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.
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Rule 37 Sanctions — If Preclusion of Evidence in Practice Amounts to Dismissal of Claim, Willfulness, Bad Faith or Fault, and Other Prerequisites to Dismissal, Must Be Found

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Toyrrific v. Karapetian, 2015 U.S. App. LEXIS 9170 (9th Cir. June 2, 2015):

2. However, the district court erred as a matter of law by excluding the damages evidence under Rule 37(c)(1). See R & R Sails, 673 F.3d at 1247. Here, excluding damages evidence was fatal to Toyrrific's claim. Appellees moved for summary judgment on the basis that Toyrrific could not introduce evidence of damages. The district court in the same order (1) ruled on the discovery violation, (2) ordered the evidence excluded, and (3) granted summary judgment on the sole basis that, as a result of the exclusion of the evidence, Toyrrific could not prove the damages element of its breach of contract claim. "Thus in practical terms, the sanction amounted to dismissal of a claim." Id. Accordingly, the district court erred as a matter of law by imposing Rule 37(c)(1) exclusionary sanctions without finding that Toyrrific's "noncompliance involved willfulness, fault, or bad faith," and without considering "the availability of lesser sanctions." Id. at 1245, 1247.1

1.  We note that there is some tension in our law over the requirement that, before a sanction amounting to dismissal of a claim can be issued, the district court [*3]  must consider whether the claimed "noncompliance involved willfulness, fault, or bad faith" and must also consider "the availability of lesser sanctions." R & R Sails, 673 F.3d at 1247. The panel in R & R Sails distinguished Hoffman v. Constr. Protective Servs., Inc., 541 F.3d 1175 (9th Cir. 2008), which "reject[ed] the notion that the district court was required to make a finding of willfulness or bad faith to exclude the damages evidence . . . even when a litigant's entire cause of action will be precluded," 541 F.3d at 1180, by asserting that the sanction there was not tantamount to a dismissal of the entire claim. See 673 F.3d at 1247 n.1. We find this distinction questionable, but are bound to follow R & R Sails.

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Criminal Spoliation Can Be A Due Process Violation — Defendant Must Show That (1) The Evidence Had Exculpatory Value Before It Was Destroyed, (2) Defendant Is Unable to Obtain Comparable Evidence by Reasonable Means, and (3) Bad Faith Failure to Preserve

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

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(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

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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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