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

Expert (702) vs. Lay Opinion (701) Testimony: “The Line Between Expert And Lay Testimony Is Not Always Sharp” (Good Quote) — Owner of New Business Not Allowed to Offer Lay Opinion As to Lost Future Profits Where Basis Extended Beyond Knowledge He Possessed Due to His Position in the Company (His Own Perception) And Beyond The Reasoning Process of an Average Person in Everyday Life — Sandbagging with Late Opinion: “The Proper Function Of Rebuttal Evidence Is To Contradict, Impeach Or Defuse The Impact Of The Evidence Offered By An Adverse Party” (Good Quote) — Where Opinion Being Rebutted Is Not Admitted, There Is Nothing to Rebut —“ The Duty To Supplement Cannot Be Transformed Into A Right To Ambush Just Before Trial” (Good Quote)

Chi. Joe's Tea Room, LLC v. Vill. of Broadview, 2024 U.S. App. LEXIS 4357, 94 F.4th 588 (7th Cir. 2024 ...
Chi. Joe’s Tea Room, LLC v. Vill. of Broadview, 2024 U.S. App. LEXIS 4357, 94 F.4th 588 (7th Cir. 2024): This appeal presents a host of issues arising from an effort to prove lost profits for a business that…
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Right to File Motions, Pleadings, Appeals: Absent Extraordinary Circumstances, Like a History of Litigation Abuse Or Failure to Comply with Sanctions, a Court Has No Power to Prevent a Party from Filing Pleadings, Motions or Appeals — Construing Pre-Motion Letters As Motions OK for Non-Dispositive Motions Or Denial of Dispositive Motions — It Is Also OK If Dispositive Motion Is Predominantly Legal And Complaint Has Substantial Deficiencies — Granting Summary Judgment on Reconsideration of Prior Denial Based on Premotion Letters Only Reversed for Lack of Due Process

Kowalchuck v. Metro. Transp. Auth., 2024 U.S. App. LEXIS 4533 94 F.4th 210 (2d Cir. Feb. 27, 2024): In this case, plaintiff-appellant John Kowalchuck sued his former employer, defendant-appellee Metropolitan Transportation Authority (the “MTA”), under the Federal Employers’ Liability Act (“FELA”),
Kowalchuck v. Metro. Transp. Auth., 2024 U.S. App. LEXIS 4533 94 F.4th 210 (2d Cir. Feb. 27, 2024): In this case, plaintiff-appellant John Kowalchuck sued his former employer, defendant-appellee Metropolitan Transportation Authority (the “MTA”), under the Federal Employers’ Liability Act …
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Appeals: Notice of Appeal (“NOA”) Designating Judgment AND Any Judgment from Pending Post-Trial Motion Becomes Effective When Post-Trial Motion (e.g., Sanctions, Reconsideration) Is Decided BUT Is Effective Only As to the Designated Judgment — To Confer Appellate Jurisdiction Over Decision on Pending Motion. New Or Amended NOA Appealing from That Decision Is Necessary — Sometimes Other Documents Can Confer Appellate Jurisdiction (e.g., Docketing Statement) If Intent to Appeal Is Clear

Wall Guy, Inc. v. FDIC, 2024 U.S. App. LEXIS 6395 (4th Cir. Mar. 18, 2024): *1 ...
Wall Guy, Inc. v. FDIC, 2024 U.S. App. LEXIS 6395 (4th Cir. Mar. 18, 2024): *1 This case originates from a lending relationship between Plaintiffs—Jeffrey Frye and his companies The Wall Guy, Inc., and JR Contractors—and First State Bank (“the…
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§ 1927 and FRAP 46(c) Sanctions for Misrepresenting to Court of Appeals When Party Learned of the “New Evidence” Argued under Fed. R. Civ. P. 60(b)(2) — When a Lawyer Raises a Frivolous Argument with the District Court, and That Issue Is Appealed and Re-Argued to the Court of Appeals by Someone Else, The Original Lawyer Can Be Sanctioned under § 1927 For Multiplying Proceedings — Recklessly Raising Frivolous Argument Satisfies Bad Faith Requirement for § 1927 in 9th Circuit — § 1927 Does Not Apply to Law Firms — § 1927 Applies to All Responsible Lawyers, Not Just Those Appearing of Record Or Licensed to Practice Before Sanctioning Court — Reviewing and Approving Filings by General Counsel or Supervising Attorney Suffices — FRAP 46(c): Violating Rules of Professional Ethics = “Conduct Unbecoming of the Court’s Bar” Violative of FRAP 46(c) — Financial Sanctions and Notifications to State Bars and District Courts

