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 and Inherent Power Sanctions – While Sanctions Are Reviewed for Abuse of Discretion, District Court’s Invocation of Its Inherent Power Is Reviewed De Novo — Due Process Violated by Failure to Apprise Individuals that They Were Personally at Risk of Monetary Sanctions—That Sanctions Motion Sought Sanctions Against Corporation “Or Others” Insufficient — Post-Sanctions Opportunity to Be Heard Insufficient — Rule 37 Sanctions Must Be Both “Just” and “Related to the Particular ‘Claim’” — Factors Governing Litigation-Ending Sanctions (5th Circuit) — 6. What Is a “Litigation-Ending” Sanction Is A “Practical” Determination and Broader Than Dismissal with Prejudice and Default Judgment —6. What Is a “Litigation-Ending” Sanction Is A “Practical” Determination and Broader Than Dismissal with Prejudice and Default Judgment — What Is a “Litigation-Ending” Sanction Is A “Practical” Determination and Broader Than Dismissal with Prejudice and Default Judgment — Recklessness Insufficient for Case-Ending Sanction (Bad Faith Required) — Rule 37 Authorizes Joint-and-Several Liability on a Party and Its Agents —Attorney’s Fee Award Must be Calculated Using the Lodestar Process

CEATS, Inc. v. TicketNetwork, Inc., 71 F.4th 413 (5th Cir. 2023):  Opinion This consolidated appeal concerns the injunctive and monetary sanctions that the district court imposed after a company and three individuals violated the court’s protective order. The company and the individuals challenge the s ...
CEATS, Inc. v. TicketNetwork, Inc., 71 F.4th 413 (5th Cir. 2023):  Opinion This consolidated appeal concerns the injunctive and monetary sanctions that the district court imposed after a company and three individuals violated the court’s protective order. The company and…
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Trump Lawyers’ Sanctions Case in Sixth Circuit: On Detailed Analysis, Several Sanctions Overturned Or Curtailed — Detailed Precis Below

King v. Whitmer, 71 F.4th 511 (6th Cir. 2023) Key Points  (full opinion follows) Rule 11 Sanctions:  Political Speech Outside Courtroom No Basis for Improper Purpose Inference Where It Does Not Evidence Improper Purpose Such As Harassment Or Delay — Contestin ...
King v. Whitmer, 71 F.4th 511 (6th Cir. 2023) Key Points  (full opinion follows) Rule 11 Sanctions:  Political Speech Outside Courtroom No Basis for Improper Purpose Inference Where It Does Not Evidence Improper Purpose Such As Harassment Or Delay — …
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Rule 11 — Improper Purpose — Even If Paper Filed Not Only to Vindicate Rights But Also for Some Other Purpose, Sanctions Inappropriate Unless the Other Purpose Is Undertaken in Bad Faith and Is So Excessive As to Eliminate A Proper Purpose

Columbia Gas Transmission, LLC v. Haas, 2023 U.S. App. LEXIS 19300 (4th Cir. July 27, 2023) (unpublis ...
Columbia Gas Transmission, LLC v. Haas, 2023 U.S. App. LEXIS 19300 (4th Cir. July 27, 2023) (unpublished) PER CURIAM: *1 Affirmed by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit. In 2017, Columbia Gas Transmission…
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Sanctions: § 1927 Authorizes Only Fees Incurred “Because of” Sanctionable Conduct, Not Fees Merely Related to It — Where Responsive Brief Fails to Make Necessary Disclosure Necessitating Reply, All Costs Associated with Reply Are Awardable, Not Merely Portions Specifically Prompted by Improper Non-Disclosure — Party Appealing § 1927 Sanctions Bears Burden of Showing Error in Fee — Setting Fees Is A Matter of Rough Justice and Should Not Result in Second Major Litigation — Where Time Records Excusably Imprecise Due to Unawareness of Misconduct, Rough Estimate of Fees Allocable to Misconduct Suffices — Fees Reimbursed by Insurance Still “Incurred” Within, And Awardable under § 1927 — Law of The Case Doctrine Inapplicable, Even If Same Issue Involved, Where Different Legally Relevant Factors Are Under Consideration Or Facts Are Different

