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 13, 2023

RICO § 1964(c): Where Federal and State Law Conflict, State Law Does Not Control in Determining Whether Plaintiff Suffered Injury to Business Or Property for RICO Purposes

Shulman v. Kaplan, 58 F.4th 404 (9th Cir. 2023) *407 The question presented in this case is whether Appellants, a cannabis entrepreneur and two cannabis businesses, have standing to bring claims arising pursuant to the Racketeer Influenced and Corrupt Organizations Act (RICO),
Shulman v. Kaplan, 58 F.4th 404 (9th Cir. 2023) *407 The question presented in this case is whether Appellants, a cannabis entrepreneur and two cannabis businesses, have standing to bring claims arising pursuant to the Racketeer Influenced and Corrupt Organizations …
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Rule 11 – Unequivocal Request to Withdraw Action Without Prejudice Within 21 Days of Motion Satisfies Safe Harbor, Even If Action Not Formally Dismissed Until After 21-Day Period Has Expired – No Requirement to Agree to Dismiss With Prejudice

Thompson v. Steinberg, 2023 U.S. App. LEXIS 1603 (2d Cir. Jan. 23, 2023) (unpublished): Key Takeaways: We generally review a decision resolving a motion for
Thompson v. Steinberg, 2023 U.S. App. LEXIS 1603 (2d Cir. Jan. 23, 2023) (unpublished): Key Takeaways: We generally review a decision resolving a motion for Rule 11 sanctions for abuse discretion. …. However, within that framework, we review de novo …
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Merely Not Following Through With Notice To File Rule 11 Motion Is An Insufficient Basis on Which to Conclude That The Threat Was Meritless — But It Is Some Evidence

Pocket Plus, LLC v. Pike Brands, LLC, 53 F.4th 425 (8th Cir. 2022): *1 Pocket Plus, LLC, sued Pike Brands, LLC (“Running Buddy”) for trade-dress infringement of Pocket Plus’s portable pouch. The district court1 granted summary judgment to Running Buddy and awarded it a portion of its requested attorne ...
Pocket Plus, LLC v. Pike Brands, LLC, 53 F.4th 425 (8th Cir. 2022): *1 Pocket Plus, LLC, sued Pike Brands, LLC (“Running Buddy”) for trade-dress infringement of Pocket Plus’s portable pouch. The district court1 granted summary judgment to Running…
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Spoliation – Rule 37(e) – Even If Document Retention Policy Violated, Additional Evidence of Bad Faith May Be Required for an Adverse Inference Instruction

Lear Corp. v. NHK Seating of Am. Inc., 2022 U.S. Dist. LEXIS 212542, 2022 WL 17176836 (E.D. Mich. Nov. 23, 2022): OPINION AND ORDER DENYING THE DEFENDANTS' [*2]  MOTION FOR SANCTIONS BASED ON LEAR'S SPOLIATION OF EVIDENCE [280]
Lear Corp. v. NHK Seating of Am. Inc., 2022 U.S. Dist. LEXIS 212542, 2022 WL 17176836 (E.D. Mich. Nov. 23, 2022): OPINION AND ORDER DENYING THE DEFENDANTS’ [*2]  MOTION FOR SANCTIONS BASED ON LEAR’S SPOLIATION OF EVIDENCE [280] Lear…
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Inherent Power: Does the Clear-and-Convincing Standard Apply to the Inherent Power to Sanction or Only to the Inherent Power to Vacate a Judgment for Fraud on the Court? — Only the Latter in the Sixth Circuit

Jaiyeola v. Toyota Motor N. Am., Inc., 2022 WL 18401018 (6th Cir. 2022) (unpublished): ORDER *1 Ganiyu Ayinla Jaiyeola, a pro se California resident, appeals the district court’s order denying his motion for sanctions against two defense attorneys. Jaiyeola has filed two motions asking this court take judicial notice that he is suing a third defe ...
Jaiyeola v. Toyota Motor N. Am., Inc., 2022 WL 18401018 (6th Cir. 2022) (unpublished): ORDER *1 Ganiyu Ayinla Jaiyeola, a pro se California resident, appeals the district court’s order denying his motion for sanctions against two defense attorneys. Jaiyeola has…
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Spoliation — “Intent” for purposes of Rule 37(e)(2) Is Satisfied If It Is Reasonable to Infer That the Alleged Spoliator Purposefully destroyed evidence to Avoid Its Litigation Obligations

Estate of Moreno v. Corr. Healthcare Cos., 2020 U.S. Dist. LEXIS 108370, 2020 WL 5740265 (E.D. Wash. June 1, 2020): ORDER GRANTING PLAINTIFFS'
Estate of Moreno v. Corr. Healthcare Cos., 2020 U.S. Dist. LEXIS 108370, 2020 WL 5740265 (E.D. Wash. June 1, 2020): ORDER GRANTING PLAINTIFFS’ RULE 37(e) MOTION FOR DEFAULT JUDGMENT BEFORE THE COURT is Plaintiffs’ Rule 37(e) Motion…
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Sixth Circuit Joins Seventh in Holding That The Inherent Power Sanctions May Be Imposed on Third-Party Non-Lawyer (Here, Ex-Lawyer) Engaged in The Unauthorized Practice of Law

United States v. Jones, 2023 U.S. App. LEXIS 3317 (6th Cir. Feb. 9, 2023) (unpublished): *1 Following a trial by jury, Defendant Elmer Jones appeals his conviction on four counts of possession with intent to distribute controlled substances in violation of
United States v. Jones, 2023 U.S. App. LEXIS 3317 (6th Cir. Feb. 9, 2023) (unpublished): *1 Following a trial by jury, Defendant Elmer Jones appeals his conviction on four counts of possession with intent to distribute controlled substances in violation…
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Recent Articles

1) Rule 11 Sanctions: “No First Amendment Exception to a Rule 11 Violation” — “[T]he First Amendment Covers Novel, Nonfrivolous Arguments, But Many Frivolous Arguments Are Also Novel” (Good Quotes) — Frivolous To Continue To Make Rejected Novel Arguments; (2) FRAP 38 Sanctions: District Court In Best Position to Set Sanctions, Attorney’s Fees and Costs

3 Prerequisites for Inherent Power and § 1927 Sanctions in Second Circuit: (1) Bad Faith, (2) Conduct That Is Entirely Without Color [Thus, An Ill-Motivated Colorable Position Appears to Be Protected in the Second Circuit], and (3) Improper Purpose— “To Gain A Strategic Advantage” Is An Improper Purpose — Due Process Satisfied by Opponent’s Motion and Multiple Court Conferences, After Which Target Was Allowed to Submit Additional Letters

Inherent Power Sanctions — Untimeliness as Laches — Laches Properly Applied to Deny Sanctions Motion — Note Waived Defenses to Laches

Rule 37(c)(1) Sanctions: Substantial Justification or Harmless Error (Ninth Circuit Factors) — Erie: When State Supreme Court Has Not Squarely Addressed an Issue, Circuit Must Predict How It Would Rule, Using Intermediate Appellate Decisions, Decisions from Other Jurisdictions, Statutes, Treatises And Restatements for Guidance

(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

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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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