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

Supreme Court: Class Actions — Plaintiffs Denied Certification Can’t Voluntarily Dismiss Individual Claims to Appeal Certification & Revive Their Claims If They Win — Must Try the Case — Rule 23(f) Is Sole Avenue for Interlocutory Review

Microsoft Corp. v. Baker, 2017 U.S. LEXIS 3721 (U.S. June 12, 2017): This case concerns options open to plaintiffs, when denied class-action [*7]  certification by a district court, to gain appellate review of the district court's order. Orders granting or denying class certification, this Court has held, are "inherently int ...
Microsoft Corp. v. Baker, 2017 U.S. LEXIS 3721 (U.S. June 12, 2017): This case concerns options open to plaintiffs, when denied class-action [*7]  certification by a district court, to gain appellate review of the district court's order. Orders granting or…
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Rule 41(b) Dismissal of Claim Asserted by Corporation Not Represented by Counsel Proper — Corp. Must Be Represented — In C.D. Cal., Same Applies to LLCs under Local Rule

Bourbeau v. Cogntive Code Corp., 2017 U.S. App. LEXIS 8444 (9th Cir. May 11, 2017): AMENDED MEMORANDUM* *   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Plaintiffs-Appellants John Bourbeau, Joseph G. Odish, ...
Bourbeau v. Cogntive Code Corp., 2017 U.S. App. LEXIS 8444 (9th Cir. May 11, 2017): AMENDED MEMORANDUM* *   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Plaintiffs-Appellants John Bourbeau,…
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Rule 11 Sanctions — Empty Head, Pure Heart Defense Fails — Reasonable Assessment of Res Judicata/Collateral Estoppel Bar Required — Motive Behind Rule 11 Motion Irrelevant [Improper Purpose Impossible?]

Clemmons v. Wells Fargo Bank, N.A., 2017 U.S. App. LEXIS 3797 (10th Cir. Mar. 2, 2017): *   These consolidated appeals were ordered submitted on the briefs on October 20, 2016. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, howe ...
Clemmons v. Wells Fargo Bank, N.A., 2017 U.S. App. LEXIS 3797 (10th Cir. Mar. 2, 2017): *   These consolidated appeals were ordered submitted on the briefs on October 20, 2016. This order and judgment is not binding precedent, except under…
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RICO Limitations: If Storm Warnings, Plaintiff Must Show It “Exercised Due Diligence But Couldn’t Find and Avoid the Storm” (Good Quote) — Can a Lawsuit Be a Predicate Act? — It Won’t Revive Claim by Attaching Out-of-Time Fraudulent Documents

Hawk Mountain LLC v. Ram Capital Grp. LLC, 2017 U.S. App. LEXIS 8492 (3d Cir. May 12, 2017): *   This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. In a case awash in apparent scandal our ruling today is decidedly ordinary: The plaintiffs' civil claims ...
Hawk Mountain LLC v. Ram Capital Grp. LLC, 2017 U.S. App. LEXIS 8492 (3d Cir. May 12, 2017): *   This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. In…
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Sanctions: Vexatious Litigant Injunction—Abuse of Discretion: Less Deference If “Unaccompanied by Reasoning” (Good Quotes) —Different Injns on Similarly Situated Parties, 1 Harsher Than Sought, Reversed

In re Ross, 2017 U.S. App. LEXIS 10004 (3d Cir. June 6, 2017): Raymond Ross appeals from a broad filing injunction issued against him by the Bankruptcy Court after he and his wife used the bankruptcy process to stave off the sheriff's sale of their home. Ross argues that, as a matter of law, a bankruptcy court may never is ...
In re Ross, 2017 U.S. App. LEXIS 10004 (3d Cir. June 6, 2017): Raymond Ross appeals from a broad filing injunction issued against him by the Bankruptcy Court after he and his wife used the bankruptcy process to stave off …
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RICO: Marijuana Growing=Predicate Act—Business Is Primarily Criminal—RICO Incorporates Common Law of Nuisance—Adjacent Property Plausibly Injured by Odors, Openly Criminal Acts—How “Concrete” Must Injury Be? Is There a Circuit Split?