Caputo ex rel. United States of Am. v. Tungsten Heavy Powder, Inc., 2024 U.S. App. LEXIS 6126 (9th Cir ...
Caputo ex rel. United States of Am. v. Tungsten Heavy Powder, Inc., 2024 U.S. App. LEXIS 6126 (9th Cir. Mar. 14, 2024): ORDER Petitioners Global Tungsten & Powders Corp. (GTP) and Gregory Caputo have filed a motion for sanctions against …
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§ 1927 Sanctions: Even If Court Lacks Subject Matter Jurisdiction Over The Merits of a Case, It Retains Jurisdiction to Impose Sanctions — Forfeiture (Failure to Assert Right) vs. Waiver (Intentional Relinquishment of Known Right) — Two Judge Concurrence Finds Strong Textual Argument There Is No Statutory Basis for the Existence of the Virgin Islands Bankruptcy Court

Prosser v Gerber (In re Prosser), 2024 WL 1230148 (3d Cir. Mar. 22, 2024) (unpublished):   Sanctions:  Even If Court Lacks Subject Matter Jurisdiction, It Retains Jurisdiction to Impose Sanctions — Forfeiture (Failure to Assert Right) vs. Waiver (Intentional Relinquishment of Known Right) — Two Judge Concurrence Finds Strong Textual Argument There Is No ...
Prosser v Gerber (In re Prosser), 2024 WL 1230148 (3d Cir. Mar. 22, 2024) (unpublished):   Sanctions:  Even If Court Lacks Subject Matter Jurisdiction, It Retains Jurisdiction to Impose Sanctions — Forfeiture (Failure to Assert Right) vs. Waiver (Intentional Relinquishment …
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FRAP 38 Sanctions: Sixth Circuit Requires That A Party Seeking FRAP 38 Sanctions Must Show Both That An Appeal Lacks Merit And That The Appellant Took The Appeal For An Improper Purpose

Lea v. U.S. Dep't of Agric., 2024 U.S. App. LEXIS 5012 (6th Cir. Feb. 28, 2024) (unpublished): Corey Lea has filed over a dozen lawsuits challenging a bank's foreclosure of his Kentucky farmland. Courts have uniformly dismissed these suits. ...
Lea v. U.S. Dep’t of Agric., 2024 U.S. App. LEXIS 5012 (6th Cir. Feb. 28, 2024) (unpublished): Corey Lea has filed over a dozen lawsuits challenging a bank’s foreclosure of his Kentucky farmland. Courts have uniformly dismissed these suits. But …
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(1) Agreements to Agree — Good Quote: “A Non-Binding Agreement To Negotiate Is Not A Binding Agreement To Close A Deal. When Negotiating Parties Cannot Agree And A Deal Falls Apart, They May Be Disappointed, But There Is No Breach Of Contract.” — (2) Damages for Breach of Covenant Not to Sue = Attorney’s Fees and Costs in Defending — (3) Does the Duty of Good Faith and Fair Dealing Apply to Letters of Intent? Undecided

White Winston Select Asset Funds, LLC v. Good Times Rests., Inc., 2024 U.S. App. LEXIS 4942 (3d Cir. Mar. 1, 2024) (unpublished): OPINION* RESTREPO, Circuit Judge A non- ...
White Winston Select Asset Funds, LLC v. Good Times Rests., Inc., 2024 U.S. App. LEXIS 4942 (3d Cir. Mar. 1, 2024) (unpublished): OPINION* RESTREPO, Circuit Judge A non-binding agreement to negotiate is not a binding agreement to close a …
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Civil Contempt —Purposes: Compliance or Compensation — Clear and Convincing Evidence — Factors (6th Cir.): Court Order, Respondent’s Knowledge, Violation — Respondent’s Burden: Prove Present Inability to Comply — Spoliation of Tangible Evidence; Burden of Proof: Elements (6th Cir.) — Types of Sanctions — Severity Corresponds to Fault

