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

Rule 37(b), (d) Sanctions — Dismissal for Repeated Failure to Appear at Deposition, Disregard of Court Orders — Dismissal Factors (5th Circuit)

Sawyer v. Geico Gen. Ins. Co., 2017 U.S. Dist. LEXIS 86609 (S.D. Tex. May 18, 2017): MEMORANDUM AND RECOMMENDATION TO GRANT DEFENDANT'S SECOND MOTION FOR SANCTIONS On December 7, 2016, this matter was referred by United States District Judge Lee H. Rosenthal, for full pre-trial management, pursuant t ...
Sawyer v. Geico Gen. Ins. Co., 2017 U.S. Dist. LEXIS 86609 (S.D. Tex. May 18, 2017): MEMORANDUM AND RECOMMENDATION TO GRANT DEFENDANT'S SECOND MOTION FOR SANCTIONS On December 7, 2016, this matter was referred by United States District Judge Lee…
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Rule 37(c)(1) Sanctions: Exclusion of Witnesses for Failure to Disclose until Eve of Trial — Harmless Error Factors (6th Circuit) — Evidence: To Preserve Error on a Conditional Ruling, Counsel Must Object & Preserve Objection in Stipulated Judgment

Abrams v. Nucor Steel Marion, Inc., 2017 U.S. App. LEXIS 9323 (6th Cir. May 25, 2017): In this diversity class-action lawsuit alleging state-law claims of indirect trespass and nuisance,1 Plaintiffs-Appellants, [*3]  Randal Bush and Ronald Tolle (Plaintiffs), appeal several unfavorable pre-trial evidentiar ...
Abrams v. Nucor Steel Marion, Inc., 2017 U.S. App. LEXIS 9323 (6th Cir. May 25, 2017): In this diversity class-action lawsuit alleging state-law claims of indirect trespass and nuisance,1 Plaintiffs-Appellants, [*3]  Randal Bush and Ronald Tolle (Plaintiffs), appeal several unfavorable…
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Orwell and the Supreme Court

In opinions issued by current members of the U.S. Supreme Court, Orwell was the third most cited author, coming after Shakespeare and Lewis Carroll. Thomas E. Ricks, Churchill and Orwell 249 (2017), citing Scott Dodson and Ami Dodson, Literary Justice, The Green Bag (Aug. 26, 2015)  
In opinions issued by current members of the U.S. Supreme Court, Orwell was the third most cited author, coming after Shakespeare and Lewis Carroll. Thomas E. Ricks, Churchill and Orwell 249 (2017), citing Scott Dodson and Ami Dodson, Literary Justice,…
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Attorney-Client Privilege — Crime Fraud Exception Requires Showing of Fraud Independent of the Documents Sought under the Exception — Spoliation: No Duty to Preserve Absent Reasonably Foreseeable Dispute

Stone Surgical, LLC v. Stryker Corp., 2017 U.S. App. LEXIS 9031 (6th Cir. May 24, 2017): This case arises out of the deterioration of a decade-plus employment relationship between Stryker Corporation and Christopher Ridgeway. Stryker, a medical-device manufacturing company, employed Ridgeway as a sales representative, where he sold cu ...
Stone Surgical, LLC v. Stryker Corp., 2017 U.S. App. LEXIS 9031 (6th Cir. May 24, 2017): This case arises out of the deterioration of a decade-plus employment relationship between Stryker Corporation and Christopher Ridgeway. Stryker, a medical-device manufacturing company, employed…
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Rule 11 Sanctions Must Be Sought by Motion, Not as a Claim for Relief

Rosier v. Strobel, 2017 U.S. App. LEXIS 2834 (9th Cir. Feb. 15, 2017): *   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. The contract and tort claims alleged by Gail Rosier in this diversity action arise out of the attempts by her ex-husband, Jeffrey St ...
Rosier v. Strobel, 2017 U.S. App. LEXIS 2834 (9th Cir. Feb. 15, 2017): *   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. The contract and tort claims alleged by…
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Rule 37 Sanctions — Preclusion for Willful Violation of Discovery Order — “It Is Appropriate to Reject Lesser Sanctions Where Court Anticipates Continued Deceptive Misconduct” (Good Quote)

