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

Work Product — Disclosure in Corp. Acquisition Setting — Standing: Seller Supplying Info to Buyer’s Counsel Can’t Assert Work Product over Resulting Report — Production of Report Doesn’t Violate Seller’s Fifth Amendment Rights Because Seller

Waymo LLC v. Uber Techs., Inc., 2017 U.S. App. LEXIS 17668 (Fed. Cir. Sept. 13, 2017): Appellant Anthony Levandowski, an intervenor, seeks to prevent discovery sought by Appellee Waymo LLC ("Waymo").1 Waymo sued Uber Technologies, Inc. ("Uber"), Ottomotto LLC, and Otto Trucking LLC (together, "Ottom ...
Waymo LLC v. Uber Techs., Inc., 2017 U.S. App. LEXIS 17668 (Fed. Cir. Sept. 13, 2017): Appellant Anthony Levandowski, an intervenor, seeks to prevent discovery sought by Appellee Waymo LLC ("Waymo").1 Waymo sued Uber Technologies, Inc. ("Uber"), Ottomotto LLC, and…
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Sanctions & Magistrate Judges: MJs May Preclude Evidence & Deem Facts Admitted under R. 37(b), If These Don’t End the Claim—Violated Order Needn’t Be Written—Order Allowing Discovery≠R. 37 Order—Can MJs Order R. 11 Sanctions? (Cir. Split)

Joint Stock Company Channel One Russia Worldwide v. Informir LLC, 2017 U.S. Dist. LEXIS 165702 (S.D.N.Y. July 18, 2017): Before me are two motions, both filed by plaintiffs, seeking sanctions against defendant Panorama Alliance, LP (Panorama) and its former attorney Alan P. Fraade, of the Mintz Fraade Law Firm, P.C. (Mintz Fraade).
Joint Stock Company Channel One Russia Worldwide v. Informir LLC, 2017 U.S. Dist. LEXIS 165702 (S.D.N.Y. July 18, 2017): Before me are two motions, both filed by plaintiffs, seeking sanctions against defendant Panorama Alliance, LP (Panorama) and its former attorney…
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Do “Costs” in Rule 41(d) Include Attorney’s Fees? — Circuit Split — Can Inherent Power Sanctions Be Used If the Answer Is No? — Generally Not — Court May Not Grant Unrequested Relief under Rule 54(c) If It Is a Surprise and Prejudicial

Portillo v. Cunningham, 2017 U.S. App. LEXIS 19603 (5th Cir. Oct. 6, 2017): JohnJay Portillo appeals the dismissal of his claims under common law, Texas statutes, and 42 U.S.C. § 1983. He contends that the court erred by dismissing for res judicata, and he challenges the order to pay costs under Federal Rule of Civil Procedure 41(d). ...
Portillo v. Cunningham, 2017 U.S. App. LEXIS 19603 (5th Cir. Oct. 6, 2017): JohnJay Portillo appeals the dismissal of his claims under common law, Texas statutes, and 42 U.S.C. § 1983. He contends that the court erred by dismissing for…
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Hearsay: Terrorist Claims of Responsibility ≠ Statements against Interest But Claims of Benefit; Newspaper Articles = Hearsay — Expert May Explain Why Facts Lead to Conclusion Even If Lay Person Can Reach Conclusion — Good SJ Quote

Strauss v. Crédit Lyonnais, S.A., 2017 U.S. Dist. LEXIS 165722 (E.D.N.Y. Sept. 30, 2017): Pursuant to the 2013 statute of limitations amendment [*12]  to the
Strauss v. Crédit Lyonnais, S.A., 2017 U.S. Dist. LEXIS 165722 (E.D.N.Y. Sept. 30, 2017): Pursuant to the 2013 statute of limitations amendment [*12]  to the Anti-Terrorism Act ("ATA"), Plaintiffs' claims arising from five attacks (the "Reinstated Attacks"), previously dismissed …
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Rule 68 Offer of Judgment: Ambiguities Construed against Drafter, But Circuit Split Exists as to Whether This Applies to Ambiguity Concerning Whether Statutorily-Awarded Fees Are Included in the Offer

