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: Assertions of Fact “Not Entirely Inaccurate” Don’t Show “Deliberate Indifference to Obvious Facts” and Aren’t Sanctionable

Benedek v. Adams, 2018 WL 823983 (11th Cir. Feb. 12, 2018):  *1 Dezso and Ann Benedek (collectively, “the Benedeks”) appeal the district court’s denial of
Benedek v. Adams, 2018 WL 823983 (11th Cir. Feb. 12, 2018):  *1 Dezso and Ann Benedek (collectively, “the Benedeks”) appeal the district court’s denial of Fed. R. Civ. P. 11 sanctions against the defendants and the court’s Fed. R. Civ. …
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Rule 11—Where Detailed SJ Opinion Puts Plaintiff on Notice of Legal Deficiency of Claim, Fact Leave to Appeal Granted Doesn’t Preclude Sanctions for Filing Amended Complaint without Addressing Deficiency — FRAP 38 Sanctions for Same on Appeal

Debeikes v. Hawaiian Airlines, Inc., 2018 WL 991377 (9th Cir. Feb. 21, 2018): MEMORANDUM** *1 Matthew J. Debeikes appeals from the district court’s grant of summary judgment and challenges its denial of his request to reopen discovery. He also, along wit ...
Debeikes v. Hawaiian Airlines, Inc., 2018 WL 991377 (9th Cir. Feb. 21, 2018): MEMORANDUM** *1 Matthew J. Debeikes appeals from the district court’s grant of summary judgment and challenges its denial of his request to reopen discovery. He also,…
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RICO: Pari Delicto Defense—Factors—Bars Claim by Plaintiffs Who Participated in Scheme to Prescribe Them Opioids Illegally— Analogous Wrongful Conduct Doctrine (N.M.) Bars State Law Claims

Inge v. McClelland, 2018 WL 985740 (10th Cir. Feb. 20, 2018): *1 Elizabeth and Johnny Inge appeal the district court’s dismissal of their claims against Robert McClelland, III, a pharmacist licensed in New Mexico who dispensed opioids and other narcotics to them for over a year. Exercising jurisdiction under
Inge v. McClelland, 2018 WL 985740 (10th Cir. Feb. 20, 2018): *1 Elizabeth and Johnny Inge appeal the district court’s dismissal of their claims against Robert McClelland, III, a pharmacist licensed in New Mexico who dispensed opioids and other narcotics…
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Texts Authenticated by Fact Phone Was on Def or in Car He Was in, Incoming Texts Use His Name, Outgoing Gives His Home Phone, Car Had Drugs & Texts Mentioned Drugs — Offer to Buy Not Hearsay — Photos Auth’d by Contents, Phone Calls by Whom You Called

Texts Authenticated by Fact Phone Was Found on Def or in Car He Was in, Incoming Texts Addressed to Him, Outgoing Text Gave His Home Phone, Car Had Drugs & Texts Mentioned Drugs — Authentication of Photos by Contents, Phone Calls by Whom You Called State v. Davenport, 2017 Ariz. App. Unpub. LEXIS 1962 (Ariz. Ct. App. Dec. 20, 20 ...
Texts Authenticated by Fact Phone Was Found on Def or in Car He Was in, Incoming Texts Addressed to Him, Outgoing Text Gave His Home Phone, Car Had Drugs & Texts Mentioned Drugs — Authentication of Photos by Contents, Phone …
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Rule 37 Sanctions: Where “Discovery … Was Protracted, Contentious, and Difficult” (Good Quote) But Party Ultimately Received What It Sought, No Abuse of Discretion to Deny Sanctions

Securiforce Int’l Am., LLC v. United States, 2018 U.S. App. LEXIS 1073 (Fed. Cir. Jan. 17, 2018): Securiforce International America, LLC ("Securiforce"), a government contractor, filed suit in the Court of Federal Claims ("Claims Court") under the Tucker Act, 28 U.S.C. § 1491, and the Contract Disputes ...
Securiforce Int’l Am., LLC v. United States, 2018 U.S. App. LEXIS 1073 (Fed. Cir. Jan. 17, 2018): Securiforce International America, LLC ("Securiforce"), a government contractor, filed suit in the Court of Federal Claims ("Claims Court") under the Tucker Act, 28…
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RICO — Each Check Deposited in a Kiting Scheme Is a Separate Fraud — Kiting Scheme Is Related to Underlying Fraud It Is Used to Disguise — SJ Must Be Warranted on Facts Even If Default — No Response to Statement of Undisputed Facts Admits It

Liberty Bell Bank v. Rogers, 2018 WL 834197 (3d Cir. Feb. 13, 2018): OPINION* PER CURIAM *1 Appellant Luis G. Rogers appeals from the District Court’s orders granting Appellee Liberty Bell Bank’s motion for summary judgment and awarding more than ten million dollars in damages. For the fol ...
Liberty Bell Bank v. Rogers, 2018 WL 834197 (3d Cir. Feb. 13, 2018): OPINION* PER CURIAM *1 Appellant Luis G. Rogers appeals from the District Court’s orders granting Appellee Liberty Bell Bank’s motion for summary judgment and awarding more than…
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Facebook Messages Authenticated by Unique Speaking Style, Content, Context (Series of Messages), Fact Messages Started Only After Recipient Agreed to Join Sender’s Plan to Lie to Police — Fact Someone Else Could Have Sent Them Is for Jury

