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

Removal OK under America Invents Act (§1454) If Court Must Interpret Patent — Grable Implicated — Judicial Notice of Internet Evidence: Adverse Party’s Website on 12(b)(1) (SMJ) Motion (Good Discussion of Limits and Factors reTaking Notice)

Apollo Enter. Solutions, Inc. v. Lantern Credit, LLC, 2018 U.S. Dist. LEXIS 6818 (C.D. Cal. Jan. 16, 2018): [PROPOSED] ORDER DENYING PLAINTIFF'S MOTION TO REMAND [13] AND DENYING PLAINTIFF'S MOTION TO DISMISS DEFENDANT'S FIRST AMENDED COUNTERCLAIMS [34] I. INTRODUCTION Pendin ...
Apollo Enter. Solutions, Inc. v. Lantern Credit, LLC, 2018 U.S. Dist. LEXIS 6818 (C.D. Cal. Jan. 16, 2018): [PROPOSED] ORDER DENYING PLAINTIFF'S MOTION TO REMAND [13] AND DENYING PLAINTIFF'S MOTION TO DISMISS DEFENDANT'S FIRST AMENDED COUNTERCLAIMS [34] I. INTRODUCTION Pending…
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If Dismissal on Shotgun Pleading Grounds (“Material Allegations … Buried Beneath … Pages of Rambling Irrelevancies” (Good Quote)), Must Give One Amendment Before Dismissing with Prejudice — Pendent State Claims Should Be Dismissed w/o Prejudice

Vibe Micro, Inc., 2018 WL 268849 (11th Cir. Jan. 3, 2018): *1 This appeal concerns the discretion of a district court to dismiss a complaint on shotgun pleading grounds. Plaintiff Edward Mandel1 appeals the district court’s dismissal with preju ...
Vibe Micro, Inc., 2018 WL 268849 (11th Cir. Jan. 3, 2018): *1 This appeal concerns the discretion of a district court to dismiss a complaint on shotgun pleading grounds. Plaintiff Edward Mandel1 appeals the district court’s dismissal with prejudice…
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Psychologist-Patient Privilege: Mere Fact Patient Tells Doc Fact Crime Has Been Committed, Which Must Be Disclosed to Authorities, Doesn’t Forfeit Confidentiality of Communications — Same re Attorney-Client (Lawyer Disclosure of Facts Not a Waiver)

United States v. Murra, 2018 U.S. App. LEXIS 906 (5th Cir. Jan. 15, 2018): The earlier opinion issued January 12, 2018, is withdrawn by the panel, and the following is issued in its place:   In August 2016, Defendant-Appellant Olga Murra was convicted by a jury of two counts of forced labor, in violation of
United States v. Murra, 2018 U.S. App. LEXIS 906 (5th Cir. Jan. 15, 2018): The earlier opinion issued January 12, 2018, is withdrawn by the panel, and the following is issued in its place:   In August 2016, Defendant-Appellant Olga Murra…
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Inherent Power Sanctions: Dismissal without Prejudice Generally Not an Abuse of Discretion — Dismissal OK for Omitting Statutory Prerequisite in Complaint without Showing of Intentionality — Meaning of Abuse of Discretion (11th Cir.)

Jenkins v. Hutcheson, 2018 WL 360428 (11th Cir. Jan. 11, 2018): PER CURIAM: *1 Adrian Jenkins, a state prisoner proceeding pro se, appeals the district court’s dismissal of his complaint without prejudice for failure to fully disclose all of his prior lawsuits on the complaint form. He argues that his ...
Jenkins v. Hutcheson, 2018 WL 360428 (11th Cir. Jan. 11, 2018): PER CURIAM: *1 Adrian Jenkins, a state prisoner proceeding pro se, appeals the district court’s dismissal of his complaint without prejudice for failure to fully disclose all of…
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FRAP 38 Sanctions: An Appeal Can Be Considered Frivolous “When an Appellant Gives the Court Nothing to Consider in the Appeal,” Such as by Asserting Arguments Impermissibly Raised for the First Time on Appeal

Matter of Kite (Kenneth Michael Wright, LLC v. Kite Bros., LLC), 2018 WL 400743 (5th Cir. Jan. 12, 2018): PER CURIAM: **1 On April 5, 2017, the U.S. District Court for the Western District of Louisiana entered an order granting Appellees Kite Bros., L.L.C., and Robert Kite’s Motion to Dismiss Untimely Bankrup ...
Matter of Kite (Kenneth Michael Wright, LLC v. Kite Bros., LLC), 2018 WL 400743 (5th Cir. Jan. 12, 2018): PER CURIAM: **1 On April 5, 2017, the U.S. District Court for the Western District of Louisiana entered an order…
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Arbitration: Appeals Court Has Jurisdiction under FAA § 16 When District Court Couples Vacatur of Award (Always Appealable) with Remand for New Arbitration — Arbitrator Exceeds Powers under § 10(a)(4) Only When Award Is Completely Irrational

