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

Greg Joseph

Rule 37 Sanctions: (1) Forfeiture of Objections to Produce Specific Categories of Documents (Including Tax Returns, Social Media Passwords) as Sanction for Violation of Discovery Order — (2) Default Judgment for Multiple Violations of Discovery Orders — (3) Ninth Circuit’s 5-Factor Test for Dismissal or Default Sanction — (4) Three Additional Factors Considered by Court of Appeals in Assessing Whether Lesser Sanctions Were Adequately Considered — (5) District Court Need Not Recite Each Factor: It Suffices If Record Permits Appellate Court to Apply Them — (6) Public Policy Favoring Disposition of Cases on the Merits Is Not Dispositive Where At Least 4 Factors “Support,” Or 3 Factors “Strongly Support,” Dismissal/Default — (7) And Lends Little Support to A Party Whose Conduct Impedes Adjudication on the Merits — (7) Order to Show Cause Why FRAP 38, § 1927 and Inherent Power Sanctions Should Not Issue for Multiple Misstatements Of Counsel At Oral Argument

Plaintiff-Appellee Transamerica Life Insurance Company (“Transamerica”) sued Defendants-Appellants Akop Arutyunyan and his daughter Anahit Arutyunyan1 for allegedly engaging in a conspiracy to defraud Transamerica into paying benefits under a long-term care insurance policy. Concluding that Defendants had repeatedly failed …
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Electronic Spoliation Sanctions: “Intent to Deprive” in Rule 37(e)(2) Means Willful Destruction of Evidence to Avoid Its Discovery by an Adverse Party — Relevant Circumstantial Evidence in Determining “Intent to Deprive” — Rule 37(e)(2)(C)’s Standards Trump Circuit’s Multi-Factor Test for Determining Whether Dismissal Is Appropriate — No Prejudice Required for 37(e)(2) Sanctions Because Intent to Deprive Creates Inference the Loss of Information Favored the Spoliator

Jones v. Riot Hosp. Grp. LLC, 2024 U.S. App. LEXIS 5251, 95 F.4th 730 (9th Cir. 2024): The district court dismissed this case under Federal Rule of Civil Procedure 37(e)(2) because of intentional spoliation of electronically stored information (“ESI”)…
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Sanctions and Appealability — Fifth Circuit’s 2023 Survey of Circuit Cases Concerning Whether Judgment of Dismissal As a Sanction Bars Review of Earlier Sanctions Orders Due to Lack of Jurisdiction or Whether The Decision to Review Pre-Dismissal Sanctions Orders Is Prudential

Edge v. TLW Energy Servs., L.L.C., 2023 U.S. App. LEXIS 11130 (5th Cir. May 5, 2023) (unpublished) Per Curiam:* Primarily at issue is whether the district court abused its discretion by sua sponte dismissing this action with prejudice for…
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Sanctions and Appealability — Prior Sanctions Orders Do Not Merge into Judgment of Dismissal Imposed As Sanction under Rules 16(f), 37(b) and 41(b) and Are Unappealable — Courts of Appeal Differ As to Whether This Lack of Reviewability Is Jurisdictional or Discretionary (Jurisdictional in Second Circuit)

Marquez v. Silver, 2024 U.S. App. LEXIS 7206 (2d Cir. Mar. 27, 2024): Plaintiff-Appellant Alexis Marquez, an attorney proceeding pro se, alleged that an Acting New York State Supreme Court Justice harassed her and subjected her to inappropriate behavior during…
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Sanctions Enforcement and Appealability: Failure to Pay Rule 37 Sanctions and Otherwise Comply with Discovery Orders Leads to Dismissal under Rule 41(b) — Second Circuit Factors for Dismissal for Failure to Prosecute or Comply with Court Orders — Belated, Partial Compliance with Orders Does Not Deprive District Court of Discretion to Dismiss Based on Continuing Non-Compliance with Other Aspects of Orders — “Hopelessly Belated Compliance” with Court Orders Not Accorded Great Weight — Prior Sanctions Orders Do Not Merge into Judgment of Dismissal under Rule 41(b) And Are Unreviewable

Friedman v. Bloomberg, L.P., 2024 U.S. App. LEXIS 7203 (2d Cir. Mar. 27, 2024) (unpublished): SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment, entered on October 18, 2022, is AFFIRMED. Plaintiff-Appellant Dan …
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Electronic Spoliation Sanctions: The “Intent to Deprive” Standard in Rule 37(e)(2) Is The Equivalent of Bad Faith in Other Spoliation Contexts — Bad Faith Generally Means Destruction For The Purpose Of Hiding Adverse Evidence — Mere Negligence Is Insufficient Because It Does Not Sustain An Inference of Consciousness of a Weak Case

Thomas v. Walmart, Inc., 2024 U.S. App. LEXIS 8745 (11th Cir. Apr. 11, 2024) (unpublished): PER CURIAM: *1 Steve Thomas, proceeding pro se, appeals the district court’s grant of summary judgment for Walmart, his former employer, on his sexual harassment…
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Sanctions and Attorney-Client Privilege: Sham (Objectively Baseless, Bad Faith) Litigation for Antitrust Purposes Triggers Crime-Fraud Exception — Not All Frivolous Litigation Falls within Crime-Fraud Exception (But Some Sanctionable Behavior Clearly Does)

In re Abbott Labs., 2024 U.S. App. LEXIS 5755, 96 F.4th 371 (3d Cir. Feb. 22, 2024) INTRODUCTION The underlying litigation in the matter before us sounds in patent and antitrust law. What we are presented with here, however, …
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Rule 37(c)(1) Sanctions — Exclusion of Retained Expert for Failure to Provide 26(a)(2)(B) Report — Factors (Sixth Circuit) — The Importance of The Evidence Factor Cuts Both Ways: “The More Important The Proof, The Greater The Effect Of Preclusion, But Also The Greater The Harm In Tardy Disclosure”

