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

Ruling on Merits Not Prerequisite to Award of § 1927 Sanctions — Presence of Some Reasonable Allegations Doesn’t Excuse Meritless Claims — 12(b)(6) Dismissal Is a Ruling on the Merits

Lefande v. Mische-Hoeges, 2018 U.S. App. LEXIS 2751 (D.C. Cir. Feb. 1, 2018): These consolidated appeals were considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties. See Fed. R. App. P. 34(a)(2);
Lefande v. Mische-Hoeges, 2018 U.S. App. LEXIS 2751 (D.C. Cir. Feb. 1, 2018): These consolidated appeals were considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties.…
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Spoliation: Failure to Preserve All Video Evidence Requested in Overly Broad Request ≠ Bad Faith — Does 37(e) Trump Flurry Factors? — Lit. Funding Firm’s Deal with Doctors Not Barred by Collateral Source Rule

ML Healthcare Servs., LLC v. Publix Super Mkts., Inc., 2018 U.S. App. LEXIS 2935 (11th Cir. Feb. 7, 2018): This is a personal injury case arising from plaintiff Robin Houston's slip and fall at a Publix Supermarket operated by Defendant. Following an eight-day trial, the jury returned a verdict in favor of Defendant. Plai ...
ML Healthcare Servs., LLC v. Publix Super Mkts., Inc., 2018 U.S. App. LEXIS 2935 (11th Cir. Feb. 7, 2018): This is a personal injury case arising from plaintiff Robin Houston's slip and fall at a Publix Supermarket operated by Defendant.…
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Circumstantial Text Authentication: Texts on Phone in Def’s Possession; He Admitted to Phone No. Only 1 Digit Off No. of Phone; Email Address Tied to Phone = His Surname + Birthday; Incoming Text Uses His First Name; Phone Used to Send a Selfie of Him

State v. Brownlee, 2017 Wisc. App. LEXIS 949 (Wis. Ct. App. Nov. 21, 2017): Willie Brownlee Jr. appeals from a judgment of conviction, entered upon a jury's verdict, for one count of possession of cocaine, fifteen to forty grams, with intent to deliver, contrary to
State v. Brownlee, 2017 Wisc. App. LEXIS 949 (Wis. Ct. App. Nov. 21, 2017): Willie Brownlee Jr. appeals from a judgment of conviction, entered upon a jury's verdict, for one count of possession of cocaine, fifteen to forty grams, with …
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Rule 37(c)(1) Sanctions — Summary Judgment Declarations from Witnesses Not Disclosed Per 26(a)(1) Properly Stricken — Mentioning Them in Interrogatory Answers Insufficient

Benjamin v. B & H Education, Inc., 2017 WL 6460087 (9th Cir. Dec. 19, 2017): Plaintiffs are students of cosmetology and hair design at schools in California and Nevada operated by defendant B&H Education, Inc., under the name of Marinello Schools of Beauty. Plaintiffs claim that they are employees within the meaning of the Fair Labor ...
Benjamin v. B & H Education, Inc., 2017 WL 6460087 (9th Cir. Dec. 19, 2017): Plaintiffs are students of cosmetology and hair design at schools in California and Nevada operated by defendant B&H Education, Inc., under the name of Marinello…
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Rule 16(f) & Inherent Power Sanctions for Failure to Participate in Settlement Conference in Good Faith — Failure to Communicate in Advance a Fixed Position (Here, No Interest in Negotiating) Sanctionable — Led to Conference Being Held for No Reason

Arneault v. O’Toole, 2017 WL 5989024 (3d Cir. Dec. 4, 2017): *1 This appeal, set against a backdrop of the litigants’ personal and professional rancor, pertains to two awards of attorneys’ fees and costs to the appellees. Plaintiffs Edson R. Arneault and Gregory J. Rubino brought several claims against defendant ...
Arneault v. O’Toole, 2017 WL 5989024 (3d Cir. Dec. 4, 2017): *1 This appeal, set against a backdrop of the litigants’ personal and professional rancor, pertains to two awards of attorneys’ fees and costs to the appellees. Plaintiffs Edson R.…
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Sanctions: “Without a Finding of Fraud or Bad Faith Whereby the Very Temple of Justice Has Been Defiled, a Court Enjoys No Discretion to Employ Inherent Powers to Impose Sanctions” (Good Quote)

