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 LEXIS 35917 (D.C. Cir. Dec. 29, 2022) (unpublished): JUDGMENT This petition for review was considered on the record from the National Transportation Safety Board and on the briefs and or ...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 LEXIS 35917 (D.C. Cir. Dec. 29, 2022) (unpublished): JUDGMENT This petition for review was considered on the record from the National Transportation Safety Board and on the briefs and oral argument of the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

(1) Appellate Review of Inherent Power Sanctions (7th Circuit): Factual Findings Reviewed for Clear Error, Choice of Sanction for Abuse of Discretion — 4-Element Test for Reversal; (2) Sanctions and Class Actions: Monetary Sanctions Properly Imposed on Defendants for Improper Communications with Class Members (Represented Parties) — “[I]f The Class And The Class Opponent Are Involved In An Ongoing Business Relationship, Communications From The Class Opponent To The Class May Be Coercive” (Good Quote); (3) Monetary Sanctions under Goodyear v. Haeger: If Same Fact-Gathering Would Have Been Conducted Absent The Misconduct, No But-For Causation — But Only “Rough Justice” Required, “Not Accountant-Like Precision” (Good Quote) — Once Misconduct Is Clear, Time Spent Ferreting It Out Compensable under Goodyear; (4) Goodyear Did Not Overrule Long-Standing Rule That Courts May Impose Modest Civil Monetary Sanctions to Curb Litigation Abuse; (5) Appellate Jurisdiction Lacking Where Sanctioned Attorney Fails to File Notice of Appeal and Lawyer’s Intent to Appeal Not Apparent from Client’s Notice; (5) Rule 11 Improper Purpose — Party May Have Many Purposes for Pursuing Claim — As Long As Claim Is Supported by Good Faith Belief in the Merits, “A Parallel Reason Does Not Violate Rule 11” — To Deny A Motion for Sanctions, The District Court Need Not Address Every Argument: “Arguments Clearly Without Merit Can, And For The Sake Of Judicial Economy Should, Be Passed Over In Silence” (Good Quote); Non-Monetary Sanction on Counsel: Complete Twice The Required Amount Of Professional Responsibility Hours For Her Next Continuing Legal Education Cycle Imposed By The State Bar

(1) Spoliation: Sanctions Are Warranted Only If the Movant Establishes That A Reasonable Trier of Fact Could Find That The Destroyed Evidence Would Support A Claim Or Defense — § 1927 Sanctions: “Courts Often Refuse to Award Sanctions When Both Parties Contributed to the Waste of Judicial Resources” (Good Quote)

No Sanctions Imposed on Counsel Who Submitted A.I.-Generated Phony Cases Without Checking Them in Good Faith on The Mistaken Assumption They Had Been Provided by Highly Respected Co-Counsel Rather Than His Criminally-Convicted, Disbarred Client — No Sanctions on Client Who Had No Access to LEXIS or Westlaw to Check the Phony Cases and Submitted Them in Good Faith: “It Would Have Been Downright Irrational For Him To Provide Fake Cases For [His Lawyer] To Include In The Motion Knowing They Were Fake —

(1) Electronic Spoliation — Rule 37(e)(2) Dismissal Sanction — Temporal Proximity of Spoliation to Production Due Date = Circumstantial Evidence of Intent; (2) While Discovery Sanctions Are Reviewed For Abuse Of Discretion, Findings Of Fact Related To Discovery Sanctions Are Reviewed For Clear Error; (3) Dismissal under Rule 37(e)(2) Plus Attorney’s Fees under Inherent Power Appropriately Combined [But see 2015 Advisory Committee Note: “New Rule 37(e) … authorizes and specifies measures a court may employ if information that should have been preserved is lost, and specifies the findings necessary to justify these measures. forecloses reliance on inherent authority or state law to determine when certain measures should be used.”]; (4) Compensatory Sanctions under Goodyear v. Haeger Appropriately Include Fees and Costs Resulting from Attempts to Settle Spoliation Motion

(1) FRAP 38 Sanctions Inapt for Appeal That Is Weak — “Borderline Frivolous” — Test Is Whether Appellant Should Have Known the Appeal Had Absolutely No Chance of Success — (2) Lay Opinion Testimony under Rule 701: Nub of Helpfulness Requirement Is to Exclude Testimony When the Witness Is No Better Suited Than the Jury to Assess the Issue; (3) Appeals: No Appeal from Denial of Motion for Judgment As a Matter of Law Unless Appellant Made That Motion Before Case Was Submitted to Jury

(1) § 1927 and Inherent Power Sanctions — Extrajudicial Misconduct After Obtaining Verdict: Filing Lis Pendens Based on False Statements and in Violation of Governing Law, Filing Fraudulent Abstracts of Judgment That Represented They Had Been Court-Issued; (2) Rule 37 Sanctions for Baseless Motion to Compel Required Unless Target Shows That the Motion Was Substantially Justified Or Other Circumstances Make An Award Of Expenses Unjust

Rule 37 Dismissal Factors (10th Circuit) — Rule 37(d) Sanctions Apply Without Regard to Whether the Court Has Ordered the Delinquent Party to Appear for His, Her or Their Deposition

Rule 37 Dismissal Factors (Sixth Circuit) — Refusal to Answer Deposition Questions on Relevancy Grounds Is Not Valid Rule 30(c)(2) — Pro Se Deponent’s Attendance At Zoom Deposition While Driving A Semi, Refusing to Answer Questions, Inter Alia, Held Contumacious

Rule 26(a)(1) Disclosures and Rule 37 Preclusion: Rule 26 Does Not Require Disclosure of Legal Theories Underlying Damages Computations Provided Pursuant to 26(a)(1)(A)(i)

Rule 37 Sanctions: (1) Forfeiture of Objections to Produce Specific Categories of Documents (Including Tax Returns, Social Media Passwords) as Sanction for Violation of Discovery Order — (2) Default Judgment for Multiple Violations of Discovery Orders — (3) Ninth Circuit’s 5-Factor Test for Dismissal or Default Sanction — (4) Three Additional Factors Considered by Court of Appeals in Assessing Whether Lesser Sanctions Were Adequately Considered — (5) District Court Need Not Recite Each Factor: It Suffices If Record Permits Appellate Court to Apply Them — (6) Public Policy Favoring Disposition of Cases on the Merits Is Not Dispositive Where At Least 4 Factors “Support,” Or 3 Factors “Strongly Support,” Dismissal/Default — (7) And Lends Little Support to A Party Whose Conduct Impedes Adjudication on the Merits — (7) Order to Show Cause Why FRAP 38, § 1927 and Inherent Power Sanctions Should Not Issue for Multiple Misstatements Of Counsel At Oral Argument

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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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