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

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 LEXIS 7203 (2d Cir. Mar. 27, 2024) (unpublished): SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment, entered on October 18, 2022, is AFFIRMED.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 LEXIS 8745 (11th Cir. Apr. 11, 2024) (unpublished): PER CURIAM: *1 Steve Thomas, proceeding pro se, appeals the district court’s grant of summary judgment for Walmart, his former employer, on his sexual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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(1) Order to Show Cause Why FRAP 38 Sanctions Should Not Issue Against Recidivist Filer of Frivolous Claims for Filing Brief Consisting Mostly of Unsubstantiated Accusations; (2) Vexatious Litigant Injunction to Issue If Any Monetary Penalty Not Paid Promptly

Henry v. Hall, 2024 U.S. App. LEXIS 8193 (7th Cir. Apr. 5, 2024): ORDER Michael Henry sued several Illinois circuit and appellate judges, and the Chief Justice of the Illinois Supreme Court, alleging that their actions in an ongoing state …
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(1) Post-Judgment Motion for Rule 11 Sanctions Violates Safe Harbor, Precluding Any Rule 11 Award — (2) Judicial Speculation That Target Would Not Have Withdrawn the Offending Paper Even If Given the Opportunity Insufficient: “[A]ssumptions Do Not Excuse Compliance with the Text of Rule 11” (Good Quote) — (3) Citing Potential Rule 11 Violations in Summary Judgment Papers Insufficient — Rule 11 Motion Required: “Thus, Informal Notice Is Only A ‘Professional Courtesy’ … Not The Official Notice That Starts The 21-Day Safe Harbor Period” (Good Quote) — (4) Court Could Have Imposed Sanctions Sua Sponte under Rule 11(c)(3), § 1927 or Inherent Power Sanctions

Caranchini v. Nationstar Mortg., LLC, 2024 U.S. App. LEXIS 7890 (8th Cir. April 3, 2024): Attorney Gregory Leyh and his law firm were sanctioned by the district court pursuant to Missouri Supreme Court Rule 55.03 and Federal Rule of Civil …
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(1) Sua Sponte Sanctions (3d Cir.): Reasonableness, Not Bad Faith, Is The Standard — Implicitly Rejecting the 2d Cir.’s Akin-to-Contempt Standard — (2) Sua Sponte Sanctions Require Extra Care Because of The Absence of the 21-Day Safe Harbor — (3) Appealability — Even Absent a Reprimand Or Other Sanction, A Court’s Finding of Sanctionable Conduct Injures A Lawyer’s Reputation Sufficiently to Confer Standing to Appeal — (4) Even Though Intent Is Not Required to Violate Rule 11, It Is Relevant to the Decision Whether to Sanction And, If So, What Sanction to Impose — (5) Rule 11 Imposes a Duty of Candor And Is Violated by Not Only by Misrepresentations But Also by Misleading Statements, Half-Truths, Inconsistencies, Mischaracterizations, Exaggerations, Omissions, Evasions And Failures to Correct Known Misimpressions — (6) Candor Is Critical in Ex Parte and Non-Adversarial Proceedings Where Both Sides Agree — (7) “Mild Sanctions” — Requiring an Apology in Writing And Ordering Better Conduct in Similar Cases in the Future

Wharton v. Superintendent Graterford SCI Phila. Dist. Attorney’s Off., 2024 U.S. App. LEXIS 5642, 95 F.4th 140 (3d Cir. 2024): Courts rely on lawyers’ honesty; lawyers may not mislead them. But the Philadelphia District Attorney’s Office did just that.…
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Expert (702) vs. Lay Opinion (701) Testimony: “The Line Between Expert And Lay Testimony Is Not Always Sharp” (Good Quote) — Owner of New Business Not Allowed to Offer Lay Opinion As to Lost Future Profits Where Basis Extended Beyond Knowledge He Possessed Due to His Position in the Company (His Own Perception) And Beyond The Reasoning Process of an Average Person in Everyday Life — Sandbagging with Late Opinion: “The Proper Function Of Rebuttal Evidence Is To Contradict, Impeach Or Defuse The Impact Of The Evidence Offered By An Adverse Party” (Good Quote) — Where Opinion Being Rebutted Is Not Admitted, There Is Nothing to Rebut —“ The Duty To Supplement Cannot Be Transformed Into A Right To Ambush Just Before Trial” (Good Quote)

Chi. Joe’s Tea Room, LLC v. Vill. of Broadview, 2024 U.S. App. LEXIS 4357, 94 F.4th 588 (7th Cir. 2024): This appeal presents a host of issues arising from an effort to prove lost profits for a business that…
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Recent Articles

RICO: Indirect Injury Unrecoverable — Indirect Purchaser Rule Imported from Antitrust

Rule 11 Sanctions: (1) Improper Purpose of Harassment Reasonably Determined Based on Past Tactics (25 Lawsuits, 14 Ethics Complaints, and 150 FOIA Requests) As Well As Present Behavior — (2) Hearings Are Not Only Not Required to Satisfy Due Process But, If The Record Is Otherwise Adequate, Are Affirmatively Discouraged

RICO and Probate Exception to Federal Jurisdiction: Federal Jurisdiction over RICO Claim Not Barred by Probate Exception Even If the Federal Judgment May Be Binding on the Probate Proceedings (Or Vice Versa) — Calculating Damages Based on Diminution of Value of Estate ≠ Administration of the Estate — Doesn’t Matter If RICO Misconduct Includes Defendants’ Actions with Respect to The Estate

RICO: No Causation Where Harm Flowed Several Steps After the Fraudulent Acts — RICO Causation Same As Antitrust Causation

Sanctions vs. Automatic Stay: Imposition of Sanctions (Here, Inherent Power Sanctions) Is Subject to the Police Power Exception to the Automatic Stay in Bankruptcy

The Word “Include” May Be A Word of Limitation As Opposed to a Word of Enlargement, Depending on the Context

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

Archives
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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