State v. Smith, 2018 Conn. App. LEXIS 70 (Conn. Ct. App. Feb. 20, 2018): In these consolidated appeals, the defendant, Brian J. Smith, appeals from the judgments of conviction, rendered following a jury trial, of operating [*7]  a motor vehicle while under the influence of intoxicating liquor or any drug in violati ...
State v. Smith, 2018 Conn. App. LEXIS 70 (Conn. Ct. App. Feb. 20, 2018): In these consolidated appeals, the defendant, Brian J. Smith, appeals from the judgments of conviction, rendered following a jury trial, of operating [*7]  a motor vehicle …
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Rule 41(d) Costs (Awardable If Plaintiff Who Voluntarily Dismissed Refiles) Only Include Attorney’s Fees If the Underlying Statute Forming the Basis of the Suit Authorizes Them — 3 Way Circuit Split — Argument in Footnote Not Preserved for Appeal

Garza v. Citigroup Inc., 2018 WL 671133 (3d Cir. Feb. 2, 2018): *1 Under
Garza v. Citigroup Inc., 2018 WL 671133 (3d Cir. Feb. 2, 2018): *1 Under Federal Rule of Civil Procedure 41(d), a district court may order a plaintiff who voluntarily dismisses an action and files a second action against the …
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Rule 11 Sanctions — Vexatious Litigant Injunction Barring New Suit Against Defendants Until Sanction Paid — Due Process Satisfied by Order to Show Cause and Opportunity to Be Heard — Hearing Not Required — Meaning of Abuse of Discretion (6th Cir.)

Abe v. Mich. St. Univ. Bd. of Trustees, 2018 U.S. App. LEXIS 128 (6th Cir. Jan. 3, 2018): ORDER Babashola Abe, a Michigan resident proceeding pro se, appeals the district court's judgment dismissing his civil complaint, purportedly filed pursuant to
Abe v. Mich. St. Univ. Bd. of Trustees, 2018 U.S. App. LEXIS 128 (6th Cir. Jan. 3, 2018): ORDER Babashola Abe, a Michigan resident proceeding pro se, appeals the district court's judgment dismissing his civil complaint, purportedly filed pursuant to…
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Dismissal Without Prejudice Appealable If Plaintiff Effectively Out of Fed Court — 41(b) Dismissal Factors (10th Cir.) Not Apt If W/o Prejudice — Informal Minute Order Supports 41(b) Dismissal for Non-Compliance—Limits on Solicitude for Pro Ses

Black v. Larimer Cty., 2018 U.S. App. LEXIS 90 (10th Cir. Jan. 3, 2018): ORDER AND JUDGMENT* On April 17, 2014, Larimer County, Colorado (the County) hired Melissa Black to perform seasonal work as a restroom custodian in its parks department. She alleges ...
Black v. Larimer Cty., 2018 U.S. App. LEXIS 90 (10th Cir. Jan. 3, 2018): ORDER AND JUDGMENT* On April 17, 2014, Larimer County, Colorado (the County) hired Melissa Black to perform seasonal work as a restroom custodian in its…
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Recent Posts

RICO: Fraudulent Concealment Must Prevent Discovery of the Injury to Toll Statute of Limitations

Rule 37 Default Judgment Sanction: (1) Abuse of Discretion Review = Legal Conclusions De Novo. Factual Findings for Clear Error — (2) Client May Be Sanctioned for Misconduct of Its Counsel, Though Here Client Was Directly Involved in Bad Faith Misbehavior — (3) Is There A Difference, Under Rule 11 As Opposed to Rule 37, Concerning Whether A Client Can Be Sanctioned for Its Counsel’s Misconduct? — (4) While Sanctions of Last Resort (Dismissal/Default) Are Apt Only If Lesser Sanctions Wouldn’t Ensure Compliance, Rule 37 Doesn’t Require the Vain Gesture of First Imposing Lessert Sanctions When It Is Clear They Would be Ineffective — (5) Court’s Reconsideration of Non-Final Orders Is Governed by Rule 54(b), And Court’s Discretion under That Rule Is Governed by the Law-of-the-Case-Doctrine

RICO: (1) Special Pleading Requirements? — (2) Although Enterprise Must Be More Than a Summation of the Predicate Acts, The Predicate Acts Can Demonstrate the Existence of the Enterprise — (3) Requirement That Association-in-Fact Exist For Purposes Other Than Just to Commit Predicate Acts Merely Requires Continuity — (4) To State an Association-in-Fact Enterprise Consisting of One Natural Person and Collection of Legal Fictions Requires Factual Detail As to How They Acted Together — (5) “A § 1962(c) Enterprise Must Be More Than An Association of Individuals Or Entities Conducting the Normal Affairs of a Defendant Corporation” (Good Quote)

RICO: (1) Fee Award May Exceed Amount Recovered — Strict Proportionality Not Required — (2) Nonmonetary Benefits and Injunctive Relief Recovered Also Relevant Factors — (3) Loss on Some Claims Need Not Result in Lowered Fees, Especially When Both Arise Out of The Same Nucleus of Operative Facts

RICO: Indirect Purchasers (Car Buyers/Renters) Lack Standing to Sue Manufacturers for RICO Violations Even Though Intermediaries (Auto Dealer Direct Purchasers) Lack Any Damages

RICO: Statutory Requirement that RICO Be Liberally Construed Does Not Establish a More Liberal Pleading Standard for RICO Claims — “To Be Sure, Adequately Pleading a RICO Claim Can Be Challenging” (Good Quote) — Court May Dismiss Action Pursuant to Rule 41(b) Absent A Motion

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

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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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