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

Disqualification: Lawyers Who Initially Represented A Group of Plaintiffs But Ended Up Representing Only 2 Of Them Because the Group Couldn’t Agree on a Remedy Were Not Subject to Disqualification by Former Clients Because \ Disagreement as to Remedy Was Not Materially Adverse to the Former Clients

Whitest v. Crisp Cnty. Sch. Dist., 2023 U.S. App. LEXIS 32934 (11th Cir. Dec. 13, 2023) (unpublished): PER CURIAM: [*2]  On June 14, 2017, Crandall Postell and numerous co-plaintiffs, represented by Bryan L. Sells and ACLU ...
Whitest v. Crisp Cnty. Sch. Dist., 2023 U.S. App. LEXIS 32934 (11th Cir. Dec. 13, 2023) (unpublished): PER CURIAM: [*2]  On June 14, 2017, Crandall Postell and numerous co-plaintiffs, represented by Bryan L. Sells and ACLU-affiliated attorneys, filed a lawsuit…
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Arbitration: Party That Frustrates Arbitration by Failing to Comply with Designated Arbitral Forum’s Policies Is Subject to Suit in Court

Bedgood v. Wyndham Vacation Resorts, Inc., 2023 U.S. App. LEXIS 33600 (11th Cir. Dec. 19, 2023): This is an odd case. The lead defendant here, Wyndham Vacation Resorts—which, to distinguish it from other Wyndham-related entities, we'll ju ...
Bedgood v. Wyndham Vacation Resorts, Inc., 2023 U.S. App. LEXIS 33600 (11th Cir. Dec. 19, 2023): This is an odd case. The lead defendant here, Wyndham Vacation Resorts—which, to distinguish it from other Wyndham-related entities, we’ll just call “Resorts”—entered into …
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(1) Rule 37 Sanctions: Court’s Discretion Narrows As the Severity of the Sanction Increases; (2) Party Does Not Waive Personal Jurisdiction Defense by Moving to Set Aside Default

Hawkeye Gold, LLC v. China Nat'l Materials Indus. Imp. & Exp. Corp., 2023 U.S. App. LEXIS 33531 (8th Cir. Dec. 19, 2023) Appellant Hawkeye Gold, LLC, an Iowa-based seller of livestock feed, brought this action ...
Hawkeye Gold, LLC v. China Nat’l Materials Indus. Imp. & Exp. Corp., 2023 U.S. App. LEXIS 33531 (8th Cir. Dec. 19, 2023) Appellant Hawkeye Gold, LLC, an Iowa-based seller of livestock feed, brought this action against China National Materials Industry…
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Good Cause Requirement of Fed. R. Civ. P. 16(b) to Modify Scheduling Order Applies to Deadlines in District Judge’s Individual Rules and Practices — Here, Untimely Challenge to Expert Testimony

Tr. for the Liquidation of Bernard L. Madoff Inv. Sec. LLC v. Rar Entrepreneurial Fund, Ltd.. (In re Bernard L. Madoff Inv. Sec. LLC), 2023 U.S. App. LEXIS 33544 (2d Cir. Dec. 19, 2023): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGE ...
Tr. for the Liquidation of Bernard L. Madoff Inv. Sec. LLC v. Rar Entrepreneurial Fund, Ltd.. (In re Bernard L. Madoff Inv. Sec. LLC), 2023 U.S. App. LEXIS 33544 (2d Cir. Dec. 19, 2023): UPON DUE CONSIDERATION, IT IS HEREBY …
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Inherent Power Sanctions/Due Process/Vexatious Litigant Injunction: (1) Pro Se Status Relevant to Considering Whether Due Process Issue Waived Due to Failure to Assert; (2) Party Has a Right to Notice That a Vexatious Litigant Injunction Is Under Consideration and an Opportunity to Be Heard; (3) Prior Warnings of Frivolousness from Other Courts Does Not Afford Notice That Party Is at Risk of Sanction in Present Court (i.e., Distinguishing Notice of Frivolousness from Due Process Notice of Risk of Sanction)

