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

February 11, 2023

Fourfold Purpose of Rule 37 Sanctions

Sensiva Health, L.L.C. v. Universal Meditech, Inc., 2022 U.S. Dist. LEXIS 223074, *13, 2022 WL 17576345, *5 (E.D. La. Nov. 18, 2022) (Report and Recommendation), modified and adopted (sanction affirmed), Sensiva Health, L.L.C. v. Universal Meditech, Inc., ...
Sensiva Health, L.L.C. v. Universal Meditech, Inc., 2022 U.S. Dist. LEXIS 223074, *13, 2022 WL 17576345, *5 (E.D. La. Nov. 18, 2022) (Report and Recommendation), modified and adopted (sanction affirmed), Sensiva Health, L.L.C. v. Universal Meditech, Inc., 2022 U.S.…
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Eleventh Circuit: A district court may not sanction a party because of misconduct by its attorney that is not fairly attributable to the party.

Carter v. Wal-Mart Stores E., LP, 2023 U.S. App. LEXIS 1244, 2023 WL 309034 (11th Cir. Jan. 19, 2023) ...
Carter v. Wal-Mart Stores E., LP, 2023 U.S. App. LEXIS 1244, 2023 WL 309034 (11th Cir. Jan. 19, 2023) (per curiam): *1 Victoria Carter sued Wal-Mart Stores East, LP, after she slipped and fell in a puddle on the…
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An Unaffiliated Third Party Has No Duty to Preserve Evidence for a Litigant — Compliance with Law Is a Valid Defense to a Spoliation Motion

Brown v. Nolen, 2022 U.S. App. LEXIS 35917 (D.C. Cir. Dec. 29, 2022) (unpublished): JUDGMENT This petition for review was considered on the record from the National Transportation Safety Board and on the briefs and or ...
Brown v. Nolen, 2022 U.S. App. LEXIS 35917 (D.C. Cir. Dec. 29, 2022) (unpublished): JUDGMENT This petition for review was considered on the record from the National Transportation Safety Board and on the briefs and oral argument of the parties.…
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$500 Sanction Under Rule 16(f)(1) Does Not Require Full Criminal Contempt Procedures, Goodyear Notwithstanding — Due Process Failure If Sanctions Imposed For Reasons Not Set Forth in Order to Show Cause — Rule 16(f) Does Not Authorize Sanctions for Lack of Candor, Unlike Rule 11

Banks v. Whambo! Enter., LLC, 2022 U.S. App. LEXIS 31400, 2022 WL 16918023 (9th Cir. Nov. 14, 2022) (unpublished) Key Takeaways:  “Taibi’s reliance on
Banks v. Whambo! Enter., LLC, 2022 U.S. App. LEXIS 31400, 2022 WL 16918023 (9th Cir. Nov. 14, 2022) (unpublished) Key Takeaways:  “Taibi’s reliance on Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178 (2017), is misplaced. …
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Even If Parties Share a Discovery Vendor, the Producing Party Bears the Burden of Ensuring That Its Directions to the Vendor Are Complete And Accurate — The Producing Party Must Certify Its Responses and Production under Rule 26(g)

Am. Consol. Indus., Inc. v. Blasingim, 2022 U.S. Dist. LEXIS 226203 (N.D. Ohio Dec. 15, 2022): Key Takeaways Rule 26(g)(1) requires, among other things, that every discovery response or objection "must be signe ...
Am. Consol. Indus., Inc. v. Blasingim, 2022 U.S. Dist. LEXIS 226203 (N.D. Ohio Dec. 15, 2022): Key Takeaways Rule 26(g)(1) requires, among other things, that every discovery response or objection “must be signed by at least one attorney of record.” …
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Rule 37 sanctions must flow from the discovery violation

ADASA Inc. v. Avery Dennison Corp., 2022 U.S. App. LEXIS 34765, 2022 WL 17725736 (Fed. Cir. Dec. 16, 2022): Key Takeaway: “The district court’s award inappropriately includes in the sanction the timely disclosed RFID tags, for which there was no discovery violation and no established harm to ADASA. Cf.
ADASA Inc. v. Avery Dennison Corp., 2022 U.S. App. LEXIS 34765, 2022 WL 17725736 (Fed. Cir. Dec. 16, 2022): Key Takeaway: “The district court’s award inappropriately includes in the sanction the timely disclosed RFID tags, for which there was no …
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The Gibson Dunn Sanctions Case — Key Takeaways and Full Opinion

In re Facebook, Inc. Consumer Priv. User Profile Litig., 2023 U.S. Dist. LEXIS 22328 (N.D. Cal. Feb. 9, 2023): "The organization has 'a duty to make a conscientious, good-faith effort to designate knowledgeable persons for Rule 30(b)( ...
In re Facebook, Inc. Consumer Priv. User Profile Litig., 2023 U.S. Dist. LEXIS 22328 (N.D. Cal. Feb. 9, 2023): “The organization has ‘a duty to make a conscientious, good-faith effort to designate knowledgeable persons for Rule 30(b)(6) depositions and to …
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Recent Articles

RICO: (1) Victim vs. Perpetrator Enterprises — (2) § 1962(b): Elements of a Violation — (3) Meaning of “Interest” and “Control” in § 1962(b) — (4) The Defendant in a § 1962(b) Action Need Not Be an Enterprise; The Victim Must Be An Enterprise — (5) Acquisition/Maintenance Injury Required (6) Aiding and Abetting Liability under RICO

