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

Complex Lit Blog

Rule 11 Sanctions — Fees Incurred Because of the Violation, Including Fees Incurred in Bringing the Sanctions Motion, Are Recoverable Even If They Are Covered by Insurance — Res Judicata vs Claim-Splitting (The Rule Against Duplicative Litigation): Unlike Res Judicata, Which Requires A Final Judgment, The Rule Against Duplicative Litigation Permits Dismissal of a Duplicative Action While the First Case Remains Pending — A Judicial Determination That A Proposed Amendment to A Complaint Would Be Futile Operates As A Ruling on The Merits

Kezhaya v. City of Belle Plaine, 2023 U.S. App. LEXIS 22431 (8th Cir. Aug. 25, 2023) * ...
Kezhaya v. City of Belle Plaine, 2023 U.S. App. LEXIS 22431 (8th Cir. Aug. 25, 2023) *1 Attorney Matthew Kezhaya appeals an order of the district court* sanctioning him and his co-counsel under Federal Rule of Civil Procedure 11…
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12(b)(6): To What Extent May A Court Consider An Expert Report Or Affidavit Annexed To A Complaint In Deciding A Dismissal Motion?

Alix v. McKinsey & Co., 2023 U.S. Dist. LEXIS 145872, at *82-83, 2023 WL 5344892, at *27 (SDNY Aug. 18, 2023): *** Finally, [Defendant] McKinsey contends that a joint declaration from three bankruptcy professionals that Alix appended to ...
Alix v. McKinsey & Co., 2023 U.S. Dist. LEXIS 145872, at *82-83, 2023 WL 5344892, at *27 (SDNY Aug. 18, 2023): *** Finally, [Defendant] McKinsey contends that a joint declaration from three bankruptcy professionals that Alix appended to the…
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FRAP 38 Sanctions: (1) Mistake — A Colorable But Erroneous Argument — Is Not Properly Sanctioned under FRAP 38 — (2) FRAP 38 Particularly Apt When Losing Party in Arbitration Is Using Frivolous Arguments to Delay Collection of Award

Kinsella v. Baker Hughes Oilfield Operations, LLC, 66 F.4th 1099 (7th Cir. 2023) Opinion [*1101] An arbitrator rejected Donald Kinsella's claim that his employer, Baker Hughes, violated the Americans with Di ...
Kinsella v. Baker Hughes Oilfield Operations, LLC, 66 F.4th 1099 (7th Cir. 2023) Opinion [*1101] An arbitrator rejected Donald Kinsella’s claim that his employer, Baker Hughes, violated the Americans with Disabilities Act by failing to accommodate him after he suffered…
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Sanctions in the Form of Penalty Not Dischargeable in Bankruptcy — Award of Sanctions Not Subject to Statute of Limitations Defense

O'Dwyer v. Carter, 2023 U.S. App. LEXIS 10840 (5th Cir. May 3, 2023) (unpublished) PER CURIAM:* *1 Former attorney Ashton O’Dwyer, proceeding pro se, appeals from the dismissal of a suit that he filed in the United States District Court for the Eastern District of Louisiana. He has been disbarred f ...
O’Dwyer v. Carter, 2023 U.S. App. LEXIS 10840 (5th Cir. May 3, 2023) (unpublished) PER CURIAM:* *1 Former attorney Ashton O’Dwyer, proceeding pro se, appeals from the dismissal of a suit that he filed in the United States District…
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Rule 37(c)(1) sanctions for failure to disclose pursuant to Rule 26(a) — (1) Party facing Rule 37(c)(1) Sanctions Bears Burden of Proving Her Violations Were Substantially Justified or Harmless — (2) Ninth Circuit’s 4-Factor Test for Determining Whether Violation Is Harmless — (3) Parties Not Excused from Making Rule 26(a) Disclosures Simply Because They Don’t Have All Evidence — Must Disclose and Later Supplement — (4) When Rule 37(c)(1) Sanction Will Be Dispositive, Court Must Consider (a) Willfulness, Fault, Bad Faith and (b) Availability of Lesser Sanctions (9th Cir. Requirements) — (5) Court Is Required to Consider Lesser Sanctions Under Rule 37(c)(1) Only If Asked to Do So

