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

Contractual Jury Waivers — Effectiveness — Factors; Federal vs. State Standard — Who Bears Burden of Proving Waiver Was Knowing and Voluntary? — Circuit Split

Contractual Jury Waivers — Effectiveness — Factors — Who Bears Burden of Proving Waiver Was Knowing and Voluntary? — Circuit Split Smith v. Bank of Haw., 2018 U.S. Dist. LEXIS 37648 (D. Haw. Mar. 7 ...
Contractual Jury Waivers — Effectiveness — Factors — Who Bears Burden of Proving Waiver Was Knowing and Voluntary? — Circuit Split Smith v. Bank of Haw., 2018 U.S. Dist. LEXIS 37648 (D. Haw. Mar. 7, 2018): B. Motion to …
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Judicial Notice of Briefs/Filings in Different Court OK, But Not for Truth — No §1927 Sanctions for Conduct in Another Court — Disqualification: Standing Requires Prior Attorney-Client Relationship Or Breach That “Infects the Litigation”

Smith v. Cook, 2018 U.S. Dist. LEXIS 37615 (S.D. Cal. Mar. 7, 2018): ORDER: (1) DENYING PLAINTIFF'S MOTION FOR WITHDRAWAL OF DEFENDANT'S ATTORNEYS; AND (2) DEN ...
Smith v. Cook, 2018 U.S. Dist. LEXIS 37615 (S.D. Cal. Mar. 7, 2018): ORDER: (1) DENYING PLAINTIFF'S MOTION FOR WITHDRAWAL OF DEFENDANT'S ATTORNEYS; AND (2) DENYING PLAINTIFF'S MOTION FOR SANCTIONS (Doc. Nos. 22, 32) Pending before the Court…
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The Exceptional-Case Standard for Awarding Attorney’s Fees under the Lanham Act (15 U.S.C. §1117(a)) Is Identical to the Exceptional-Case Standard Applied in Patent Cases (under 35 U.S.C. §285) — 11th Circuit Joins 3d, 4th, 5th, 9th & Fed Circuits

Tobinick v. Novella, 2018 U.S. App. LEXIS 5845 (11th Cir. Mar. 8, 2018): Dr. Edward Tobinick appeals the District Court's award of attorney's fees to Dr. Steven Novella. Dr. Tobinick a ...
Tobinick v. Novella, 2018 U.S. App. LEXIS 5845 (11th Cir. Mar. 8, 2018): Dr. Edward Tobinick appeals the District Court's award of attorney's fees to Dr. Steven Novella. Dr. Tobinick argues both that the District Court's decision to award…
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Pleading RICO: “Conclusory Allegations, Unwarranted Factual Inferences, and Legal Conclusions” Insufficient — Appeals: Issues Waived by Making No More Than “Conclusional Assertions” That Complaint Is Adequate (Good Quotes)

Van Velzer v. Amegy Bank, 2018 WL 1135060 (5th Cir. Mar. 1, 2018): PER CURIAM:* David Van Velzer appeals the dismissal of his civil action by the district court for failure to state a claim under
Van Velzer v. Amegy Bank, 2018 WL 1135060 (5th Cir. Mar. 1, 2018): PER CURIAM:* David Van Velzer appeals the dismissal of his civil action by the district court for failure to state a claim under Federal Rule of Civil …
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YouTube Video Inadmissible on Motion to Dismiss Absent 902(11) Certification from Custodian of Records or Alternate Theory of Prima Facie Authenticity

Ratner v. Kohler, 2018 U.S. Dist. LEXIS 30761 (D. Hawaii Feb. 26, 2018): ORDER DENYING DEFENDANT MELANIE KOHLER'S MOTION TO DISMISS THE COMPLAINT FILED NOVEMBER 1, 2017 and HOLDING IN ABEYANCE DEFENDANT MELANIE KOHLER'S SPECIAL MOTION TO STRIKE THE COMPLAINT FILED NOVEMBER 1, 2017 (ECF No. 26) On or abo ...
Ratner v. Kohler, 2018 U.S. Dist. LEXIS 30761 (D. Hawaii Feb. 26, 2018): ORDER DENYING DEFENDANT MELANIE KOHLER'S MOTION TO DISMISS THE COMPLAINT FILED NOVEMBER 1, 2017 and HOLDING IN ABEYANCE DEFENDANT MELANIE KOHLER'S SPECIAL MOTION TO STRIKE THE COMPLAINT …
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RICO: Litigation Activity as Predicate Generally Fails (Exc’ns), Always If Single Baseless Lawsuit — Case Based on Single District Court Precedent Not Frivolous — §1927 Sanctions Available against Lawyer Proceeding Pro Se — Ethics: Advocate-Wit Rul