NLRB v. Bannum, Inc., 2024 U.S. App. LEXIS 4225 (6th Cir. Feb. 23, 2024)  [**1]  PER CURIAM. In July 2023, we granted the National Labor Relations Board's petition for a protective restraining order prohibiting Bannum, Inc. and B ...
NLRB v. Bannum, Inc., 2024 U.S. App. LEXIS 4225 (6th Cir. Feb. 23, 2024)  [**1]  PER CURIAM. In July 2023, we granted the National Labor Relations Board’s petition for a protective restraining order prohibiting Bannum, Inc. and Bannum Place of…
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Rule 37(c)(1) Sanctions: (1) Factors for Determining Whether Nondisclosure in Violation of Rule 26(a)(1) Was “Substantially Justified” or “Harmless” (Sixth Circuit Factors); (2) Nondisclosure in Violation of Rule 26(a) Causes No Surprise Where Evidence Consists of “Basic Math” Calculation Applied to Data in Documents in Movant’s Possession

House v. Player's Dugout, Inc., 2024 U.S. App. LEXIS 3181, 2024 WL 495998 (6th Cir. Feb. 8, 202 ...
House v. Player’s Dugout, Inc., 2024 U.S. App. LEXIS 3181, 2024 WL 495998 (6th Cir. Feb. 8, 2024): *1 This appeal arises from a jury verdict apportioning liability and awarding damages to both parties. Dr. Thomas House and the…
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Recent Posts

Experts: “Normally, Courts Are Loath to Outright Dismiss An Expert” (Good Quote) — Experts Are Unhelpful If They Misstate the Law [Note Premise That Testimony on Law Not Precluded Outright] — Rule 37 Sanctions Unwarranted for Unjustifiable Failure to Produce Relevant Document Already in Requester’s Possession

FRAP 38 Sanctions: (1) Pressing Objectively Frivolous Arguments, Multiple Misstatements at Oral Argument and Failure to Address What District Judge Said Warrant Award against Appellants’ Counsel (Only) — (2) “General Award” of $5,000 Warranted Where Appellee Failed to Sufficiently Document Its Fees and Expenses [Goodyear v. Haegar Issue]]

RICO: Capital Call Investment Process Increasing Equity of Those Responding to Call at Expense of Those Not Responding ≠ Collection of An Unlawful Debt

RICO [And Constitutional] Standing: Concrete Injury Requirement Not Satisfied by Alleged Intangible Injuries of Intrusion Upon Seclusion, Confusion And Emotional Distress, Public Disclosure of Private Facts, Deterred Speech On Nondefamatory Matters, Violation Of First Amendment Rights, And Compulsion

Rule 37(b) Sanctions: Striking of Answer, Default Judgment, Civil Contempt and Piercing Corporate Veil for Deliberate Disregard of Multiple Orders to Produce — Finding of Deliberate Disregard of Court Order Is Factual, Triggering Clear Error Review — Discretion Narrows When Default Sanction Involved — Fourth Circuit Factors for Rule 37 Default Sanction Are Different Than Those for Inherent Power Dismissal Sanction — Continued Defiance of Court Orders And Millions in Unpaid Judgments And Tax Liens Render Lesser Sanctions Futile

RICO: No Causation for Company Harmed by Governmental Customers Shunning It After Employee Publishes Book Admitting He Bribed Governmental Officials — Harm Too Indirect, Not from Bribery (Predicate Act) But from Customers’ Decisions to Shun and Publication of Book (Both Lawful) — Customers Injured by Bribery of Their Officials Are More Direct Plaintiffs

FRAP 38 Sanctions for Frivolous Opposition to Arbitration

Extrinsic Fraud Exception to Rooker-Feldman — Where Defendants’ Perjury, False Evidence, Flawed Legal Arguments Prevented Plaintiffs from Presenting Their Claim in State Court

Federal Jurisdiction: Party Can Waive Subject Matter Jurisdiction — While Federal Courts Must Ensure They Do Not Lack Subject Matter Jurisdiction, There Is No Duty to Find and Exercise It

“RICO Is a Judge’s Nightmare” — “The Requisite RICO Pleading Standards Are Far From Explicit, And The RICO Jurisprudence Offers Courts (And Plaintiffs) Little Guidance” (Good Quotes) — Common Elements of § 1962(a), (c) and (d)-Based Claims — Closed-End Continuity: Duration > 1 Year = Substantial Period of Time — Continuity: Courts Skeptical If Number of Victims and Schemes Is Limited — Untargeted Persons Who Suffer Derivative Injury Do Not Add to the Number of Victims Considered for Continuity Purposes — Open Ended Continuity Can Be Established by Showing Defendant Commits Predicate Acts As “Regular Way of Doing Business” — Citing the Existence of Other Lawsuits Alleging Similar Predicates ≠ Pleading Facts Demonstrating Defendant’s Commission of Similar Predicates Against Others

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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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