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

Appealability: Even If Some Claims Were Dismissed without Prejudice to Permit Amendment of Complaint, Action Is Appealable If Plaintiff Elects to Stand on Complaint

Lewis v. Defender Ass’n of Phila., 2017 WL 4994489 (3d Cir. Nov. 2, 2017): PER CURIAM Clinton Lewis and his two minor children filed a lawsuit in the Philadelphia Court of Common Pleas, bringing federal and state claims relating to events surrounding the removal of the children from Lewis’s custody. Noting the federal claim ...
Lewis v. Defender Ass’n of Phila., 2017 WL 4994489 (3d Cir. Nov. 2, 2017): PER CURIAM Clinton Lewis and his two minor children filed a lawsuit in the Philadelphia Court of Common Pleas, bringing federal and state claims relating to…
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Spoliation: Violation of Rule or Regulation Pertaining to Document Retention Is Not Per Se Bad Faith [Note: The Regulation at Issue Was Not Adopted for the Benefit of the Party/Class Claiming Spoliation]

Eaton-Stephens v. Grapevine Colleyville Indep. Sch. Dist., 2017 U.S. App. LEXIS 22704 (5th Cir. Nov. 13, 2017) (unpublished): This appeal arises from the district court's grant of summary judgment in favor of Grapevine Colleyville Independent School District on all of Linda Eaton-Stephens's claims under
Eaton-Stephens v. Grapevine Colleyville Indep. Sch. Dist., 2017 U.S. App. LEXIS 22704 (5th Cir. Nov. 13, 2017) (unpublished): This appeal arises from the district court's grant of summary judgment in favor of Grapevine Colleyville Independent School District on all of…
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§ 1927 Sanctions — Recklessness without More Insufficient — Uncertainty Reflected in Circuit’s Model Jury Instructions & Fact Another Circuit Accepted Argument Means It Isn’t Frivolous—Opposing Motion to Strike Claim w/o Basis Sanctionable

Stone Creek, Inc. v. Omnia Italian Design, Inc., 2017 U.S. App. LEXIS 16632 (9th Cir. Aug. 30, 2017): This appeal, set in the high-stakes world of furniture sales, runs the gamut of trademark infringement issues. The facts are somewhat unusual: the alleged infringer, leather furniture manufacturer Omnia Italian Design, Inc. ("Omn ...
Stone Creek, Inc. v. Omnia Italian Design, Inc., 2017 U.S. App. LEXIS 16632 (9th Cir. Aug. 30, 2017): This appeal, set in the high-stakes world of furniture sales, runs the gamut of trademark infringement issues. The facts are somewhat unusual:…
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RICO: In Determining Whether Pattern Stated against a Defendant, Court Considers Only Alleged Offenses That Defendant Was Involved in — Continuity: Relevant Period Is When Predicates Occurred, Not Duration of Scheme

Sterling Nat’l Mortg. Co. v. Infinite Title Solutions, LLC, 2011 WL 13220625 (S.D. Fla. Mar. 3, 2011): REPORT AND RECOMMENDATIONS ON MOTIONS TO DISMISS *1 THIS MATTER is before the Court concerning motions to dismiss filed by Defendants Infinite Title Solutions, LLC, Rudy Hernandez (th ...
Sterling Nat’l Mortg. Co. v. Infinite Title Solutions, LLC, 2011 WL 13220625 (S.D. Fla. Mar. 3, 2011): REPORT AND RECOMMENDATIONS ON MOTIONS TO DISMISS *1 THIS MATTER is before the Court concerning motions to dismiss filed by Defendants Infinite Title…
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Attorney-Client Privilege Construed Narrowly in Connection with Agency Investigations — Log Must Set Forth Specific Facts Establishing Each Element of Privilege, Otherwise Waiver

EEOC v. BDO USA, LLP, 2017 U.S. App. LEXIS 23067 (5th Cir. Nov. 16, 2017): IT IS ORDERED that our prior panel opinion, EEOC v. BDO USA, L.L.P., 856 F.3d 356 (5th Cir. 2017), is WITHDRAWN, and the following opinion is SUBSTITUTED therefor. During the course of an employment discrimination investigation, the Equal Employ ...
EEOC v. BDO USA, LLP, 2017 U.S. App. LEXIS 23067 (5th Cir. Nov. 16, 2017): IT IS ORDERED that our prior panel opinion, EEOC v. BDO USA, L.L.P., 856 F.3d 356 (5th Cir. 2017), is WITHDRAWN, and the following opinion…
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Appeals Court Has Jurisdiction over Denial of Motion to Intervene If Is As of Right — Disqualification: Court May Look Through Generality of “Substantially Related” If It Has Specific Evidence Proving No Confidential Info of Former Client Used