Gryglak v. HSBC Bank USA, N.A., 2023 U.S. App. LEXIS 10946 (9th Cir. May 4, 2023) (unpublished) < ...
Gryglak v. HSBC Bank USA, N.A., 2023 U.S. App. LEXIS 10946 (9th Cir. May 4, 2023) (unpublished) MEMORANDUM* *1 Edyta Gryglak (“Gryglak”) appeals the district court’s summary judgment in favor of HSBC Bank USA, N.A., as trustee for Wells…
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Trial: Unanticipated/Undisclosed Evidence — An Objection Need Not Be Perfectly Contemporaneous with the Challenged Evidence to Be Timely

Johnson v. C.R. Bard, Inc., 2023 U.S. App. LEXIS 20963 (7th Cir. Aug. 11, 2023)  
Johnson v. C.R. Bard, Inc., 2023 U.S. App. LEXIS 20963 (7th Cir. Aug. 11, 2023)  We appreciate the challenges that parties face when attempting to respond to unanticipated issues arising in the heat of trial. For this reason, we have …
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Inherent Power Sanctions: Finding of Willfulness ≠ Finding of Subjective Bad Faith — Due Process Requires Notice of Precise Rule, Standard or Law The Lawyer Allegedly Violated And How The Lawyer Allegedly Violated It

Baker v. 3M Co., 2023 U.S. App. LEXIS 13339 (11th Cir. May 31, 2023) (unpublished) *1< ...
Baker v. 3M Co., 2023 U.S. App. LEXIS 13339 (11th Cir. May 31, 2023) (unpublished) *1 This is an appeal from the district court’s order imposing monetary sanctions against attorneys Kimberly O. Branscome and Jay L. Bhimani. At the conclusion…
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Rule 41(b) Sanctions: Dismissals Without Prejudice Generally Cause Minimal Harm — Absent a Statute of Limitations Impediment to Refiling, Court of Appeals Therefore Applies a Less Stringent Standard of Review

Ubiquitous Connectivity, LP v. Txu Energy Retail Co. LLC, 2023 U.S. App. LEXIS 14377 (Fed. Cir. June 9, 2023) (unpublished) (applying 5th Circuit law) Per Curiam. Ubiquitous Connectivity, LP, sued TXU Energy Retail Co. LLC in the Nor ...
Ubiquitous Connectivity, LP v. Txu Energy Retail Co. LLC, 2023 U.S. App. LEXIS 14377 (Fed. Cir. June 9, 2023) (unpublished) (applying 5th Circuit law) Per Curiam. Ubiquitous Connectivity, LP, sued TXU Energy Retail Co. LLC in the Northern District of …
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Rule 16(f) and 37(b)(2)(A) Sanctions: Fifth Circuit Factors for Case-Ending Sanctions and for 37(b)(2) Sanctions Generally — Preclusion, Including Exclusion of Experts, Is Not as Drastic as Dismissal or Default — The Fact that Exclusion May Have the Legal Consequence of Dismissal (Or Any Other Consequence) Does Not Affect the Appropriateness of the Sanction

Williams v. Am. Honda Motor Co., Inc., 2023 U.S. App. LEXIS 13420 (5th Cir. May 31, 2023) (unpublished) PER CURIAM:* *   This opinion is not designat ...
Williams v. Am. Honda Motor Co., Inc., 2023 U.S. App. LEXIS 13420 (5th Cir. May 31, 2023) (unpublished) PER CURIAM:* *   This opinion is not designated for publication. See 5TH CIR. R. 47.5. *1 Following a car accident,…
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Rule 37(c)(1) Requires Exclusion of Undisclosed, Or Untimely Disclosed, Evidence — Here, Expert Report — Unless The Target of Sanctions Moves The Court to Consider Lesser Sanctions

