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 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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Text Evidence: Photos of Texts Don’t Violate Best Evidence, = 1001(d) Duplicate Original — Authentication by (a) Testimony of Wit. Who Texted with Def., (b) Self-ID’ing Text, (c) No. Assigned to Def.; (d) No. Linked to Def. in Wit.’s Phone

Pierce v. State, 2017 Ga. LEXIS 940 (Ga. Sup. Ct. Oct. 30, 2017): Appellant Matthew Caleb Pierce was tried before a jury and found guilty on six counts of aggravated child molestation, two counts of child molestation, two counts of sexual battery, and one count each of sexual exploitation of a child, distribution of Hydromorphone, and ...
Pierce v. State, 2017 Ga. LEXIS 940 (Ga. Sup. Ct. Oct. 30, 2017): Appellant Matthew Caleb Pierce was tried before a jury and found guilty on six counts of aggravated child molestation, two counts of child molestation, two counts of…
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Vexatious Litigant Injunctions Are Issued under Inherent Power as Codified by All Writs Act — Requiring Lawyer for Future Suit, Not Prescreening by Court, Saves Judicial Time—Post-Dismissal Inj’n OK—Meaning of Abuse of Discretion (11th Cir.)

Klayman v. DeLuca, 2017 WL 4791081 (11th Cir. Oct. 24, 2017): PER CURIAM: *1 Larry Klayman, an attorney proceeding pro se, appeals the district court’s injunction barring him from filing pro se lawsuits against Baker & Hostetler, LLP and attorneys Suzanne Jambe, James Rollinson, and Hewitt Shaw< ...
Klayman v. DeLuca, 2017 WL 4791081 (11th Cir. Oct. 24, 2017): PER CURIAM: *1 Larry Klayman, an attorney proceeding pro se, appeals the district court’s injunction barring him from filing pro se lawsuits against Baker & Hostetler, LLP and…
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Inherent Power Sanctions: Referral to Disciplinary Authority for Threatening to Sue Adverse Expert If Opinion Not Withdrawn + Misrepresentation on Appeal — “The Decision to Impose Sanctions Is Not to Be Made Lightly” (Good Quote)

Gross v. Sun Life Assur. Co., 2018 U.S. App. LEXIS 1190 (1st Cir. Jan. 18, 2018): More than four years ago, we remanded this case with the instruction that appellant Sun Life Assurance Co. reconsider its rejection of Diahann Gross's claim for disability benefits based on chronic and severe pain. See
Gross v. Sun Life Assur. Co., 2018 U.S. App. LEXIS 1190 (1st Cir. Jan. 18, 2018): More than four years ago, we remanded this case with the instruction that appellant Sun Life Assurance Co. reconsider its rejection of Diahann Gross's…
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Rule 11 Safe Harbor — No Need to Serve Brief or Supporting Affidavits to Start 21-Day Period — Notice of Motion Plus Correspondence Concerning Motion Sufficient — Bad Faith Inferred from Recklessly Citing Bad Law and Cases Hurting Citer’s Position

Malkan v. Mutua, 2017 U.S. App. LEXIS 21766 (2d Cir. Oct. 30, 2017): SUMMARY ORDER ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of said District Court be and it hereby is AFFIRMED. Appellants Jeffrey Malkan and Frederic Ostrove ...
Malkan v. Mutua, 2017 U.S. App. LEXIS 21766 (2d Cir. Oct. 30, 2017): SUMMARY ORDER ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of said District Court be and it hereby is AFFIRMED. Appellants…
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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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