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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Inherent Power Sanction Imposed on Attorney for Failure to Monitor ECF and Missing a Hearing That Was Noticed Only Electronically and Just Two Days before the Hearing Date

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United States v. Romero-Lopez, 2011 U.S. App. LEXIS 22897 (1st Cir. Nov. 16, 2011):

Attorney ... was sanctioned by the district court, under its inherent powers, in the amount of $1,500 for failing to appear at the rescheduled sentencing hearing for his client, a criminal defendant. We affirm the issuance of the sanction, but reduce the amount.***

The district court did not abuse its discretion in imposing a sanction. Attorneys have an obligation to remain informed about the status of their cases and comply with applicable scheduling orders issued by the court. See, e.g., Rosario-Diaz v. Gonzalez, 140 F.3d 312, 314 (1st Cir. 1998) (parties are "fully chargeable with knowledge of what the docket disclosed"); Witty v. Dukakis, 3 F.3d 517, 520 (1st Cir. 1993) ("[P]arties to an ongoing case have an independent obligation to monitor all developments in the case . . . ."). When electronic case filing is utilized, as here, counsel needs to monitor the docket for electronic filings. The attorney's failure to monitor for electronic notices constituted a violation of this obligation. Further, his failure to appear at the rescheduled hearing, or provide the court with any notice of unavailability, imposed an unnecessary burden on an extremely busy court, as well as the other participants.

Footnote 1. Indeed, the attorney's motion for reconsideration, to his credit, properly admitted that he had "an affirmative duty to monitor the electronic filing system for entry of new filings or Orders."

We do think a lesser penalty suffices. The Supreme Court has admonished courts to be cautious in using their inherent power to sanction, explaining that "[b]ecause of their very potency, inherent powers must be exercised with restraint and discretion." Chambers, 501 U.S. at 44. "[T]here is much to be said for deploying the least extreme sanction reasonably calculated to achieve the appropriate punitive and deterrent purposes." Kouri-Perez, 187 F.3d at 8. In the circumstances of this case, where the time for the sentencing hearing was changed less than two days before the hearing, and where there is no indication of an intentional flouting of the court's authority or repeated tardiness, a lesser sanction will suffice to deter future violations. A $500 sanction would be more appropriate in these circumstances. See Bills v. United States, 11 Fed. App'x 342 (4th Cir. 2001) (per curiam) (affirming district court's imposition of a $500 inherent powers sanction for an attorney's failure to appear at a sentencing hearing).

Additionally, we note that when a court is considering invoking its inherent power to sanction, the much better practice is for the court to hear from the offending attorney before imposing any sanctions. While [the lawyer] was ultimately given an opportunity to explain himself in his motion for reconsideration, and denial of the intemperate motion was understandable, it is preferable to hear counsel's explanations prior to imposition of sanctions.

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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

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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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