Amtrust Bank v. Lewis, 2017 U.S. App. LEXIS 7024 (9th Cir. April 21, 2017): *   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Rex Lewis appeals the district court's order (1) denying his motion for relief from judgment pur ...
Amtrust Bank v. Lewis, 2017 U.S. App. LEXIS 7024 (9th Cir. April 21, 2017): *   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Rex Lewis appeals the district court's…
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Instagram/Text Admissibility — Posts Sent to and Received by Third Parties Offered for the Truth = Hearsay — Once Posts Read into Evidence and Authenticated, Additionally Testimony about Them Is Cumulative

Commonwealth v. Colon, 2017 Pa. Super. Unpub. LEXIS 2067 (Pa. Super. Ct. May 25, 2017): Appellant Wilmer Colon appeals from the August 5, 2015 judgment of sentence entered in the Court of Common Pleas of Philadelphia County ("trial court"), following his jury convictions for third degree murder, possession of an instrument o ...
Commonwealth v. Colon, 2017 Pa. Super. Unpub. LEXIS 2067 (Pa. Super. Ct. May 25, 2017): Appellant Wilmer Colon appeals from the August 5, 2015 judgment of sentence entered in the Court of Common Pleas of Philadelphia County ("trial court"), following…
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Supreme Court: Statute Providing (1) Where Suit “May Be Brought” Is Venue Provision & (2) Where Process May Be Served Is Personal Jurisdiction Statute — Daimler’s Demanding General Jurisdiction Test Reaffirmed

BNSF Rwy. v Tyrell, 2017 U.S. LEXIS 3395 (U.S. May 30, 2017): The two cases we decide today arise under the Federal Employers' Liability Act (FELA), 35 Stat. 65, as amended, 45 U. S. C. §51 et seq., which makes railroads liable in money damages to their employees for on-the-job injuries. Both sui ...
BNSF Rwy. v Tyrell, 2017 U.S. LEXIS 3395 (U.S. May 30, 2017): The two cases we decide today arise under the Federal Employers' Liability Act (FELA), 35 Stat. 65, as amended, 45 U. S. C. §51 et seq.,…
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Rule 37 Sanctions: Default Judgment Requires Willful or Bad Faith Disobedience of Discovery Order — Rule 56(d) Request for Additional Discovery to Defend Summary Judgment Requires Motion; Request in Brief Insufficient

Tobinick v. Novella, 2017 U.S. App. LEXIS 2637 (11th Cir. Feb. 15, 2017): Appellants Edward Lewis Tobinick, MD ("INR CA"), INR PLLC ("INR FL"), and M.D. Edward Tobinick ("Dr. Tobinick") (collectively, the "Tobinick Appellants") appeal the district court's orders striking INR CA's ...
Tobinick v. Novella, 2017 U.S. App. LEXIS 2637 (11th Cir. Feb. 15, 2017): Appellants Edward Lewis Tobinick, MD ("INR CA"), INR PLLC ("INR FL"), and M.D. Edward Tobinick ("Dr. Tobinick") (collectively, the "Tobinick Appellants") appeal the district court's orders striking …
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YouTube Admissibility — Video of Defendant Using Gang Hand Signals, Stating Name of His Gang, and Uttering Same Words Allegedly Used at Time of Shooting Relevant to Identification and Motive, Not Cumulative or Unduly Prejudicial

Ross v Santoro, 2017 U.S. Dist. LEXIS 74564 (C.D. Cal. Mar. 31, 2017), adopted, 2017 U.S. Dist. LEXIS 74548 (C.D. Cal. May 15, 2017): REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE Background1 1   The following summary is taken from the opi ...
Ross v Santoro, 2017 U.S. Dist. LEXIS 74564 (C.D. Cal. Mar. 31, 2017), adopted, 2017 U.S. Dist. LEXIS 74548 (C.D. Cal. May 15, 2017): REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE Background1 1   The following summary is taken from the…
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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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