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

Spoliation Sanctions: Rule 37(e)(2)’s Intent-To-Deprive Standard Is The Same Bad Faith Standard Historically Applied In Pre- Rule 37 Spoliation Cases And Still Applied In Cases Of Non-Electronic Spoliation — Prejudice To The Defendant Need Not Be Shown Under Rule 37(b)(2) — Even Though Litigation Hold Issued, Bad Faith Reasonable Inferred From Failing To (i) Back Up Text Messages, (ii) Educate Recipients About Litigation Hold, (iii) Collect Cell Phone Data For 7 Months, And (iv) Suspend Policy Of Wiping Data — No Affirmative Act Is Required To Sustain A Finding Of Bad Faith Based On Circumstantial Evidence, Either Under Rule 37(e) Or Bad Faith Case Law

Skanska United States Civil Se. Inc. v. Bagelheads, Inc., 2023 U.S. App. LEXIS 19942 (11th Cir. Aug. 2, 2023): *1 Hurricane Sally hit Pensacola Bay with a vengeance in September 2020, and 28 barges moored in the Bay were not…
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Post-Judgment Sanctions — Circuit Split: District Court Lacks Jurisdiction Over Motion for § 1927 Sanctions Made After Appellate Mandate Issues (Appears to Require Motion Prior to Filing of Notice of Appeal) — Post-Mandate Motion Can Seem Like an Ambush of a Losing Party Prepared to Accept a Loss Without a Pending Sanctions Motion — In Accord With All Circuits: District Court Retains Jurisdiction To Entertain Motion To Impose Inherent Power Sanctions Made After Mandate Issues — When a Number of Other Circuits Reject a Circuit’s Position, and No Other Circuit Accepts It, The Interest in Avoiding Inter-Circuit Conflict May Justify Abandoning The Position

Feehan v. Evers, 2023 U.S. App. LEXIS 19901 (7th Cir. Aug. 2, 2023) (unpublished) ORDER On December 1, 2020, plaintiff-appellee William Feehan filed this suit in the United States District Court for the Eastern District of Wisconsin. The complaint sought …
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Inherent Power Sanctions (Criminal Case): Punitive Sanctions Awardable Even If Some Non-Frivolous Arguments Are Combined With The Frivolous Arguments — Is Bad Faith A Prerequisite for Inherent Power Sanctions Other Than Attorney Fees? — Factors In Assessing Financial Penalties Include Ability To Pay And Likelihood That Financial Penalty Will Have Some Deterrent Effect

United States v. Akers, 2023 U.S. App. LEXIS 20142, *1 (10th Cir. Aug. 4, 2023): *1 Montgomery Akers appeals from a district court order imposing upon him a $40,000 punitive sanction for advancing frivolous arguments and assertions in a request …
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INHERENT POWER SANCTIONS FOR INTENTIONAL SPOLIATION OF EVIDENCE: DEFAULT JUDGMENT ON LIABILITY AND CAUSATION, PRECLUSION OF CONTRIBUTORY NEGLIGENCE DEFENSE — DETERRENCE IMPORTANT DUE TO SPOLIATOR’S “DEMONSTRATED PATTERN OF ABUSE” — DUE PROCESS SATISFIED BY OPPONENT’S MOTION, WHICH PROVIDED CLEAR NOTICE OF THE FACT SANCTION WERE UNDER CONSIDERATION, THE REASONS WHY, AND THE TYPES OF SANCTIONS BEING CONSIDERED

Anderson v. BNSF Rwy. Co., 2023 WL 4418221 (S.D. Iowa July 6, 2023): INTRODUCTION *1 In this Federal Employers’ Liability Act case, Plaintiff Bradley A. Anderson alleges he was injured when he hit his head on a sign placed too …
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Inherent Power — Do Federal Courts Have the Power to Impose Inherent Power Sanctions in Criminal Cases? — Undecided in Sixth Circuit — Vexatious Litigant Filing Restriction Requires Findings That Party Has Engaged in Repetitive, Frivolous Litigation — Federal Courts Lack Coram Nobis Jurisdiction Over a Criminal Defendant While the Defendant Is In Custody — A Deported Defendant Is Not In Custody, Even If Technically on Supervised Release, Which Typically Counts As “Custody”

United States v. Petlechkov, 2023 U.S. App. LEXIS 16349, 2023 WL 4230905 (6th Cir. June 28, 2023):   *1 This is Dimitar Petlechkov’s third time before us. He now challenges the final forfeiture order entered in his criminal case…
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Inherent Power — Perils of Protective Orders: Fugitive Defendant Properly Denied Access to Confidential Discovery Materials Because, Having Removed Himself from The Jurisdiction of The District Court, The Court Could Not Enforce the Protective Order Against Him — Discovery Access Limitation Thus a Reasonable Exercise of the Court’s Inherent Authority to Protect Its Own Discovery Orders

United States SEC v. Iftikar A. Ahmed, 2023 U.S. App. LEXIS 16310, 2023 WL 4219923 (2d Cir. June 28, 2023):   *1 Defendant Iftikar Ahmed defrauded his former employer and its investors of some $65 million over the span…
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Supreme Court: Associational Standing — If Traditional 3-Part Test Is Satisfied, and the Organization Has Identified Members and Represents Them In Good Faith, Associational Standing Is Satisfied