RJ Control Consultants, Inc. v. Multiject, LLC, 2024 U.S. App. LEXIS 7938 (6th Cir. Apr. 3, 2024): *1 This case involves the alleged infringement of a copyright on software code used in an industrial control system. This is the third…
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(1) Bankruptcy Courts Have Only Civil Contempt Powers; (2) All Monetary Contempt Sanctions Must Be Civil — Designed Either to Coerce Compliance Or Compensate a Party for the Contemnor’s Violation, and Not Have As A Primary Purpose to Vindicate the Authority of the Bankruptcy Court Or Punish the Contemnor

Matter of Highland Capital Mgmt., LP (Charitable DAF Fund LP v. Highland Capital Mgmt., LP), 2024 U.S. App. LEXIS 8129, 2024 WL 1450065 (5th Cir Apr. 4, 2024): *1 A bankruptcy court held Appellants in civil contempt and ordered them…
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Rule 11 and Inherent Power Sanctions: Vexatious Litigant Injunction (VLI) Broadened to Bar Any Further Filings in Issuing District Court Due to Violation of Narrower VLI And Failure to Pay Monetary Sanctions

Am. Ass’n for Lab’y Accreditation, Inc. v. Hutchinson, 2024 U.S. App. LEXIS 8189 (7th Cir. Apr. 3, 2024) (unpublished): ORDER* Robert Hutchinson appeals the district court’s order enforcing a filing bar against him. The district judge enforced the filing …
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Recent Articles

RICO — Pleading Conspiracy — Plaintiffs Must Plausibly Allege That the Defendants Knowingly Joined the RICO Conspiracy — Sparse Allegations of Knowledge of Fraud Due to Participation in a Commercial Transaction Insufficient to State RICO Conspiracy Claim Where Allegations Not Inconsistent with Ordinary Commercial Behavior — While Knowledge May Be Pled “Generally” under Rule 9(b), It Cannot Be Alleged Conclusorily and Must Satisfy the Twiqbal Plausibility Standard

Depositions: Improper to Object to Form to Straightforward Questions (Not Compound, Vague, Leading or Speculative) — Lack of Foundation Objection Improper in 30(b)(6) Deposition — Improper to “Educate” Witness During Breaks of 30(b)(6) Deposition Through Witness Calls to Knowledgeable Corporate Colleagues — Magistrate Judge May Impose Financial Sanctions

Spoliation/Sanctions: “A Party Does Not Spoliate Evidence When, Without Notice Of The Evidence’s Potential Relevance, It Destroys The Evidence According To Its Policy Or In The Normal Course Of Its Business” (Good Quote)

RICO: Fraud on Government Entities Causing Plaintiffs to Pay More for Inmate Calls Actionable on Bridge v. Phoenix Bond Analysis — Fact That Governments Had Separate Injuries As Part of the Scheme (from Reduced Commissions) Irrelevant — Plaintiffs’ Injuries Not Derivative of Governments’ — The Fraud on the Governments Was Not Too Distinct From Plaintiffs’ Injuries But Rather Necessary to Injure Plaintiffs — No Risk of Duplicative Recoveries and No Plaintiff Better Situated to Sue for Plaintiffs’ Injuries

Inherent Power Sanctions — Dismissal for Threatening Defendant and Magistrate Judge — No First Amendment Right to Threaten Violence

RICO: Domestic Injury — Delivery of Fraudulently Non-Conforming Goods FOB Los Angeles for Shipment to China Means Injury Arose Domestically When Purchaser Took Title —Other Relevant Factors Include That The Non-Conforming Goods Were Sourced and Made in the U.S. and The Racketeering Activity (Mail/Wire Fraud) Occurred in, and Was Directed from, the United States — Irrelevant to Domestic Injury Inquiry Whether Property Is Tangible or Intangible — 7th Circuit’s “Injury-Felt” Test of Domestic Injury Rejected by Supreme Court — RICO Standing Requires Concrete Financial Loss, Not Merely Injury to Valuable Intangible Property Interest (9th Circuit)

RICO Causation: Parents of Children with Disabilities Deprived In-Person Education and Services during the Pandemic Were Not Causally Injured by Teachers’ False Assurances to Federal Authorities That IDEA-Complaint Policies Were in Place, Which Caused Funds to Issue But Not to the Benefit of the Disabled Children — Damages Too Indirect — Proper Plaintiff Is U.S. Government — Private Injunctive Relief Under RICO Uncertain in Third Circuit

Sanctions: Rule 37(b)(2) Dismissal — Sixth Circuit Factors

Inherent Power Sanctions — Extrajudicial Misconduct: Sanctions Power Extends to Conduct Intended to Sabotage Court’s Ability to Adjudicate the Case Before It, Here, By Commencing State Court Actions Seeking to Enjoin the Federal Plaintiffs from Proceeding with Their Federal Litigation — Sanctions Fee Awards: The Factors Used For Calculating A Fee Award To A Prevailing Party Do Not Govern — Under Goodyear, the Relevant Inquiry Is Whether There Is A Sufficient Causal Link Between The Sanctioned Misconduct And The Fees Awarded

RICO: Members of Association-in-Fact Enterprise Must Act with a Common Purpose—Mere Allegation That Various Defendants Agreed at Different Times to Engage in Various Fraudulent Schemes Does Not Plausibly Support the Essential Inference, That They Acted with s Sufficiently Common Purpose

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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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