Kirsch v. Dean, 2017 U.S. App. LEXIS 21257 (6th Cir. Oc.t 25, 2017): Defendant Robert Dean and Proposed Intervenor ZFX, Inc. jointly appeal: (1) a December 7, 2016 order denying Dean's motion to disqualify Middleton Reutlinger, the law firm representing Plaintiff Terri Kirsch, and to strike its filings; and (2) a June 7, 2 ...
Kirsch v. Dean, 2017 U.S. App. LEXIS 21257 (6th Cir. Oc.t 25, 2017): Defendant Robert Dean and Proposed Intervenor ZFX, Inc. jointly appeal: (1) a December 7, 2016 order denying Dean's motion to disqualify Middleton Reutlinger, the law firm representing …
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Sanctions: Motion for Reconsideration of Rule 11 Sanctions Not Punishable under § 1927 without Specific Finding of Conduct Tantamount to Bad Faith — Is Recklessness-Plus (9th Cir. § 1927 Standard) a Species of Bad Faith or Something Else?

Wavetronix, LLC v. Myers, 2017 WL 5643189 (9th Cir. Nov. 24, 2017): Blake S. Atkin, attorney for Wavetronix, LLC, (“Wavetronix”) appeals the district court’s orders sanctioning him pursuant to
Wavetronix, LLC v. Myers, 2017 WL 5643189 (9th Cir. Nov. 24, 2017): Blake S. Atkin, attorney for Wavetronix, LLC, (“Wavetronix”) appeals the district court’s orders sanctioning him pursuant to Federal Rule of Civil Procedure 11 (Rule 11),1 and…
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Rule 16(f) & Inherent Power Sanctions: Modest $5,000 Punitive Fine OK as Minimum Needed to Punish Disregard of Court Orders — Willful Disregard Is Tantamount to Bad Faith Whether Due to “Incompetence or Impertinence” (Goodyear Unmentioned)

Yaffa v. Weidner, 2017 WL 5593501 (11th Cir. Nov. 21, 2017): Deanna L. Weidner, an attorney representing the defendant and counter-claimant SunSouth Bank (“SunSouth”) in this action, appeals from a sanctions order that imposed a “fine” of $5,000 on Weidner personally. Weidner asserts that the sanctions were entered without ade ...
Yaffa v. Weidner, 2017 WL 5593501 (11th Cir. Nov. 21, 2017): Deanna L. Weidner, an attorney representing the defendant and counter-claimant SunSouth Bank (“SunSouth”) in this action, appeals from a sanctions order that imposed a “fine” of $5,000 on Weidner…
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Unreasonable Delay May Render Rule 37(c) Sanctions Motion Untimely — Meritlessness as Substantial Justification for Not Making 26(a)(1) Disclosures — Post-Judgment Motion to Amend Deemed a 60(b) Motion, Must Be Filed within a Year of Entry of Judgment

Bush v. Dept. of Human Servs., 2017 WL 5125624 (3d Cir. Nov. 6, 2017): *1 Gerald Bush appeals the District Court’s order denying three motions he filed after the dismissal of his fourth amended complaint—a “Complaint and Law,” which the District Court construed as a motion for sanctions; a “Request for Appoi ...
Bush v. Dept. of Human Servs., 2017 WL 5125624 (3d Cir. Nov. 6, 2017): *1 Gerald Bush appeals the District Court’s order denying three motions he filed after the dismissal of his fourth amended complaint—a “Complaint and Law,” which the…
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RICO Injury Contingent on Outcome of Bankruptcy Not Concrete Enough to Confer Standing — Attorney’s Fees Alone As Injury? — 9-Month Pattern of Predicates Too Short, Can’t Be Extended by Non-Fraudulent Conduct

Yucaipa Am. Alliance Fund I, LP v. Ehrlich, 2017 WL 5483163 (3d Cir. Nov. 15, 2017): This case involves events surrounding the bankruptcies of Allied Systems Holdings, Inc. and a dispute between hedge funds who hold portions of Allied’s first lien debt. Plaintiffs are two hedge funds managed by Yucaipa Companies, LLC, (colle ...
Yucaipa Am. Alliance Fund I, LP v. Ehrlich, 2017 WL 5483163 (3d Cir. Nov. 15, 2017): This case involves events surrounding the bankruptcies of Allied Systems Holdings, Inc. and a dispute between hedge funds who hold portions of Allied’s first …
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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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