Students for Fair Admissions, Inc. v. President, 2023 U.S. LEXIS 2791, 2023 WL 4239254 (U.S. June 29, 2023): Chief Justice Roberts delivered the opinion of the Court. In these cases we consider whether the admissions systems used by Harvard…
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Supreme Court: Corporation Subject to Suit (Personal Jurisdiction) in Any State in Which It Registers to Do Business If The Registration Statute Makes Consent to Suit A Condition of Registration (5-4) – However, The Concurring Fifth Justice Believes That Such Statutes May Violate The Dormant Conference Clause, And The 4-Justice Dissent Points Out That Few Registration Statutes Require Consent to Jurisdiction And Suit

Mallory v. Norfolk S. Ry. Co., 2023 U.S. LEXIS 2786, 2023 WL 4187749 (U.S. June 27, 2023) (5-4 opinion) Justices Thomas, Alito, Sotomayor, and Jackson joined with respect to Parts I and III-B. Justices Thomas,…
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Supreme Court: RICO – Domestic Injury Determined Contextually — Court Considers All Case-Specific Facts Bearing — Domestic Injury Exists When The Circumstances Surrounding The Injury Indicate It Arose In The United States — Issue Is Not Merely Where The Injury Is Felt — Other Factors: Whether Racketeering Activity Occurred in the United States, Whether Racketeering Activity That Occurred Abroad Was Initiated In Or Directed Toward The United States

Yegiazaryan v. Smagin, 2023 U.S. LEXIS 2635, 2023 WL 4110234 (U.S. June 22, 2023): Respondent Vitaly Smagin holds a multimillion dollar California judgment against petitioner Ashot Yegiazaryan, who lives in California. Smagin, who resides in Russia, filed suit in…
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Recent Articles

“RICO Is a Judge’s Nightmare” — “The Requisite RICO Pleading Standards Are Far From Explicit, And The RICO Jurisprudence Offers Courts (And Plaintiffs) Little Guidance” (Good Quotes) — Common Elements of § 1962(a), (c) and (d)-Based Claims — Closed-End Continuity: Duration > 1 Year = Substantial Period of Time — Continuity: Courts Skeptical If Number of Victims and Schemes Is Limited — Untargeted Persons Who Suffer Derivative Injury Do Not Add to the Number of Victims Considered for Continuity Purposes — Open Ended Continuity Can Be Established by Showing Defendant Commits Predicate Acts As “Regular Way of Doing Business” — Citing the Existence of Other Lawsuits Alleging Similar Predicates ≠ Pleading Facts Demonstrating Defendant’s Commission of Similar Predicates Against Others

Practice of Seeking Leave to Amend after The Case Is Dismissed Is Discouraged

RICO: Release Executed After Alleged RICO Violations Extinguishes RICO Claim — Eighth Circuit Declines to Address Enforceability of A Release “That Is An Integral Part of An Alleged RICO Scheme Or That Immunizes Future RICO Conduct

Pleading — “Civil pleadings are supposed to mark the boundaries for discovery; discovery is not supposed to substitute for definite pleading” (Good Quote) — Shotgun Pleadings (11th Circuit):  Four Categories/Types

Rule 37(c)(1) Exclusion of Untimely Expert Report: Failure to Argue Harmlessness Essentially Waives Issue

Rule 37(b) Sanctions — Exclusion of Supplemental Expert Report for Advancing New Opinions — Third Circuit Exclusion Factors — “Importance of Excluded Evidence:” If, As Proponent Argues, There Is Nothing New, Then Exclusion Doesn’t Harm Proponent; If There Is, It Harms Opponent

RICO Pleading: Generic Allegations of Fraud (Failing Even to Set Forth Any False Representation) And Extortion (Failing to Describe Actual Threats) Too Conclusory to State a Claim

RICO Standing: Antitrust’s Indirect Purchaser Rule Applies in RICO Cases, Barring Claims by Indirect Purchasers Two Or More Steps Removed From The Violator In A Distribution Chain (Here, Truck Purchasers/Lessees Suing Manufacturer), Though Court Considers Bar “Unsupported by Sensible Principles”

RICO Pleading: Statutory Directive That RICO Be Liberally Construed Does Not Extend to More Liberal Pleading Requirements

Inherent Power and FRAP 38 Sanctions — Inherent Power Sanctions (Here, A Deterrence Payment of $25,000 to the Court — Goodyear Issue Not Addressed) May Be Imposed in Addition to Statutory Attorney’s Fees under 35 U.S.C. § 285 (Exceptional Patent Case) — § 285 Does Not Preclude A Separate Award of Sanctions Or Fees under Another Authority — Recidivism (25 Prior Lawsuits with Same Perceived Venue Deficiency) A Factor — Fact That Rule 11 Sanctions Were Unavailable Due to Dismissal of Lawsuit Opened the Door to Inherent Power Sanctions Under Chambers — FRAP 38 Sanctions Denied Because Issue Previously Unaddressed in Circuit — A Meritless Appeal Is By No Means Necessarily A Frivolous One (Good Quote)

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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