Kim v. Kimm, 2018 WL 1054751 (2d Cir. Feb. 27, 2018): *1 The plaintiff Daniel Kim brings this action pursuant to the Racketeer Influenced and Corrupt Organizations Act (“RICO”),
Kim v. Kimm, 2018 WL 1054751 (2d Cir. Feb. 27, 2018): *1 The plaintiff Daniel Kim brings this action pursuant to the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961, et seq., alleging that the defendants engaged…
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Rule 11 Sanctions — Email Doesn’t Satisfy Safe Harbor — Failure to File Bill of Costs Timely under Local Rule Requires Reversal of That Award, Too

Askins v. Hagopian, 2018 WL 1136029 (5th Cir. Mar. 1, 2018): Daniel Askins filed this lawsuit against Jeffrey Hagopian in the United States District Court for the Southern District of Texas on May 13, 2016, claiming Hagopian made defamatory statements about him and tortiously interfered with his contract with Noble Drilling LLC.
Askins v. Hagopian, 2018 WL 1136029 (5th Cir. Mar. 1, 2018): Daniel Askins filed this lawsuit against Jeffrey Hagopian in the United States District Court for the Southern District of Texas on May 13, 2016, claiming Hagopian made defamatory statements…
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Diversity Jurisdiction: National Bank Is “Located” (28 U.S.C. §1348) in the State Designated in Its Articles of Ass’n As Its Main Office — LLC Has Citizenship of All of Its Members

TD Bank, N.A. v. Bapa, 2018 U.S. Dist. LEXIS 7067 (M.D.N.C. Jan. 17, 2018): ***In this case, the Complaint fails to specify the jurisdictional basis upon which it rests. (See Docket Entry 1, ¶ 6 (stating only that "[t]his Court has jurisdiction over the parties to this action and the subject matter of the claims set forth ...
TD Bank, N.A. v. Bapa, 2018 U.S. Dist. LEXIS 7067 (M.D.N.C. Jan. 17, 2018): ***In this case, the Complaint fails to specify the jurisdictional basis upon which it rests. (See Docket Entry 1, ¶ 6 (stating only that "[t]his…
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Contempt Sanction: Reading Only PACER Entry & Not Order = Bad Faith — Magistrate Judge Lacks Power to Adjudicate Contempt — Summary Adjudication OK for Violation in Court’s Presence (Failure to Have Client Present, As Ordered) — $2,500 Penalty

Deutsch v. Annis Enters., 2018 U.S. App. LEXIS 3028 (5th Cir. Feb. 8, 2018): PER CURIAM: This is a companion case to
Deutsch v. Annis Enters., 2018 U.S. App. LEXIS 3028 (5th Cir. Feb. 8, 2018): PER CURIAM: This is a companion case to Deutsch v. Travis County Shoe Hospital, Inc., No. 16-51431, 2018 U.S. App. LEXIS 2647 (5th Cir. …
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Attorney-Client Privilege: Simply Filing Suit to Which Privileged Info Is Relevant Doesn’t Effect Waiver — Mere Relevance Is Never Enough — Excellent Collection of Waiver Cases with Factual and Legal Analysis — Hearn Overruled by Swidler

In re Iltron, Inc., 2018 U.S. App. LEXIS 4136 (5th Cir. Feb. 21, 2018): This mandamus petition calls on us to correct a significant misapplication of attorney-client privilege law. The underlying lawsuit springs from a disputed corporate merger. Plaintiff-Petitioner Itron acquired a company called SmartSynch. According to Itro ...
In re Iltron, Inc., 2018 U.S. App. LEXIS 4136 (5th Cir. Feb. 21, 2018): This mandamus petition calls on us to correct a significant misapplication of attorney-client privilege law. The underlying lawsuit springs from a disputed corporate merger. Plaintiff-Petitioner Itron …
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Recent Posts