Level 3 Commc’ns, LLC v. United States, 2018 U.S. App. LEXIS 2536 (Fed. Cir. Jan. 30, 2018): Defendant the United States ("the government") and Department of Justice attorney Robert C. Bigler appeal the March 16, 2017 order of the United States Court of Federal Claims. In that order, the court, rel ...
Level 3 Commc’ns, LLC v. United States, 2018 U.S. App. LEXIS 2536 (Fed. Cir. Jan. 30, 2018): Defendant the United States ("the government") and Department of Justice attorney Robert C. Bigler appeal the March 16, 2017 order of the United…
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Dismissal Is Proportional Sanction under Rule 37 for Willful, Repeated Discovery Violations & under Rule 41 for Disregard of Court-Imposed (Discovery) Deadlines — While Judges Should Weigh Lesser Sanctions, They Aren’t Required to (7th Cir.)

Nelson v. Rodgers, 2017 U.S. App. LEXIS 26120 (7th Cir. Dec. 21, 2017): Per Curiam. Kenneth Nelson sued two former business partners, Bruce Schultz and Jon Rodgers, for breach of contract and several torts. During discovery Schultz and Rodgers asked Nelson to produce various bank statements and tax returns, which, the defendant ...
Nelson v. Rodgers, 2017 U.S. App. LEXIS 26120 (7th Cir. Dec. 21, 2017): Per Curiam. Kenneth Nelson sued two former business partners, Bruce Schultz and Jon Rodgers, for breach of contract and several torts. During discovery Schultz and Rodgers asked…
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Emails Authenticated by Domain Names (Parties’), Identities of Purported Senders, Relevance of Time Period and Contents — Admissible as Admissions or Business Records

Progressive Waste Solutions of La., Inc., 2017 U.S. Dist. LEXIS 208192, 2017 WL 6501597 (E.D. La. Dec. 19, 2017): Before the Court is Defendant's motion to strike. R. Doc. 32. Plaintiff has filed a response in opposition. R. Doc. 33. After reviewing the parties' briefs and the applicable law, the Court now issues this Order & ...
Progressive Waste Solutions of La., Inc., 2017 U.S. Dist. LEXIS 208192, 2017 WL 6501597 (E.D. La. Dec. 19, 2017): Before the Court is Defendant's motion to strike. R. Doc. 32. Plaintiff has filed a response in opposition. R. Doc. 33.…
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Rule 37(d) Sanctions — No Excuse for Failing to Attend Dep That Adversary Owed Discovery or That Opposing Lawyer Didn’t Show Up after Learning Party Wouldn’t Attend — While Court Construes Pro Se Briefs Liberally, It Won’t Act as De Facto Counsel

Lewis v. Leonard, 2017 WL 5664663 (11th Cir. Nov. 27, 2017): *1 In this
Lewis v. Leonard, 2017 WL 5664663 (11th Cir. Nov. 27, 2017): *1 In this 42 U.S.C. § 1983 action, plaintiff Preston Jermain Lewis, a former student at Pensacola State College (“PSC”), appeals pro se the district court’s order granting summary…
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CAFA: Resident Not Same as a Citizen for Local Controversy Purposes — Plaintiffs Must Present Evidence of Citizenship or Define Class As Limited to Citizens of Relevant State — Complaint Determines Whether Local Def Is Significant

White Knight Diner, LLC v. Arbitration Forums, Inc., 2018 U.S. Dist. LEXIS 5786 (E.D. Mo. Jan. 12, 2018): This putative class action is brought on behalf of various Missouri insureds, for damages incurred as a result of the alleged misconduct of their respective insurance companies, and the insurance companies for unnamed third-party ...
White Knight Diner, LLC v. Arbitration Forums, Inc., 2018 U.S. Dist. LEXIS 5786 (E.D. Mo. Jan. 12, 2018): This putative class action is brought on behalf of various Missouri insureds, for damages incurred as a result of the alleged misconduct…
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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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