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

(1) Judicial Estoppel — Third Circuit Factors — Bad Faith Required; (2) To Prove Bad Faith, Must Show (i) Culpable Behavior (ii) That Assaults The Dignity Or Authority Of The Court; (3) Earlier Inconsistent Position Must Have Been Accepted by the Court Because, Unlike Equitable Estoppel, Judicial Estoppel Focuses on the Court, Not the Opposing Party (Rare Exception to Success Requirement in Bankruptcy Context); (4) Generally, Defendants Have Flexibility in Asserting Positions in Early Stages of Litigation; (5) Judicial Estoppel (Like Inherent Power Sanctions)Appropriate Only If Sanctions Rules And Statutes Inadequate; (6) Good Quote: “The District Court Sought to Force a Square Peg into a Round Hole”

Pace-O-Matic, Inc. v. Eckert, Seamans Cherin & Mellott, LLC, 2023 U.S. App. LEXIS 30086 (3d Cir. Nov. 13, 2023) (unpublished): OPINION** Eckert Sea ...
Pace-O-Matic, Inc. v. Eckert, Seamans Cherin & Mellott, LLC, 2023 U.S. App. LEXIS 30086 (3d Cir. Nov. 13, 2023) (unpublished): OPINION** Eckert Seamans Cherin & Mellott, LLC (“Eckert”), Hawke McKeon & Sniscak, LLP (“HMS”), and Greenwood Gaming and Entertainment, …
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Attorney-Client Privilege and Appealability: (1) Viability of Perlman Doctrine (Allowing Non-Party to Appeal Discovery Order) Is Unclear After Mohawk, But Party-Sought Review of Privilege Ruling Is Clearly Not Permitted; (2) Opinion Work Product Enjoys Nearly Absolute Immunity But Is Subject to Crime-Fraud Exception; (3) Crime Fraud Factors (4th Cir.): (i) Client Was Engaged In Or Planning Crime When Seeking Counsel, and (ii) The Privileged Materials Bear A Close Relationship to The Scheme; (4) Burden of Proof Less Than Preponderance — Simply Must Subject Opposing Party to Risk of Non-Persuasion If Unrebutted; (5) Client Waives Privilege By Testifying for Lawyer in Bar Proceedings; (6) Once Case Settled, Client’s Interest in Work Product Protection Is Not A Compelling Reason to Deny Discovery; (7) Good Quote: “Certainly, A District Court Does Not Clearly Err When Relying On Sworn Statements Over Negotiation-Driven Puffery”

Under Seal 1 v. United States (In re Subpoenas.), 2023 U.S. App. LEXIS 31137 (4th Cir. Nov. 22, 2023): Opinion Appellant John Doe is a medical malpractice attorney. While representing a client, Jane Roe, he engaged in settle ...
Under Seal 1 v. United States (In re Subpoenas.), 2023 U.S. App. LEXIS 31137 (4th Cir. Nov. 22, 2023): Opinion Appellant John Doe is a medical malpractice attorney. While representing a client, Jane Roe, he engaged in settlement negotiations with…
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Legislative Privilege Waived by State House Speaker and Senate Majority Leader When They Intervened in Case Challenging Voting Laws And Putting Their Movtives At Issue

Petersen v. United States Dist. Ct. for the Dist. of Ariz. (In re Toma), 2023 U.S. App. LEXIS 31250 (9th Cir. Nov. 24, 2023): MEMORANDUM* Petitioners Ben Toma and Warren Petersen (collectively, ...
Petersen v. United States Dist. Ct. for the Dist. of Ariz. (In re Toma), 2023 U.S. App. LEXIS 31250 (9th Cir. Nov. 24, 2023): MEMORANDUM* Petitioners Ben Toma and Warren Petersen (collectively, Petitioners) intervened as defendants in an action…
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Newly Amended Federal Rule of Evidence 702 (effective Dec. 1, 2023) – Marked Up to Show Changes – With Advisory Committee Note

 Rule 702.        Testimony by Expert Witnesses              A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that: ...
 Rule 702.        Testimony by Expert Witnesses              A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it …
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Section 1927 Sanctions: (1) No Bad Faith Required—Intentionality or Knowing Disregard Suffice (Sixth Circuit); (2) Filing Complaint Collaterally Attacking Prior Appellate Decision Unreasonably and Vexatiously Multiplied the Proceedings; (3) Lump Sum Award of $5,000 under § 1927 Affirmed

Jones v. Hamilton Cnty., 2023 U.S. App. LEXIS 29975 (6th Cir. Nov. 8, 2023) (unpublished): PER CURIAM. Lucinda Jones, an attorney proceeding pro se, appeals the district court's judgment that dismissed her amended ...
Jones v. Hamilton Cnty., 2023 U.S. App. LEXIS 29975 (6th Cir. Nov. 8, 2023) (unpublished): PER CURIAM. Lucinda Jones, an attorney proceeding pro se, appeals the district court’s judgment that dismissed her amended complaint against Circuit Judge David W. McKeague,…
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(1) Section 1927 Sanctions Precluded by Denial of Summary Judgment; (2) Filing of Complaint Found Meritless on Appeal Not Automatically Sanctionable under § 1927 (Sixth Circuit); (3) Post-Judgment Rule 11 Motion Fails for Failure to Provide 21-Day Safe Harbor

