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

August 10, 2023

Fraud on the Court

Nat’l Oilwell Varco, LP v. Auto-Dril, Inc., 68 F.4th 206 (5th Cir. 2023): “To establish fraud on the court, ‘it is necessary to show an unconscionable plan or scheme which is designed to improperly influence the court in its decision.’ ”
Nat’l Oilwell Varco, LP v. Auto-Dril, Inc., 68 F.4th 206 (5th Cir. 2023): “To establish fraud on the court, ‘it is necessary to show an unconscionable plan or scheme which is designed to improperly influence the court in its decision.’…
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Inherent Power Sanctions – Extrajudicial Misconduct: 1. Unilaterally obtaining $300 million arbitration award, absent an arbitration agreement or notice to adversary, is sanctionable even though it precedes commencement of bad faith attempt to confirm award in federal court. 2. District Court retained jurisdiction to rule on sanctions motion filed prior to notice of appeal of decision vacating arbitration award. 3. FRAP 38 appellate sanctions denied for failure to make separate motion.

Matios v. City of Loveland, 2023 U.S. App. LEXIS 15749 (10th Cir. June 23, 2023) (unpublished)
Matios v. City of Loveland, 2023 U.S. App. LEXIS 15749 (10th Cir. June 23, 2023) (unpublished) Eyoel-Dawit Matios, proceeding pro se, appeals from the district court’s order imposing monetary sanctions under its inherent powers. Exercising jurisdiction under 28 U.S.C. § …
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Rule 11 and Inherent Power Sanctions for (1) Filing Brief Generated by AI (ChatGPT) Filled with Fake and Nonsensical Cases, (2) Failing to Confirm the Authenticity of the Cases, (3) Failing to Make Any Inquiry to Determine If the Assertions of Law Were Correct, (4) Advocating for The Fake Cases After Being Informed by Adversary That the Cases Could Not Be Found, (5) Lying to the Court About Why Continuance Needed and Role of AI in Research — Conscious Avoidance Sufficient to Prove Knowledge —$5,000 Non-Compensatory Penalty Assessed — Offenders Must Notify Client and Judges Wrongly Named in the Fake Cases—“Nothing Inherently Improper About Using a Reliable Artificial Intelligence Tool for Assistance”

Mata v. Avianca, Inc., 2023 U.S. Dist. LEXIS 108263 (S.D.N.Y. June 22, 2023) Rule 11 and Inherent Power Sanctions for (1) Filing Brief Generated by AI (ChatGPT) Filled with Fake and Nonsensical Cases, (2) Failing ...
Mata v. Avianca, Inc., 2023 U.S. Dist. LEXIS 108263 (S.D.N.Y. June 22, 2023) Rule 11 and Inherent Power Sanctions for (1) Filing Brief Generated by AI (ChatGPT) Filled with Fake and Nonsensical Cases, (2) Failing to Confirm the Authenticity of …
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Inherent Power Sanctions — Clear-and-Convincing-Evidence Required (10th Circuit) — Evidence Rules Do Not Govern Sanctions Proceedings — Civil Rules Do Not Recognize a “Motion to Reconsider” As Opposed to Rule 59(e) Motion to Alter or Amend a Judgment, Which Requires “Manifest Error” or New Evidence — Abuse of Discretion Review (But Invocation of Inherent Power Is Reviewed De Novo (See Dissent)) — For Reversal, Appellate Court Must Be “Firmly Convinced … the District Court Erred in Finding … It Was Highly Probable That the [Offender] Acted in Bad Faith“ — Extrajudicial Misconduct: Witness Intimidation by Commencing Multimillion Dollar Arbitration Against Witness — Inherent Power Sanction Within District Court’s Jurisdiction When Acting Pursuant to a Strictly Limited Remand (Dissent Disagrees) — Sanctions for Arbitration Conduct Permissible Where Arbitration Threatened Court’s Proceedings — Permissible for Court to Evaluate Frivolousness of Claims in the Arbitration — Frivolousness, Alone, May Not Be Enough — Due Process Satisfied by Show-Cause Order — Monetary Award Was Civil Because It Was Limited to Fees Incurred in Federal Court Seeking Sanctions, Not Conduct in Arbitration— Fact Witness Intimidation Fails Does Not Negate Causation of Costs Incurred in Pursuing Sanctions — Failure to Reduce Requested Fees Does Not Mean Court Failed to Exercise Discretion

Becker v. Ute Indian Tribe, 2023 U.S. App. LEXIS 20430 (10th Cir. Aug. 8, 2023) ORDER AND JUDGMENT* *1 Lynn Becker and the Ute Indian Tribe have been mired in litigation for nearly two decades. Mr. Becker’s relationship with the Tribe began in 2004, when the Tribe hired him to help ...
Becker v. Ute Indian Tribe, 2023 U.S. App. LEXIS 20430 (10th Cir. Aug. 8, 2023) ORDER AND JUDGMENT* *1 Lynn Becker and the Ute Indian Tribe have been mired in litigation for nearly two decades. Mr. Becker’s relationship with…
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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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