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

Video Evidence Should Be Reviewed by the Court In Camera before It Is Displayed to Jury — Fact That Attorney Referred Plaintiff to Physician Is Relevant, Admissible — Fact Plaintiff’s Counsel Advertises Excluded

Ernestine v. Hi-Vac LLC, 2016 U.S. Dist. LEXIS 141290 (S.D. Miss. Oct. 12, 2016): This matter is before the Court on the Motion in Limine [143] filed by Plaintiff Lionel Ernestine ("Plaintiff"), and the Motion in Limine [147] filed by Defendant [*2]  Hi-Vac LLC ("Defendant"). Aft ...
Ernestine v. Hi-Vac LLC, 2016 U.S. Dist. LEXIS 141290 (S.D. Miss. Oct. 12, 2016): This matter is before the Court on the Motion in Limine [143] filed by Plaintiff Lionel Ernestine ("Plaintiff"), and the Motion in Limine [147] filed by…
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Arbitration — Does the FAA Authorize Arbitrators to Issue Deposition Subpoenas Duces Tecum or Must a Hearing Be Held? — Circuit Split

McTammany v. Foundation Capital Partners LP, 2015 U.S. Dist. LEXIS 183559 (C.D. Cal. May 1, 2015): PROCEEDINGS (IN CHAMBERS): ORDER DENYING MOTION TO COMPEL DEPOSITION OF KELLY HOLOWATY [1] Before the Court is Plaintiffs' Motion to Compel Deposition of Kelly Holowaty (Dkt. 1). The Court finds this matter ap ...
McTammany v. Foundation Capital Partners LP, 2015 U.S. Dist. LEXIS 183559 (C.D. Cal. May 1, 2015): PROCEEDINGS (IN CHAMBERS): ORDER DENYING MOTION TO COMPEL DEPOSITION OF KELLY HOLOWATY [1] Before the Court is Plaintiffs' Motion to Compel Deposition of Kelly…
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§ 1927 Sanctions: Once It Is Obvious An Asserted Position Has No Basis, Continuing to Assert It Exposes Counsel to Sanctions — The Court Aims To Resolve This Dispute, Not To Litigate The Same Points Ad Infinitum (Good Quotes)

Valley Forge Ins. Co. v. Hartford Iron & Metal, Inc., 2017 U.S. Dist. LEXIS 1187 (N.D. Ind. Jan. 4, 2017): Hartford Iron doesn't like the way Valley Forge has performed on its contract. After three motions to dismiss, numerous excess parties and numerous excess claims, what remains of Hartford Iron's counterclaim is an alleged ...
Valley Forge Ins. Co. v. Hartford Iron & Metal, Inc., 2017 U.S. Dist. LEXIS 1187 (N.D. Ind. Jan. 4, 2017): Hartford Iron doesn't like the way Valley Forge has performed on its contract. After three motions to dismiss, numerous excess…
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Removal: May a Non-Forum Defendant Remove before Service Is Effected on a Forum Defendant? — Circuit Split — Held, a Forum Defendant May Remove before It Has Been Served Even If There Are No Non-Forum Defendants

Hwang v. Gladden, 2016 U.S. Dist. LEXIS 177479 (M.D. Ala. Dec. 21, 2016): This matter is before the court on plaintiffs' motion to remand (Doc. 9), which is opposed by defendants Brent Gladden and University Real Estate Group, LLC (collectively, "defendants"). This case was initially assigned to the undersigned as presid ...
Hwang v. Gladden, 2016 U.S. Dist. LEXIS 177479 (M.D. Ala. Dec. 21, 2016): This matter is before the court on plaintiffs' motion to remand (Doc. 9), which is opposed by defendants Brent Gladden and University Real Estate Group, LLC (collectively,…
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Wayback Machine: Court Declines to Take Judicial Notice Because of Wayback Machine’s Disclaimer of Warranty of Accuracy — Res Judicata: Prior Judgment Bars More Detailed Allegations of Prejudgment Misconduct, But Not Post-Judgment Incidents

Nassar v. Nassar, 2017 U.S. Dist. LEXIS 456 (M.D. Fla. Jan. 3, 2017): THIS CAUSE is before the Court on (1) Defendant's Motion to Dismiss Amended Complaint and Memorandum in Support (Doc. 63; "Defendant's Motion to Dismiss"), filed on March 30, 2016; (2) Plaintiff's Motion to [sic] Judicial Notic ...
Nassar v. Nassar, 2017 U.S. Dist. LEXIS 456 (M.D. Fla. Jan. 3, 2017): THIS CAUSE is before the Court on (1) Defendant's Motion to Dismiss Amended Complaint and Memorandum in Support (Doc. 63; "Defendant's Motion to Dismiss"), filed on March…
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Sanctions: Rule 37/Inherent Power Dismissal for Bribing Witness — Rule 37 Extends to Hiding Evidence, Lying, Soliciting Lies — 7th Circuit Reverses Clear & Convincing Standard for Dismissal under Rule 37 (Circuit Split) — Gross Negligence May=Fault