Chung v. Lamb, 73 F.4th 824 (10th Cir. 2023): After a prior remand to the district court, we review the propriety of that court’s revised award of attorney fees under
Chung v. Lamb, 73 F.4th 824 (10th Cir. 2023): After a prior remand to the district court, we review the propriety of that court’s revised award of attorney fees under 28 U.S.C. § 1927, which permits monetary sanction when…
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Spoliation Sanctions: Rule 37(e)(2)’s Intent-To-Deprive Standard Is The Same Bad Faith Standard Historically Applied In Pre- Rule 37 Spoliation Cases And Still Applied In Cases Of Non-Electronic Spoliation — Prejudice To The Defendant Need Not Be Shown Under Rule 37(b)(2) — Even Though Litigation Hold Issued, Bad Faith Reasonable Inferred From Failing To (i) Back Up Text Messages, (ii) Educate Recipients About Litigation Hold, (iii) Collect Cell Phone Data For 7 Months, And (iv) Suspend Policy Of Wiping Data — No Affirmative Act Is Required To Sustain A Finding Of Bad Faith Based On Circumstantial Evidence, Either Under Rule 37(e) Or Bad Faith Case Law

Skanska United States Civil Se. Inc. v. Bagelheads, Inc., 2023 U.S. App. LEXIS 19942 (11th Cir. Aug. ...
Skanska United States Civil Se. Inc. v. Bagelheads, Inc., 2023 U.S. App. LEXIS 19942 (11th Cir. Aug. 2, 2023): *1 Hurricane Sally hit Pensacola Bay with a vengeance in September 2020, and 28 barges moored in the Bay were not…
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Post-Judgment Sanctions — Circuit Split: District Court Lacks Jurisdiction Over Motion for § 1927 Sanctions Made After Appellate Mandate Issues (Appears to Require Motion Prior to Filing of Notice of Appeal) — Post-Mandate Motion Can Seem Like an Ambush of a Losing Party Prepared to Accept a Loss Without a Pending Sanctions Motion — In Accord With All Circuits: District Court Retains Jurisdiction To Entertain Motion To Impose Inherent Power Sanctions Made After Mandate Issues — When a Number of Other Circuits Reject a Circuit’s Position, and No Other Circuit Accepts It, The Interest in Avoiding Inter-Circuit Conflict May Justify Abandoning The Position

Feehan v. Evers, 2023 U.S. App. LEXIS 19901 (7th Cir. Aug. 2, 2023) (unpublished) ORDER On December 1, 2020, plaintiff-appellee William Feehan filed this suit in the United States District Court for the Eastern Distr ...
Feehan v. Evers, 2023 U.S. App. LEXIS 19901 (7th Cir. Aug. 2, 2023) (unpublished) ORDER On December 1, 2020, plaintiff-appellee William Feehan filed this suit in the United States District Court for the Eastern District of Wisconsin. The complaint sought …
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Inherent Power Sanctions (Criminal Case): Punitive Sanctions Awardable Even If Some Non-Frivolous Arguments Are Combined With The Frivolous Arguments — Is Bad Faith A Prerequisite for Inherent Power Sanctions Other Than Attorney Fees? — Factors In Assessing Financial Penalties Include Ability To Pay And Likelihood That Financial Penalty Will Have Some Deterrent Effect

United States v. Akers, 2023 U.S. App. LEXIS 20142, *1 (10th Cir. Aug. 4, 2023): *1 Montgomery Akers appeals from a district court order imposing upon him a $40,000 punitive san ...
United States v. Akers, 2023 U.S. App. LEXIS 20142, *1 (10th Cir. Aug. 4, 2023): *1 Montgomery Akers appeals from a district court order imposing upon him a $40,000 punitive sanction for advancing frivolous arguments and assertions in a request …
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INHERENT POWER SANCTIONS FOR INTENTIONAL SPOLIATION OF EVIDENCE: DEFAULT JUDGMENT ON LIABILITY AND CAUSATION, PRECLUSION OF CONTRIBUTORY NEGLIGENCE DEFENSE — DETERRENCE IMPORTANT DUE TO SPOLIATOR’S “DEMONSTRATED PATTERN OF ABUSE” — DUE PROCESS SATISFIED BY OPPONENT’S MOTION, WHICH PROVIDED CLEAR NOTICE OF THE FACT SANCTION WERE UNDER CONSIDERATION, THE REASONS WHY, AND THE TYPES OF SANCTIONS BEING CONSIDERED