Johnson v. Hyatt Hotels Corp., 2017 U.S. Dist. LEXIS 165850 (D.S.C. Oct. 6, 2017): This matter is before the court on plaintiff Bradley Johnson's ("Johnson") motion for attorneys ...
Johnson v. Hyatt Hotels Corp., 2017 U.S. Dist. LEXIS 165850 (D.S.C. Oct. 6, 2017): This matter is before the court on plaintiff Bradley Johnson's ("Johnson") motion for attorneys' fees. For the reasons set forth below, the court denies the…
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YouTube Authentication—New York State—By Certification from YouTube, Testimony of Witness Who Viewed It, Party’s Admission a Video Was Done in Call to 3d Party, Appearance, Contents, Characteristics

People v. Franzese, 2017 N.Y. App. Div. LEXIS 6967 (2d Dep’t Oct. 4, 2017): Appeal by the defendant from a judgment of the Supreme Court, Queens County (Schwartz, J.), rendered July 8, 2015, convicting him of attempted assault in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imp ...
People v. Franzese, 2017 N.Y. App. Div. LEXIS 6967 (2d Dep’t Oct. 4, 2017): Appeal by the defendant from a judgment of the Supreme Court, Queens County (Schwartz, J.), rendered July 8, 2015, convicting him of attempted assault in the…
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Hearsay—911 Call: Present Sense Impression May Apply to Answers to Questions after the Event, Requires No Calculated Narration — Excited Utterance (Factors), May Be More Probative Than Later Testimony Given after Consequences Considered

United States v. Boyce, 742 F.3d 792 (7th Cir. 2013): After a foot chase during which an officer said he saw Darnell Boyce throw a gun into a yard, officers recovered the gun from the area and also found ammunition for the gun in Boyce's pocket. A jury convicted Boyce of being a felon in possession of a firearm and ammunition. He ...
United States v. Boyce, 742 F.3d 792 (7th Cir. 2013): After a foot chase during which an officer said he saw Darnell Boyce throw a gun into a yard, officers recovered the gun from the area and also found ammunition…
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Rule 37 Dismissal Sanction Warranted for Refusal to Sit for Deposition on Fifth Amendment Grounds — Party Must Appear and Assert the Fifth Question by Question — Can’t Refuse to Attend — Dismissal Sanction Requires Willfulness or Bad Faith

United States v. Twenty-Nine Pre-Columbian And Colonial Artifacts From Peru, 2017 U.S. App. LEXIS 9748 (11th Cir. June 2, 2017): Jean Combe-Fritz appeals from the district court's final judgment of forfeiture of a number of artifacts confiscated from him by U.S. Customs and Border Protection ("CBP") when he arriv ...
United States v. Twenty-Nine Pre-Columbian And Colonial Artifacts From Peru, 2017 U.S. App. LEXIS 9748 (11th Cir. June 2, 2017): Jean Combe-Fritz appeals from the district court's final judgment of forfeiture of a number of artifacts confiscated from him by …
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Prohibition against Claim-Splitting: Factors—Transactional Analysis—Second Suit Not Saved by Extending Time Period, Adding Claims—Same Series of Transactions, Same Goals Dispositive—Relationship to Res Judicata

Vanover v. NCO Fin. Servs., 857 F.3d 833 (11th Cir. 2017): Plaintiff-Appellant Karen Vanover ("Vanover") sued Defendant-Appellee NCO Financial Systems, Inc. ("NCO"), on April 23, 2014, for violations of the
Vanover v. NCO Fin. Servs., 857 F.3d 833 (11th Cir. 2017): Plaintiff-Appellant Karen Vanover ("Vanover") sued Defendant-Appellee NCO Financial Systems, Inc. ("NCO"), on April 23, 2014, for violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227,…
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Rule 37(c) Sanctions: Non-Disclosure of Documents under 26(a) ≠ Exclusion If Defendant Already Has Them (No Surprise) — Experts: Reasonableness of Conduct in Light of Regulatory Framework ≠ Legal Opinion—Punitive Damages: Constitutionality

Daugherty v. Ocwen Loan Serv., LLC, 2017 WL 3172422 (4th Cir. July 26, 2017): Plaintiff David Daugherty filed a complaint under the Fair Credit Reporting Act (FCRA),
Daugherty v. Ocwen Loan Serv., LLC, 2017 WL 3172422 (4th Cir. July 26, 2017): Plaintiff David Daugherty filed a complaint under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., alleging that defendant Ocwen Loan Servicing, LLC …
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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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