Allen v. United States, 2023 U.S. App. LEXIS 33380 (Fed. Cir. Dec. 28, 2023)   Per Curiam. *1 Derrick Allen filed a pro se complaint in the Court of Federal Claims alleging that the Clerk’s Office in the ...
Allen v. United States, 2023 U.S. App. LEXIS 33380 (Fed. Cir. Dec. 28, 2023)   Per Curiam. *1 Derrick Allen filed a pro se complaint in the Court of Federal Claims alleging that the Clerk’s Office in the United States District…
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(1) Party May Simultaneously Claim Privilege And Dispute Document’s Authenticity; (2) No Per Se Waiver Rule When Privilege Log Is Not Produced; (3) Fact Opponent Actually Possesses Challenged Documents Significantly Affects Log Analysis; (4) Inherent Power Sanctions: Ninth Circuit Factors

Mayorga v. Ronaldo, 2023 U.S. App. LEXIS 30921 (9th Cir. Nov. 21, 2023) (unpublished):  MEMORANDUM* In 2010, Defendant-Appellee Cristiano Ronaldo ("Ronaldo") ...
Mayorga v. Ronaldo, 2023 U.S. App. LEXIS 30921 (9th Cir. Nov. 21, 2023) (unpublished):  MEMORANDUM* In 2010, Defendant-Appellee Cristiano Ronaldo (“Ronaldo”) settled a sexual assault claim made against him by Plaintiff-Appellant Kathryn Mayorga (“Mayorga”). The matter lay dormant until…
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Appeals: “When A District Court Lists Several Reasons For Taking A Certain Action, And One Of The Reasons Is Flawed, The District Court’s Decision Should Still Be Upheld If Other Reasons Support The Ruling” (Good Quote)

Baker v. Meiling, 2023 U.S. App. LEXIS 33042 (9th Cir. Dec. 14, 2023) (unpublished):   MEMORANDUM* Appellants—a [*3]  proposed ...
Baker v. Meiling, 2023 U.S. App. LEXIS 33042 (9th Cir. Dec. 14, 2023) (unpublished):   MEMORANDUM* Appellants—a [*3]  proposed class of elderly investors in a metal-coatings company—appeal from the district court’s order awarding attorneys’ fees to Appellees and sanctioning…
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(1) Diversity Jurisdiction: Allegations of Residency May Be Corrected by Letter to Establish Citizenship under 28 U.S.C. § 1653; (2) Rule 37(c)(1) Sanctions Excluding Expert Report — Fifth Circuit Factors; (3) Rule of Orderliness: One Panel May Not Overturn Another’s Decision Absent Intervening Change in Law; (4) Modest Prejudice from Late Expert Disclosure Sufficient to Sustain Exclusion; (5) Defaulting Party’s Refusal to Consent to Adjournment of Expert Deadlines Properly Considered in Exclusion Analysis; (6) Good Quote: “Because Of A Trial Court’s Need To Control Its Docket, A Party’s Violation Of The Court’s Scheduling Order Should Not Routinely Justify A Continuance”

Stewart v. Gruber, 2023 U.S. App. LEXIS 33127 (5th Cir. Dec. 14, 2023) (unpublished) Per Curiam:* Plaintiffs1 a ...
Stewart v. Gruber, 2023 U.S. App. LEXIS 33127 (5th Cir. Dec. 14, 2023) (unpublished) Per Curiam:* Plaintiffs1 appeal from two interrelated district court orders: (1) the exclusion of their expert’s reports and testimony, [*2]  and (2) the grant…
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Rule 37/Contempt/Dismissal Discovery Sanctions: (1) Magistrate Judge Must Refer Contempt Charges to District Court Except When Exercising Consent Jurisdiction; (2) Dismissal Requires Willfulness, Bad Faith or Fault; (3) Dismissal Factors (10th Circuit); (4) Fees And Expenses For Entire Deposition OK Where Party So Obstructed Deposition As To Render It Entirely Useless Because Case Dismissed — District Judge Not Required to Further Apportion Fees and Expenses for Obstructed Part

Xingfei Luo v. Paul Wang, 2023 U.S. App. LEXIS 32882 (10th Cir. Dec. 13, 2023): ORDER AND JUDGMENT*
Xingfei Luo v. Paul Wang, 2023 U.S. App. LEXIS 32882 (10th Cir. Dec. 13, 2023): ORDER AND JUDGMENT* Paul J. Kelly, Jr. Circuit Judge *1 Xingfei Luo brought this action against Paul Wang asserting various defamation-related claims. After a magistrate …
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Rule 11 & The PSLRA: (1) Sanctions Order Is Not Appealable Until The Award Amount of the Award (The Relief) Is Finalized; (2) Issue Abandoned on Appeal by Failing to Provide Supporting Arguments Explaining Error; (3) Rule 11 Sanctions Under PSLRA Reviewed for Abuse of Discretion; (4) PSLRA Requires District Court to Make Findings As to Each Party’s and Each Attorney’s Compliance with Rule 11(b); (5) PSLRA Mandates Presumptive Award of Attorney’s Fees If Complaint Fails to Comply with Rule 11(b); (6) Presumption Rebutted by Proof the Award (a) Would Impose Unreasonable Burden on Plaintiff, (b) Would Be Unjust; (c) If Not Entered, Would Not Impose A Greater Burden on the Aggrieved Party; or (d) The Violation of Rule 11(b) Was De Minimis; (7) Even If Presumption Rebutted, Court Must Award Other Appropriate Sanctions