Cantrell v. Coloplast Corp., 2023 U.S. App. LEXIS 20785 (8th Cir. Aug. 10, 2023): Opinion *1 Coloplast Corporation and Coloplast Manufacturing US, LLC (collectively, Coloplast) manufacture and market Restorelle L, a
Cantrell v. Coloplast Corp., 2023 U.S. App. LEXIS 20785 (8th Cir. Aug. 10, 2023): Opinion *1 Coloplast Corporation and Coloplast Manufacturing US, LLC (collectively, Coloplast) manufacture and market Restorelle L, a surgical mesh device. Angela Cantrell sued Coloplast for injuries…
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Recent Posts

FRAP 38 Sanctions: An Appeal May Not Be “Wholly Without Merit” — And Therefore May Not Be Sanctionable — Even If Several of Appellant’s Arguments Are Frivolous; Soundness of Central Arguments May Dominate

Standing: An “Identifiable Trifle” Suffices — PSLRA/Rule 11: District Court Must Make Findings As to Compliance with Rule 11 Whether or Not Asked — Filing Securities Lawsuit to Obtain Immaterial Disclosures Presumptively Violative of Rule 11

FRAP 38 Sanctions for Frivolous Claims of Judicial Bias, Citing Non-Existent Cases/Sources, Inventing Quotes from Real Ones, And Exhibiting Inflammatory and Antagonistic Tone — Recusal: “Adverse Rulings Are Not Evidence of Bias” (Good Quote) — Critical Judicial Remarks Ordinarily Do Not Support A Claim of Bias — Circuit-Wide Filing Bar Until $5,000 Fine Paid

Court’s Inherent Power to Police the Conduct of Litigants and Attorneys Extends to Persons Engaged in the Unauthorized Practice of Law Before Them

(1) Inherent Power Sanctions — Duty to Correct or Withdraw — Strategic Silence As Bad Faith — Failure to Advise Court of Absence of Diversity Jurisdiction for 15 Months for Strategic Reasons, Only “Pull[ing] Out The Diversity-Destroying Card” After Losing = “A Textbook Example of Bad Faith” — (2) Under Goodyear, The Court’s Fundamental Job Is to Decide Whether Fees Would Have Been Incurred Absent the Sanctioned Conduct — (3) Appellate Review: While Sanctions Orders Are Reviewed for Abuse of Discretion, A Finding of Bad Faith Is Reviewed for Clear Error — (4) When There Are Two Permissible Views of The Evidence, The Factfinder’s Choice Between Them Cannot Be Clearly Erroneous — (5) “A District Court Is Not Required To Consider Irrelevant Evidence” — (Good Quotes)

Criminal Spoliation Can Be A Due Process Violation — Defendant Must Show That (1) The Evidence Had Exculpatory Value Before It Was Destroyed, (2) Defendant Is Unable to Obtain Comparable Evidence by Reasonable Means, and (3) Bad Faith Failure to Preserve

1) Rule 11 Sanctions: “No First Amendment Exception to a Rule 11 Violation” — “[T]he First Amendment Covers Novel, Nonfrivolous Arguments, But Many Frivolous Arguments Are Also Novel” (Good Quotes) — Frivolous To Continue To Make Rejected Novel Arguments; (2) FRAP 38 Sanctions: District Court In Best Position to Set Sanctions, Attorney’s Fees and Costs

3 Prerequisites for Inherent Power and § 1927 Sanctions in Second Circuit: (1) Bad Faith, (2) Conduct That Is Entirely Without Color [Thus, An Ill-Motivated Colorable Position Appears to Be Protected in the Second Circuit], and (3) Improper Purpose— “To Gain A Strategic Advantage” Is An Improper Purpose — Due Process Satisfied by Opponent’s Motion and Multiple Court Conferences, After Which Target Was Allowed to Submit Additional Letters

Inherent Power Sanctions — Untimeliness as Laches — Laches Properly Applied to Deny Sanctions Motion — Note Waived Defenses to Laches

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

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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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