Electronic Spoliation/Rule 37(e): (1) Finding of Recklessness But Neither Gross Negligence Nor Willfulness in Loss of Video Evidence Precludes Rule 37(e)(2)’s Severest Sanctions Because (i) No Intent to Deprive and (ii) Rule 37(e)(2) Displaces District Court’s Power to Invoke Inherent Power to Impose Those Sanctions — (2) Appellate Review = Abuse of Discretion, With The Caveat That Whether The District Court Applied The Correct Legal Standards Is Reviewed De Novo — (3) Inherent Power Is Often Available As An Alternate Source of Sanctioning Power But Can Be Limited by Rule or Statute, Something Which Courts Do Not Lightly Presume — (4) The Text of Rule 37(e)(2), As Confirmed by the Advisory Committee Note, Displaces Inherent Power to Impose the Sanctions Specified in the Rule or Any More Severe Sanctions — (5) “Intent to Deprive” in Rule 37(e)(2) = “The Willful Destruction Of Evidence With The Purpose Of Avoiding Its Discovery By An Adverse Party” — (6) Appellate Standing Conferred by Virtue of Issuance of Sanctions Regardless of Merits Outcome — (7) Value of Advisory Committee Notes in Interpreting Rules Enacted without Change Despite General Reticence to Rely on Legislative History

RICO: (1) Plaintiff Need Not Suffer Injury from Each Predicate Act to Establish Standing, And The Pattern May Include Predicates As to Which No Plaintiff Has Standing — (2) 7 Elements of a Civil RICO Claim (2d Circuit Articulation) Which Must Be Established As to Each Defendant — (3) Requirements of an Association-in-Fact Enterprise — (4) Each Defendant Must Personally Commit 2 or More Predicate Acts — (5) Pattern of Racketeering Activity: Horizontal and Vertical Elements — (6) No Requirement That All Members of a RICO Enterprise Joined at Inception — Can Join Over Time/Others Can Quit — (7) Cannot Charge 2 Predicate Acts Where One Action Violates Two Statutes — (8) A Footnote to Consider for Briefs: “Unless Otherwise Noted, When Quoting Judicial Decisions This Order Accepts All Alterations And Omits All Citations, Footnotes, And Internal Quotation Marks.”

For An Appeal to Be Timely, A Motion for Reconsideration in The District Court (A Rule 59(e) Motion) Must Be Filed, And Not Just Served within 30 Days of The Decision, to Toll The 30-Day Period for Filing An Appeal

There Is No Good-Faith Defense For Issuing An Overly Burdensome Subpoena

Purposes of Rule 37 and Section 1927 Sanctions

While Rule 11 Doesn’t Apply to Appellate Proceedings (Unless It Has Been Incorporated in Local Appellate Rules), Rule 11 Caselaw Is Looked to for Guidance in Interpreting Applicable Sanctions Powers on Appeal

Rule 11 Sanctions & Appellate Review: Abuse of Discretion Standard Applies Unless Sanctions Are Based Solely (Not Just in Part) on Legal Issues, in Which Case Review Is De Novo

Rule 37(b)(2)(A) Sanctions for Altering Expert’s 26(a)(2)(B) Report — Without the Expert’s Knowledge or Approval — by Converting It from PDF to Word, Changing Headings and Other Formatting, and Omitting a Page of Relevant Text and Appendices, Even Though Expert Testified That The Overall Substance of the Report Was Unchanged — Rule 37(b)(2)(A) Sanctions May Be Reversed If Failure to Comply with Discovery Order Was Due to Misunderstanding or Inability to Comply

Spoliation: Fed. R. Civ. P. 37(e) Imposes a Higher Standard — Intent — Than Fourth Circuit Law Previously Applied to Spoliation of Electronically-Stored Information (And Still Does As to Non-ESI) — Willfulness vs. Intent

Inherent Power and § 1927 Sanctions: Removal of counsel from case, referral for disciplinary action, and award of fees and costs for assaulting opposing counsel at deposition — Failure to request hearing waive any right to a hearing — Notice and opportunity to be heard required before sua sponte sanctions imposed, whether under Rule 11, the inherent power of the court or § 1927 — Notice may come from court or opposing counsel — Order imposing sanctions cannot provide notice of sanctions — Nature of bad faith requirement for inherent power sanctions: bad faith to obstruct the judicial process or bring about violation of a court order — Sanctions proceeding need not defer (Younger abstention) to disciplinary proceeding involving the same conduct — Sanctions proceeding doesn’t threaten to interfere with disciplinary proceeding — Why District Court is accorded significant deference in matters concerning attorney’s fees

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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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