Party Federal Agency: If by State Court Litigant, Sovereign Immunity Applies, Litigant Must File APA Action If Agency Says No — If by Federal Litigant, No Sov. Immunity But Circuit Split As to Standard of Review

Taylor v. Gilbert, 2018 U.S. Dist. LEXIS 42322 (N.D. Ind. Mar. 15, 2018) (see also our post dated March 21, 2018): ORDER ON MOTION TO COMPEL This matter is before the C ...
Taylor v. Gilbert, 2018 U.S. Dist. LEXIS 42322 (N.D. Ind. Mar. 15, 2018) (see also our post dated March 21, 2018): ORDER ON MOTION TO COMPEL This matter is before the Court on Plaintiff's Motion to Compel and for…
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RICO: Perjury, Obstruction, Evidence Tampering Are Predicates Only If in Connection with Federal Proceedings — State Prisoner Can’t Pursue §1983 Action If Win Would Imply Invalidity of Conviction (Heck Bar)

Pro se Plaintiff John Garrett Smith, an inmate at Stafford Creek Corrections Center in Washington, filed this action against Defendant Sandra Aldridge claiming violations of the Racketeer Influenced and Corrupt Organizations Act, the Americans with Disabilities Act, and the Computer Fraud and Abuse Act. Defendant moves to dismiss this case for failure to state a ...
Pro se Plaintiff John Garrett Smith, an inmate at Stafford Creek Corrections Center in Washington, filed this action against Defendant Sandra Aldridge claiming violations of the Racketeer Influenced and Corrupt Organizations Act, the Americans with Disabilities Act, and the Computer…
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Supreme Court: FRCP 42(a): Judgment Entered in Each of Consolidated Cases Is Immediately Appealable — Neither Congress Nor Advisory Committee Alters “the Fundamental Details of an Existing Scheme with Vague Terms and Subtle Devices” (Good Quote)

Hall v. Hall, 138 S.Ct. 1118 (2018): Three Terms ago, we held [**6]  that one of multiple cases consolidated for multidistrict litigation under 28 U. S. C. §1407 is immediate ...
Hall v. Hall, 138 S.Ct. 1118 (2018): Three Terms ago, we held [**6]  that one of multiple cases consolidated for multidistrict litigation under 28 U. S. C. §1407 is immediately appealable upon an order disposing of that case, regardless of…
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Rule 45: Is a Subpoena Issued to a Non-Party Government Agency Subject to Review under the Administrative Procedure Act or Rules 45 and 26? — Circuit Split

Quiles v. Union Pac. R.R. Co., 2018 U.S. Dist. LEXIS 19244 (D. Neb. Feb. 6, 2018): This matter is before the Court on the United States' Motion to Quash Subpoenas (Filing No. 104). Upon consideration, the ...
Quiles v. Union Pac. R.R. Co., 2018 U.S. Dist. LEXIS 19244 (D. Neb. Feb. 6, 2018): This matter is before the Court on the United States' Motion to Quash Subpoenas (Filing No. 104). Upon consideration, the motion is granted.…
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Neither Rule 11 Sanctions Nor Separate Referral to Disciplinary Committee May Be Certified for Appeal under Rule 54(b) Because They Are Not Claims for Relief (1292(b) Possible; Not Collateral Order; Markwell Highly Unlikely)

Nogess v. Poydras Ctr., LLC, 2018 WL 1614216 (5th Cir. Apr. 3, 2018): *1 This is an appeal of an order of sanctions under Rule 11 and a referral of attorney conduct to a lawyers’ disciplinary committee with findings of misco ...
Nogess v. Poydras Ctr., LLC, 2018 WL 1614216 (5th Cir. Apr. 3, 2018): *1 This is an appeal of an order of sanctions under Rule 11 and a referral of attorney conduct to a lawyers’ disciplinary committee with findings of …
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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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