Sanchez v. Elizondo, 2018 U.S. App. LEXIS 367, 2018 WL 297352 (9th Cir. Jan. 5, 2018): Defendant-Appellant Robert Elizondo appeals the district court's order vacating his arbitration award and remanding for further proceedings. Elizondo was awarded $75,000 in damages (the Award) in the parties' arbitration, which Elizondo init ...
Sanchez v. Elizondo, 2018 U.S. App. LEXIS 367, 2018 WL 297352 (9th Cir. Jan. 5, 2018): Defendant-Appellant Robert Elizondo appeals the district court's order vacating his arbitration award and remanding for further proceedings. Elizondo was awarded $75,000 in damages (the…
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Sanctions: Party Who Refuses to Pay Arbitration Award Presumptively Should Be Ordered to Pay in Addition the Other Side’s Fees in Enforcing the Award And His/Her Lawyers May Be Sanctioned under § 1927.

Hyatt Franchising, L.L.C. v. Shen Zhen New World I, LLC, 2018 U.S. App. LEXIS 813 (7th Cir. Jan. 12, 2018): Our first decision in this appeal affirmed a judgment enforcing an arbitrator's award of approximately $9 million against Shen Zhen.
Hyatt Franchising, L.L.C. v. Shen Zhen New World I, LLC, 2018 U.S. App. LEXIS 813 (7th Cir. Jan. 12, 2018): Our first decision in this appeal affirmed a judgment enforcing an arbitrator's award of approximately $9 million against Shen Zhen.…
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CAFA: Motion to Consolidate State Court Suits for Trial Creates a Removable Mass Action — CAFA Jurisdiction May Be Invoked Even If One of the Underlying Suits Was Commenced Pre-CAFA Enactment

Lester v. Exxon Mobil Corp., 2018 U.S. App. LEXIS 547 (5th Cir. Jan. 9, 2018): ExxonMobil Oil Corporation removed the underlying suits as a "mass action" pursuant to the Class Action Fairness Act of 2005.1 The consolidated interlocutory appeals of Warren Lester, et al ...
Lester v. Exxon Mobil Corp., 2018 U.S. App. LEXIS 547 (5th Cir. Jan. 9, 2018): ExxonMobil Oil Corporation removed the underlying suits as a "mass action" pursuant to the Class Action Fairness Act of 2005.1 The consolidated interlocutory appeals…
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Sanctions: Bankruptcy R. 9011’s Safe Harbor Exception for Filing Frivolous Petition Applies Only to the Filer, Not to Lawyer Influencing the Filing — § 1927 Doesn’t Apply to Negligence But Could Reach Unqualified Lawyer Taking on Complex Bkcy

In re Blasingame (Church Joint Venture, LP v. Grusin), 2018 U.S. App. LEXIS 216 (6th Cir. Jan 4, 2018): This appeal arises from a judgment entered by the Sixth Circuit Bankruptcy Appellate Panel ("Panel") on November 7, 2016, vacating sanctions imposed against Appellee Martin Grusin by the U.S. Bankruptcy Court for the Weste ...
In re Blasingame (Church Joint Venture, LP v. Grusin), 2018 U.S. App. LEXIS 216 (6th Cir. Jan 4, 2018): This appeal arises from a judgment entered by the Sixth Circuit Bankruptcy Appellate Panel ("Panel") on November 7, 2016, vacating sanctions…
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Website Authentication by Contents, Testimony of Witness Present at Creation — Discrepancies between Testimony & Webpage Goes to Weight — No Need for Expert — Objection Must Be Specific to Preserve Review

United States v. Blanchard, 867 F.3d 1 (1st Cir. 2017): Following a jury trial in the United States District Court for the District of Maine, Fritz Blanchard was convicted of one count of aiding and abetting the interstate transportation of three victims for purposes of prostitution, in violation of
United States v. Blanchard, 867 F.3d 1 (1st Cir. 2017): Following a jury trial in the United States District Court for the District of Maine, Fritz Blanchard was convicted of one count of aiding and abetting the interstate transportation of…
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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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