Safe Streets Alliance v. Hickenlooper, 2017 U.S. App. LEXIS 10101 (10th Cir. June 7, 2017): These three appeals arise from two cases that concern the passage, implementation, and alleged effects of Amendment 64 to the Colorado Constitution, Colo. Const. art. XVIII, § 16. Amendment 64 repealed many of the State's criminal ...
Safe Streets Alliance v. Hickenlooper, 2017 U.S. App. LEXIS 10101 (10th Cir. June 7, 2017): These three appeals arise from two cases that concern the passage, implementation, and alleged effects of Amendment 64 to the Colorado Constitution, Colo. Const. art. …
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RICO: If Enterprise’s Business Is Primarily Racketeering Activity (e.g., Crime Family), Horizontal Relatedness Shown by Linking Acts to Enterprise — Otherwise, HJ Factors Must Be Applied

Reich v. Lopez, 2017 U.S. App. LEXIS 9172 (2d Cir. May 26, 2017): Plaintiff-Appellant Otto J. Reich is the principal of a (co-plaintiff) consulting firm specializing, inter alia, in fighting government corruption. He alleges that he and his firm were victims of an effort to discredit them by persons connected to a Venezuelan energy co ...
Reich v. Lopez, 2017 U.S. App. LEXIS 9172 (2d Cir. May 26, 2017): Plaintiff-Appellant Otto J. Reich is the principal of a (co-plaintiff) consulting firm specializing, inter alia, in fighting government corruption. He alleges that he and his firm were…
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Inherent Power Sanctions Apt in Court 1 for Wasting Judicial Resources by Litigating Claims Party Knows Court 2 Has Enjoined — Litigants Are Not Their Opponents’ Keepers (Good Quote) — Dismissal, $1.29 MM in Fees Excessive

In re Jemsek Clinic, PA (Blue Cross Blue Shield of NC v. Jemsek Clinic, PA), 2017 U.S. App. LEXIS 3853 (4th Cir. Mar. 3, 2017): In this case, the bankruptcy court imposed staggering sanctions on a creditor. It dismissed with prejudice claims that the creditor valued at over $10 million, and it ordered the creditor to pay the d ...
In re Jemsek Clinic, PA (Blue Cross Blue Shield of NC v. Jemsek Clinic, PA), 2017 U.S. App. LEXIS 3853 (4th Cir. Mar. 3, 2017): In this case, the bankruptcy court imposed staggering sanctions on a creditor. It dismissed with …
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Rule 37 Sanctions for Spoliation — Default Judgment — Bad Faith Shown by Use of Cleansing Programs, Misrepresentations to the Court, Email Saying “They Were Supposed to Be Erased by the IT Department”

Organik Kimya v. Int'l Trade Comm’n, 2017 U.S. App. LEXIS 2623 (Fed. Cir. Feb. 15, 2017): Organik Kimya San. ve Tic., A.[#x15e]., Organik Kimya Netherlands B.V., and Organik Kimya US, Inc. (collectively, "Organik Kimya") appeal from the International Trade Commission's ("the Commission" or "I ...
Organik Kimya v. Int'l Trade Comm’n, 2017 U.S. App. LEXIS 2623 (Fed. Cir. Feb. 15, 2017): Organik Kimya San. ve Tic., A.[#x15e]., Organik Kimya Netherlands B.V., and Organik Kimya US, Inc. (collectively, "Organik Kimya") appeal from the International Trade Commission's …
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Facebook Authentication — Page Authenticated as Defendant’s by Fact It Bears His Name (Misspelled), Photo, and Name of His Gang — 404(b) Not Implicated by Photo of Defendant Holding Gun Where Access to Gun at Issue — A Photo Is Not Hearsay

People v. Pettes, 2017 Mich. App. LEXIS 881 (Mich. Ct. App. May 25, 2017): Per Curiam. Defendant appeals as of right his jury trial convictions of second-degree murder, MCL 750.317, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant ...
People v. Pettes, 2017 Mich. App. LEXIS 881 (Mich. Ct. App. May 25, 2017): Per Curiam. Defendant appeals as of right his jury trial convictions of second-degree murder, MCL 750.317, and possession of a firearm during the commission of a…
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Recent Posts

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

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

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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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