Meide v. Pulse Evolution Corp., 2023 U.S. App. LEXIS 32938 (11th Cir. Dec. 13, 2023): PER CURIAM: Plaintiff Scott Meide, proceeding pro se, appeals the district court's orders imposing sanctions under the
Meide v. Pulse Evolution Corp., 2023 U.S. App. LEXIS 32938 (11th Cir. Dec. 13, 2023): PER CURIAM: Plaintiff Scott Meide, proceeding pro se, appeals the district court’s orders imposing sanctions under the Private Securities Litigation Reform Act (“PSLRA”), 15 U.S.C. …
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Recent Posts

Rule 41(b): Five Factors to Be Weighed in Deciding Whether Dismissal Is Appropriate (Second Circuit) — Is A Finding of Bad Faith or Fault Required if Dismissal Is Without Prejudice? — Undecided If Truly Without Prejudice But It Is Required If the Without Prejudice Dismissal Will Act as a Dismissal on the Merits (Here, Because of the Statute of Limitations) — Failure To Consider A Lesser Sanction Than Dismissal Is Generally An Abuse Of Discretion

Spoliation Sanctions/Mootness: Stipulation Resolving “All Pending Discovery Disputes,” Which Are Enumerated, Does Not Moot Subsequent Sanctions Motion for ESI Spoliation — Postjudgment Sanctions Order Is Appealable When District Court Has Finally Disposed of Both Liability and Amount

Rule 37 Default Judgment Sanction: (1) Default Judgment Appropriate Only As a Last Resort, When Less Drastic Sanctions Would Not Ensure Compliance with the Court’s Orders — (2) Default Judgment Sanction Requires Willful or Bad Faith Failure to Obey Discovery Order — (3) Fugitive Defendant’s Failure to Appear at Court-Ordered, Remote Deposition Despite Court Warning That Sanctions Could Follow Disobedience Warrants Default Judgment — (4) District Court Afforded Wide Discretion in Interpreting Its Own Orders — (5) Filing a Notice of Appeal from a Non-Appealable Order (Here, a Discovery Order) Does Not Deprive the District Court of Jurisdiction over the Case

RICO and Injunctions: (1) State Court Actions Designed to Perpetuate and Monetize a RICO Violation Are Enjoinable under RICO, Even Though They Are Not Themselves Alleged to Be Predicate Acts [Note: Noerr Pennington Applies in RICO Actions] — (2) Although Civil RICO’s Text and Legislative History Fail to Reveal Any Intent to Override the Provisions of the Federal Arbitration Act, Arbitrations Are Enjoinable Under the “Effective Vindication” Doctrine Where They Operate As a Prospective Waiver of a Party’s Right to Pursue Statutory RICO Remedies — (3) Arbitration Findings May Be Given Collateral Estoppel Effect in a Civil RICO Action — (4) Injunction of Non-Corrupt State Court Litigations That Furthers a RICO Violation Are Enjoinable Under the Anti-Injunction Act’s “Expressly Authorized” Exception — (5) “The Irreparable Harm Requirement Is The Single Most Important Prerequisite For The Issuance Of A Preliminary Injunction” (Good Quote) — (6) When Injunction Is Based on “Serious Questions on the Merits” Rather Than “Likelihood of Success,” Court May Rely on Unverified Pleadings and Attached Exhibits to Assess the Merits, Unless the Opponent Has Raised Substantial Questions (Here, the Opponent Failed to Request an Evidentiary Hearing) — (7) Whether Amended Pleading Moots An Appeal Turns on Whether It Materially Changes the Substantive Basis for the Appeal — (8) Meaning of “In That” (“Used To Introduce A Statement That Explains Or Gives More Specific Information” About A Prior Statement)

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

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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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