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

Administrative Closure of A Case Is A Tool of Docket Management Outside the Federal Rule of Civil Procedure Used to Shelve A Pending But Dormant Matter —District Court Order Administratively Closing A Case Is Not An Appealable Final Order, But An Order Denying A Motion to Reopen Is — “A Case Is Deemed To Be Final When A District Court Disassociates Itself From A Case” (Good Quote) — Fed. R. Civ. P. 6(b)(1)(B) Does Not Confer Authority to Dismiss A Case; Other Power Must Be Invoked — Rule 41(b) Dismissal: Sixth Circuit Factors

Rodriguez v. Hirshberg Acceptance Corp., 2023 U.S. App. LEXIS 6006 (6th Cir. Mar. 14, 2023): District courts, it is broadly accepted, enjoy tremendous freedom in managing their caseload. That flexibility stems in part from the fact that no two district…
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§ 1927 Sanctions Available for Needlessly Prolonging Deposition Through Irrelevant Questions Even If Movant Did Not Move for A Protective Order under Rule 30 — No § 1927 Sanctions Imposable on Law Firms (Majority Rule – Circuit Split) — “Whether A Defendant Offers To Settle A Case Is Of Questionable Value In Determining Whether The Plaintiff’s Claims Are Frivolous” (Good Quote)

Vaughan v. Lewisville Indep. Sch. Dist., 2023 U.S. App. LEXIS 5684, 2023 WL 2423494 (5th Cir. Mar. 9, 2023): In this case, the district court awarded fees against Vaughan’s attorneys after finding that they unreasonably and vexatiously multiplied the…
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Spoliation of Tangible Evidence: Sixth Circuit Standards – Harsh Sanctions Typically Imposed Only for Culpability Greater Than Negligence – Sanction of Summary Judgment Properly Denied for Negligent Spoliation by Hospital’s Document Storage Company Years Before Plaintiff Ever Requested His Medical Records

Frank v. Good Samaritan Hosp., 2023 U.S. App. LEXIS 6265 (6th Cir. Mar. 15, 2023) (unpublished): Jahmir Frank sued Good Samaritan Hospital for medical malpractice. But because Good Samaritan’s contractor destroyed his medical records, Frank’s claim was arguably more difficult …
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Sanctions: Vexatious Litigant Injunctions in District Court (5th Circuit Standards) — Vexatious Litigant Injunctions in Court of Appeals: Inherent Power and Statutory (All Writs Act) Authority — FRAP 38 Monetary Sanctions: Frivolousness Need Not Be Intentional, Can Be Inadvertent — RICO: Plaintiff Cannot Plead Actual Reliance on Assertion He Knew at The Time Was False; Actual Reliance Unjustifiable as A Matter of Law; Common-Law Fraud Not A Predicate Act

Nix v. Major League Baseball, 2023 U.S. App. LEXIS 6319, 2023 WL 2534977 (5th Cir. Mar. 16, 2023): *1 This appeal involves the latest in a series of unsuccessful lawsuits2 by Neiman Nix, proceeding pro se, who sued…
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Supplemental vs. New Expert Report: If Report Asserts New Analysis Or Conclusions [Based on Information Available at Time of Original Report], It Is Not Supplemental within Rule 26(e)(2) — Rule 37(c)(1) and Rule 16(f) Exclusion: Four Factors (5th Circuit Test) — Sham Affidavit Doctrine Applies Only to Summary Judgment Affidavit That Contradicts Prior Deposition Testimony — Note: Court Fails to Address Rule 26(e)(1)(A) (Here, The New Opinion Was “Otherwise … Made Known to The Other Parties During The Discovery Process” Because It Was Inquired About At Deposition — See The Temptation to Depose Every Expert, 40 Litigation, No. 2 at 35 (Winter 2014)

Majestic Oil, Inc. v. Certain Underwriters at Lloyd’s, 2023 WL 2549892 (5th Cir. Mar. 17, 2023) (unpublished): PER CURIAM:* Majestic Oil, Inc. v. Certain Underwriters at Lloyd’s, 2023 WL 2549892 (5th Cir. Mar. 17, 2023) (unpublished): This is a…
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Recklessness Sufficient for § 1927 Sanctions in 9th Circuit (Circuit Split) — Mere Delay of 19 Days in Producing Prior Settlement Agreement Among the Parties “Unreasonably Lengthened the Proceedings” — Sound Dissent

Lozano v. Cabrera, 2023 U.S. App. LEXIS 5394 (9th Cir. Mar. 7, 2023) (2-1 decision; unpublished): MEMORANDUM* Plaintiff appeals the district court’s imposition of sanctions under Federal Rule of Civil Procedure 11 and 28 U.S.C. § 1927. Because…
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While Lower Court Must Execute Mandate of Higher Court – Including Questions Expressly Or Impliedly Decided – Invalidity of Prospective Waiver of Statutory Remedies for Public Policy Reasons It May Reopen a Seemingly Foreclosed Issue Based on New Evidence, A Dramatic Change in Law or a Blatant Error in the Prior Decision That Will Result in a Serious Injustice (Here, Previously Undetected Fraud on The Court Preceding Appeal) – “Affiliated Entity” May Refer to an Individual – Does Contractual Phrase “Tribal Law” Incorporate Federal Law? – District Court’s Credibility Determinations Deserve The Highest Degree of Appellate Deference

Williams v Martorello, 59 F.4th 68 (4th Cir. 2023): This class-action proceeding relates to a lending scheme allegedly designed to circumvent state usury laws. Matt Martorello appeals from three district court rulings that (1) reconsidered prior factual findings based…
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RICO § 1964(c): Where Federal and State Law Conflict, State Law Does Not Control in Determining Whether Plaintiff Suffered Injury to Business Or Property for RICO Purposes

Shulman v. Kaplan, 58 F.4th 404 (9th Cir. 2023) *407 The question presented in this case is whether Appellants, a cannabis entrepreneur and two cannabis businesses, have standing to bring claims arising pursuant to the Racketeer Influenced and Corrupt Organizations …
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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)

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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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