Rule 11 Sanctions: Request for Bill of Particulars re Sanctions Proceeding Reviewed for Abuse of Discretion — Court’s Discretion Narrows As Severity of Sanction Increases OR When It Initiates the Sanction Proceeding Itself — Particularly Strict Abuse of Discretion Standard Applied — “Rule 11 Does Not License a District Court to Sanction Any Action by an Attorney or Party That It Disapproves of” (Good Quote) — Failure to Provide Identify Specific Pleading and Detail Specific, Objectionable Conduct within that Pleading Violates Due Process — Failure to Provide Notice That Most Severe Sanction May Be Imposed Violates Due Process — Failure to Provide Notice That “Scarlett Letter Sanction” (Mandatory Circulation of Sanctions Order) Or Other Sanction That Could Leave Indelible Imprint on Career Might Be Imposed Violates Due Process — Notice That Law Firm Might Be Sanctioned Insufficient to Afford Notice to Firm Lawyer and Managing Partner That He Might Be Sanctioned — Refusal to Impose Additional Sanction Until Impact of Other Imposed Penalties (Not Sanctions) Ascertained to See Whether Sanction Needed

Rule 37(c)(1) Sanctions: (1) Exclusion of Expert Testimony Reviewed for Abuse of Discretion Even When It Results in Summary Judgment — (2) Whether Physicians Must File 26(a)(2)(B) Report Depends on Whether They Formed Their Opinions for Litigation Or in the Course of Medical Treatment — (3) Party Seeking to Avoid Exclusion of Its Expert for Noncompliance with Rule 26 Bears Burden of Showing Harmlessness or Substantial Justification — (4) Expert Report Subject to Exclusion If It Is Conclusory and Does Not Meet the Level of Rigor Required by Rule 26(a)(2)(B)

RICO: The Statute Defines Enterprise Broadly, “But That Breadth Is Not Without Limit” (Good Quote) — Enterprise Inadequately Pled Where Plaintiffs Fail to Name the Common Purpose, Explain How the Relationships Among the Defendants Allowed Them to Advance That Purpose, Or Specify the Period of Time Sufficient to Achieve That Purpose — In a Particular Case, the Pattern of Racketeering May Be Sufficient to Infer the Existence of an Association-in-Fact Enterprise, But Pattern Does Not Necessarily Establish Enterprise — A RICO Conspiracy May Exist Regardless of Whether the Substantive RICO Violation Is Consummated, But the Substantive Violation Must Be Adequately Pled

RICO: (1) Claim Accrued When Plaintiff Suffered, and Was Aware of, Her Injury — Overt Retaliation in Her Employment As A Result of Reporting Another Employee’s Sexual Misconduct — Not When a Report Confirming that Misconduct Later Became Public; (2) Inhouse Lawyer’s Conclusion No Sexual Misconduct Occurred Is a Mere Expression of a Legal Conclusion, Not Deception Warranting SOL Reprieve Due to Equitable Tolling or Fraudulent Concealment — Plaintiff Exhibited Lack of Diligence in Failing to Consult Own Counsel or Challenge Inhouse Counsel’s Conclusion; (3) Causation: Plaintiff Must Prove Her Injuries Were Directly Caused by the Predicate Acts — (4) Concealment of Report Commissioned by Employer Directly Harmed Employer (by Exposing It to Liability) and Victims of Sexual Misconduct, and Only Indirectly Harmed Plaintiff Who Suffered Retaliation in Her Employment for Reporting the Misconduct

RICO: Without Injury to Business or Property, Injury Resulting from RICO Violation Is Not Actionable under RICO — Meaning of “Property” in § 1964(c) — Meaning of “Business” in § 1964(c) — Mere “Expectancy Interests” ≠ Business or Property — Loss of NCAA Eligibility = Loss of a Status, Not Loss of Property — Pecuniary Losses (Here, Attorney’s Fees) Flowing from a Non-Cognizable Injury Are Not Recoverably via RICO

RICO: Enterprise Not Sufficiently Distinct from Defendant Where Enterprise Allegedly Consisted of the Defendant Corporation, Corporate Employees, Their Counsel and “Friends”

FRAP 38 Sanctions Should Not Lightly Be Awarded on the Ground That an Incorrect Argument Was Frivolous — “An Appeal Can Be Weak, Indeed Almost Hopeless, Without Being Frivolous” (Good Quote) — There Must Be “No Legitimate Basis for Pursuing the Appeal” (Good Quote)

Severe Emotional Distress and Trauma ≠ RICO Injury — Parents’ Voluntary Financial Support of Adult Daughter Who Was Forced to Sign Over Her Annuity in Violation of RICO Not Proximately Caused by RICO Violation — Injury Is Derivative, Not Direct (Intimation of Different Result if Financial Support Required by Law) — RICO Injury Is Requirement for Statutory Standing (12(b)(6) Issue), Not Constitutional Standing (12(b)(1) Issue)

RICO — Neither Filing a Complaint Nor Issuing a Press Release Constitutes Wire Fraud — Litigation Privilege Is Absolute and Bars All Tort Claims Other Than Malicious Prosecution — Abuse of Process Claim Barred (California Law)

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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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