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 13, 2023

FRAP 38 Sanctions: (1) Mistake — A Colorable But Erroneous Argument — Is Not Properly Sanctioned under FRAP 38 — (2) FRAP 38 Particularly Apt When Losing Party in Arbitration Is Using Frivolous Arguments to Delay Collection of Award

Kinsella v. Baker Hughes Oilfield Operations, LLC, 66 F.4th 1099 (7th Cir. 2023) Opinion [*1101] An arbitrator rejected Donald Kinsella's claim that his employer, Baker Hughes, violated the Americans with Di ...
Kinsella v. Baker Hughes Oilfield Operations, LLC, 66 F.4th 1099 (7th Cir. 2023) Opinion [*1101] An arbitrator rejected Donald Kinsella’s claim that his employer, Baker Hughes, violated the Americans with Disabilities Act by failing to accommodate him after he suffered…
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Sanctions in the Form of Penalty Not Dischargeable in Bankruptcy — Award of Sanctions Not Subject to Statute of Limitations Defense

O'Dwyer v. Carter, 2023 U.S. App. LEXIS 10840 (5th Cir. May 3, 2023) (unpublished) PER CURIAM:* *1 Former attorney Ashton O’Dwyer, proceeding pro se, appeals from the dismissal of a suit that he filed in the United States District Court for the Eastern District of Louisiana. He has been disbarred f ...
O’Dwyer v. Carter, 2023 U.S. App. LEXIS 10840 (5th Cir. May 3, 2023) (unpublished) PER CURIAM:* *1 Former attorney Ashton O’Dwyer, proceeding pro se, appeals from the dismissal of a suit that he filed in the United States District…
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Rule 37(c)(1) sanctions for failure to disclose pursuant to Rule 26(a) — (1) Party facing Rule 37(c)(1) Sanctions Bears Burden of Proving Her Violations Were Substantially Justified or Harmless — (2) Ninth Circuit’s 4-Factor Test for Determining Whether Violation Is Harmless — (3) Parties Not Excused from Making Rule 26(a) Disclosures Simply Because They Don’t Have All Evidence — Must Disclose and Later Supplement — (4) When Rule 37(c)(1) Sanction Will Be Dispositive, Court Must Consider (a) Willfulness, Fault, Bad Faith and (b) Availability of Lesser Sanctions (9th Cir. Requirements) — (5) Court Is Required to Consider Lesser Sanctions Under Rule 37(c)(1) Only If Asked to Do So

Gryglak v. HSBC Bank USA, N.A., 2023 U.S. App. LEXIS 10946 (9th Cir. May 4, 2023) (unpublished) < ...
Gryglak v. HSBC Bank USA, N.A., 2023 U.S. App. LEXIS 10946 (9th Cir. May 4, 2023) (unpublished) MEMORANDUM* *1 Edyta Gryglak (“Gryglak”) appeals the district court’s summary judgment in favor of HSBC Bank USA, N.A., as trustee for Wells…
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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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