CAN IV Packard Square, LLC v. Schubiner, 2023 U.S. App. LEXIS 30292 (6th Cir. Nov. 14, 2023) (unpublished): ORDER Craig Schubiner, a pro se New York resident, appeals the district court's order denyin ...
CAN IV Packard Square, LLC v. Schubiner, 2023 U.S. App. LEXIS 30292 (6th Cir. Nov. 14, 2023) (unpublished): ORDER Craig Schubiner, a pro se New York resident, appeals the district court’s order denying his post-judgment motion for sanctions against Can…
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Inherent Power Sanctions: (1) Bad Faith in Manufacturing Personal Injuries Supposedly Caused by Accident—By Lying to Doctors, Court, Opponent And Plaintiff’s Own Counsel—Warranted Dismissal of All Non-Economic Damages Claims; (2) Proper under Goodyear v. Haeger to Award All Attorney’s Fees Incurred in Defending Action Initiated in Bad Faith; (3) Tenth Circuit Factors Governing Dismissal for Discovery Misconduct; (4) “The Lodestar Calculation Produces a Presumptively Reasonable Fee” (Good Quote); (5) Furnishing Business Records Certification Just Prior to Trial Violates Fed. R. Evid. 902(11) Requirement That Opponent Be Given “A Fair Opportunity to Challenge” The Certification and Record

Stetson v. Edmonds, 2023 U.S. App. LEXIS 30361 (10th Cir. Nov. 15, 2023) When a party to litigation seeks to intentionally deceive the court and its adversary, a district court may issue reasonable sanctions and re ...
Stetson v. Edmonds, 2023 U.S. App. LEXIS 30361 (10th Cir. Nov. 15, 2023) When a party to litigation seeks to intentionally deceive the court and its adversary, a district court may issue reasonable sanctions and require the deceitful party to…
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Experts: “Post Hoc, Ergo Propter Hoc Is Neither A Rule Of Legal Causation,, Nor Typically A Sufficient Methodological Basis For An Expert Opinion On Causation” (Good Quote) – Medical Testimony on Diagnosis vs. Etiology (Cause of Symptoms vs. Cause of Disorder)

Finley v. Mora, 2023 U.S. App. LEXIS 30407 (6th Cir. Nov. 14, 2023): While attempting to park his tractor-trailer at a rest stop, Manuel Mora collided with Jake Finley's already-parked tractor-trailer. Finley sued Mora and Nina Transport, Inc.,
Finley v. Mora, 2023 U.S. App. LEXIS 30407 (6th Cir. Nov. 14, 2023): While attempting to park his tractor-trailer at a rest stop, Manuel Mora collided with Jake Finley’s already-parked tractor-trailer. Finley sued Mora and Nina Transport, Inc.,1 Mora’s…
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(1) Experts: 701 vs. 702 Testimony — Business Owner/Officer May Offer Lay Opinion of Value or Future Profits Based on Particularized Knowledge Derived from Position And Straightforward, Common Sense Calculations — (2) CFO’s Testimony Based on Previous Professional Experience Creating Budget Forecasts and Utilizing Complex, Sophisticated Formulas Improperly Admitted Under 701, Constituted 702 Testimony — (3) Contract Interpretation: A Broad Heading Cannot Override the Specific Language of a Particular Clause — (4) If Appellant Does Not Challenge Trial Court’s Alternate Ground for Its Ruling, Appellate Court May Affirm

Lambland, Inc. v. Heartland Biogas, LLC, 2023 U.S. App. LEXIS 25502 (10th Cir. Sept. 27, 2023) (unpublished) ORDER AND JUDGMENT* At its most b ...
Lambland, Inc. v. Heartland Biogas, LLC, 2023 U.S. App. LEXIS 25502 (10th Cir. Sept. 27, 2023) (unpublished) ORDER AND JUDGMENT* At its most basic level, this case involves a breach of contract and the resulting damages. But to determine…
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Contract Formation Online — When Is A Customer Bound by Unread/Unclicked-On Terms And Conditions? — 2-Part Test: Inquiry Notice & Unambiguous Manifestation of Consent — What Is A “Reasonably Prudent” Internet User? — When Is That Person on Inquiry Notice? — What Constitutes An Unambiguous Manifestation of Consent?

Edmundson v. Klarna, Inc., 2023 U.S. App. LEXIS 29285 (2d Cir. Nov. 3, 2023): Defendant-appellant Klarna, Inc. ("Klarna") provides a "buy now, pay later" service that allows shoppers to buy a product and pay for it in four equal installments over t ...
Edmundson v. Klarna, Inc., 2023 U.S. App. LEXIS 29285 (2d Cir. Nov. 3, 2023): Defendant-appellant Klarna, Inc. (“Klarna”) provides a “buy now, pay later” service that allows shoppers to buy a product and pay for it in four equal installments…
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Recent Posts

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

Rule 11 Sanctions — Even If Court Invites Sanctions Motion, Safe Harbor Must Be Complied With — If Safe Harbor Is Not Provided, Court May Not Proceed Sua Sponte without Affording the Due Process Required by Rule 11(c)(3): Issuing a Show Cause Order Why Conduct Specifically Described In The Order Has Not Violated — The Show Cause Order Need Not Be A Separate Order — Appellee’s Request That Appellate Court Consider Alternate Ground of Inherent Power Sanctions Fails Due to Lack of Notice That Inherent Power Sanctions, and Therefore Bad Faith, Were At Issue

FRAP 38 Sanctions: An Appeal That Has “Some Arguable Basis” Either in Law or Fact—A Low Bar—Is Not Frivolous — “Simply Quibbl[ing]”/Raising Factual Disputes Insufficient to Obtain Sanctions — Sixth Circuit Usually Imposes FRAP 38 Sanctions Only If An Improper Purpose Underlies the Appeal — Simply Seeking Sanctions Below (Unsuccessfully) And On Appeal Is Not Per Se Violative of § 1927

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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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