Ramirez v. T&H Lemont, Inc., 2016 U.S. App. LEXIS 23404 (7th Cir. Dec. 30, 2016): Upon finding that plaintiff Armando Ramirez had offered a witness money in exchange for his favorable testimony, the district court dismissed Ramirez's suit with prejudice. Ramirez appeals, contending that the district court erred in ...
Ramirez v. T&H Lemont, Inc., 2016 U.S. App. LEXIS 23404 (7th Cir. Dec. 30, 2016): Upon finding that plaintiff Armando Ramirez had offered a witness money in exchange for his favorable testimony, the district court dismissed Ramirez's suit with prejudice. …
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RICO: Res Judicata Based on State Court Mandamus Action — Dismissal without Prejudice of Some Claims Doesn’t Bar Appeal If They’re Time-Barred — Order Stipulated As to Form Concedes Only That Order Embodies Ruling — Undeveloped Arguments Waived

Scott v. Reif, 2016 U.S. App. LEXIS 16311 (6th Cir. Sept. 2, 2016): James and Helen Scott, owners of Best Way Auto Sales (Best Way), brought this action against a number of parties, alleging violations of 42 U.S.C. § 1983, the Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. § 1962, and Michigan law. Defendants C ...
Scott v. Reif, 2016 U.S. App. LEXIS 16311 (6th Cir. Sept. 2, 2016): James and Helen Scott, owners of Best Way Auto Sales (Best Way), brought this action against a number of parties, alleging violations of 42 U.S.C. § 1983,…
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Removal: Does Filing a Voluntary Cross Claim in State Court Waive Right to Remove? — Circuit Split — Letter from Plaintiff Forwarding Unsigned, Unfiled Stip Dismissing Only Non-Diverse Defendant Triggers 30-Day Removal Period

Boggs v. Harris, 2016 U.S. Dist. LEXIS 177154 (W.D. Pa. Dec. 22, 2016): I. Introduction Pending before the court is a motion to remand filed by plaintiffs Roy Boggs and Annette Boggs ("plaintiffs"). (ECF No. 5.) On June 28, 2016, Defendants Darwin Harris ("Harris") and Gateway Tours, Inc. (& ...
Boggs v. Harris, 2016 U.S. Dist. LEXIS 177154 (W.D. Pa. Dec. 22, 2016): I. Introduction Pending before the court is a motion to remand filed by plaintiffs Roy Boggs and Annette Boggs ("plaintiffs"). (ECF No. 5.) On June 28, 2016,…
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Rule 11 Sanctions—Even If Making Argument for Change in Law Is Futile Because Same Judge Has Rejected It in the Past, You Must Do So—Not Enough to Say You Plan to Appeal the Issue—No Duty to Anticipate/Respond to Affirmative Defense in Complaint

Foreman v. Wadsworth, 2016 U.S. App. LEXIS 22598 (7th Cir. Dec. 20, 2016): Anthony Foreman, who used to own a restaurant in Rockford, Illinois, brought this suit under 42 U.S.C. § 1983 and Illinois tort law. He alleged that a state prosecutor and four Rockford police officers conspired to push him out of business by bringing ...
Foreman v. Wadsworth, 2016 U.S. App. LEXIS 22598 (7th Cir. Dec. 20, 2016): Anthony Foreman, who used to own a restaurant in Rockford, Illinois, brought this suit under 42 U.S.C. § 1983 and Illinois tort law. He alleged that a …
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Internet Evidence — Delaware Sup. Ct. Takes Judicial Notice Internet Searches Can Generate Reliable Info for Pleading Purposes (“As with Any Source of Information…The Internet Should Be Used with Care”) (Good Quote) — Derivative Pleading Rules

Sandys v. Pincus, 2016 Del. LEXIS 627 (Del. Sup. Ct. Dec. 5, 2016): I. This appeal in a derivative suit brought by a stockholder of Zynga, Inc. turns on whether the Court of Chancery correctly found that a majority of the Zynga board could impartially consider a demand and thus correctly dismissed the c ...
Sandys v. Pincus, 2016 Del. LEXIS 627 (Del. Sup. Ct. Dec. 5, 2016): I. This appeal in a derivative suit brought by a stockholder of Zynga, Inc. turns on whether the Court of Chancery correctly found that a majority …
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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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