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

RICO: 171 Pp. of Vague Allegations, Each Count Adopting Prior ¶¶=Shotgun Pleading, Violates Rule 8—Abstention: Younger Applies to Civil Case Only If St. Court’s Ability to Perform Judicial Fxs Involved—Colorado River Very Rare

Barone v. Wells Fargo Bank, N.A., 2017 U.S. App. LEXIS 18396 (11th Cir. Sept. 21, 2017): John M. Barone, proceeding pro se, appeals the district court's dismissal of his complaint alleging various wrongful acts by Wells Fargo Bank, N.A. ("Wells Fargo"), after it acquired Barone's mortgage in 2008. Th ...
Barone v. Wells Fargo Bank, N.A., 2017 U.S. App. LEXIS 18396 (11th Cir. Sept. 21, 2017): John M. Barone, proceeding pro se, appeals the district court's dismissal of his complaint alleging various wrongful acts by Wells Fargo Bank, N.A. ("Wells …
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Rule 16: What Constitutes “Good Cause” to Amend Scheduling Order to Allow Late Designation of Expert — Five Factors (6th Cir.), Diligence Key — Appeals: Waiver of Argument by Not Raising It Below — Plain-Miscarriage-of-Justice Exception

Gatza v. DCC Litig. Facility, Inc., 2017 U.S. App. LEXIS 21861 (6th Cir. Oct. 31, 2017): Plaintiffs-Appellants Kathy Gatza and Pamela Sutherland (together, "Plaintiffs") appeal the district court's denial of their motions to amend the scheduling orders in their cases. Before the expert-disclosure deadlines passed ...
Gatza v. DCC Litig. Facility, Inc., 2017 U.S. App. LEXIS 21861 (6th Cir. Oct. 31, 2017): Plaintiffs-Appellants Kathy Gatza and Pamela Sutherland (together, "Plaintiffs") appeal the district court's denial of their motions to amend the scheduling orders in their cases.…
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Removal: Where Statute Authorizes Fees, The Fee Claim Is Included in Amount in Controversy — But Is It Only Already-Accrued Fees or Prospective Fees, Too? — Circuit Split

Skau v JBS Carriers, Inc., 2017 U.S. Dist. LEXIS 197232 (W.D. Wash. Nov. 30, 3017): This matter comes before the Court on Plaintiffs' motion for remand (Dkt. No. 13). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS the motion as it relates ...
Skau v JBS Carriers, Inc., 2017 U.S. Dist. LEXIS 197232 (W.D. Wash. Nov. 30, 3017): This matter comes before the Court on Plaintiffs' motion for remand (Dkt. No. 13). Having thoroughly considered the parties' briefing and the relevant record, the…
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Hearsay: Importance of Specificity to 803(3) (State of Mind) Foundation — Settlement Negotiations: Rule 408 Doesn’t Bar Evidence Party Acknowledged a Fact at Settlement Meeting That It Now Denies

Fabick, Inc. v. Fabco Equip., Inc., 2017 U.S. Dist. LEXIS 198963 (wdwis Dec. 4, 2017): This case is set for a jury trial commencing, December 11, 2017, to resolve plaintiff Fabick, In ...
Fabick, Inc. v. Fabco Equip., Inc., 2017 U.S. Dist. LEXIS 198963 (wdwis Dec. 4, 2017): This case is set for a jury trial commencing, December 11, 2017, to resolve plaintiff Fabick, Inc.'s remaining claims of trademark infringement against defendants…
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FRAP 38 Sanctions Don’t Require Bad Faith But 6th Cir. Only Imposes If Improper Purpose — §1927 Sanctions Don’t Require Bad Faith in 6th Cir., But Still > Negligence: Intentional Abuse of Judicial Process/Knowing Disregard of Multiplicitousness

Raub v. Moon Lake Prop Owners’ Ass’n, 2017 U.S. App. LEXIS 22933 (6th Cir. Nov. 15, 2017): Plaintiffs David and William Raub appeal the dismissal of their action asserting various civil rights and disability discrimination claims arising from their ownership of lots and membership in a property owners' association. Defendants ...
Raub v. Moon Lake Prop Owners’ Ass’n, 2017 U.S. App. LEXIS 22933 (6th Cir. Nov. 15, 2017): Plaintiffs David and William Raub appeal the dismissal of their action asserting various civil rights and disability discrimination claims arising from their ownership…
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Res Judicata / Collateral Estoppel: Claims within Exclusive Jurisdiction of Federal Courts Generally Not Barred by Prior State Court Case Arising Out of Common Nucleus of Operative Fact — FRAP 38: Partial Success on Appeal Avoids Sanctions

Veit v. Frater, 2017 U.S. App. LEXIS 22220 (7th Cir. Oct. 31, 2017):   ORDER Jackson Veit sued Angela Frater and "New Company" asserting that they conspired to defraud him of the value of securities that he held in InfoCorp, LLC. A magistrate judge, presiding by consent, see 28 U.S.C. § ...
Veit v. Frater, 2017 U.S. App. LEXIS 22220 (7th Cir. Oct. 31, 2017):   ORDER Jackson Veit sued Angela Frater and "New Company" asserting that they conspired to defraud him of the value of securities that he held in InfoCorp, LLC.…
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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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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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