Anderson v. BNSF Rwy. Co., 2023 WL 4418221 (S.D. Iowa July 6, 2023): INTRODUCTION *1 In this Federal Employers’ Liability Act case, Plaintiff Bradley A. Anderson alleges he was injured when he hit his head on a sign placed too close to the railroad tracks when he was working for Defendant BNSF Railway Company. Ande ...
Anderson v. BNSF Rwy. Co., 2023 WL 4418221 (S.D. Iowa July 6, 2023): INTRODUCTION *1 In this Federal Employers’ Liability Act case, Plaintiff Bradley A. Anderson alleges he was injured when he hit his head on a sign placed too …
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Inherent Power — Do Federal Courts Have the Power to Impose Inherent Power Sanctions in Criminal Cases? — Undecided in Sixth Circuit — Vexatious Litigant Filing Restriction Requires Findings That Party Has Engaged in Repetitive, Frivolous Litigation — Federal Courts Lack Coram Nobis Jurisdiction Over a Criminal Defendant While the Defendant Is In Custody — A Deported Defendant Is Not In Custody, Even If Technically on Supervised Release, Which Typically Counts As “Custody”

United States v. Petlechkov, 2023 U.S. App. LEXIS 16349, 2023 WL 4230905 (6th Cir. June 28, 2023):
United States v. Petlechkov, 2023 U.S. App. LEXIS 16349, 2023 WL 4230905 (6th Cir. June 28, 2023):   *1 This is Dimitar Petlechkov’s third time before us. He now challenges the final forfeiture order entered in his criminal case…
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Inherent Power — Perils of Protective Orders: Fugitive Defendant Properly Denied Access to Confidential Discovery Materials Because, Having Removed Himself from The Jurisdiction of The District Court, The Court Could Not Enforce the Protective Order Against Him — Discovery Access Limitation Thus a Reasonable Exercise of the Court’s Inherent Authority to Protect Its Own Discovery Orders

United States SEC v. Iftikar A. Ahmed, 2023 U.S. App. LEXIS 16310, 2023 WL 4219923 (2d Cir. June 28, ...
United States SEC v. Iftikar A. Ahmed, 2023 U.S. App. LEXIS 16310, 2023 WL 4219923 (2d Cir. June 28, 2023):   *1 Defendant Iftikar Ahmed defrauded his former employer and its investors of some $65 million over the span…
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Recent Posts

RICO: (1) Victim vs. Perpetrator Enterprises — (2) § 1962(b): Elements of a Violation — (3) Meaning of “Interest” and “Control” in § 1962(b) — (4) The Defendant in a § 1962(b) Action Need Not Be an Enterprise; The Victim Must Be An Enterprise — (5) Acquisition/Maintenance Injury Required (6) Aiding and Abetting Liability under RICO

Rule 11 Sanctions: Request for Bill of Particulars re Sanctions Proceeding Reviewed for Abuse of Discretion — Court’s Discretion Narrows As Severity of Sanction Increases OR When It Initiates the Sanction Proceeding Itself — Particularly Strict Abuse of Discretion Standard Applied — “Rule 11 Does Not License a District Court to Sanction Any Action by an Attorney or Party That It Disapproves of” (Good Quote) — Failure to Provide Identify Specific Pleading and Detail Specific, Objectionable Conduct within that Pleading Violates Due Process — Failure to Provide Notice That Most Severe Sanction May Be Imposed Violates Due Process — Failure to Provide Notice That “Scarlett Letter Sanction” (Mandatory Circulation of Sanctions Order) Or Other Sanction That Could Leave Indelible Imprint on Career Might Be Imposed Violates Due Process — Notice That Law Firm Might Be Sanctioned Insufficient to Afford Notice to Firm Lawyer and Managing Partner That He Might Be Sanctioned — Refusal to Impose Additional Sanction Until Impact of Other Imposed Penalties (Not Sanctions) Ascertained to See Whether Sanction Needed

Rule 37(c)(1) Sanctions: (1) Exclusion of Expert Testimony Reviewed for Abuse of Discretion Even When It Results in Summary Judgment — (2) Whether Physicians Must File 26(a)(2)(B) Report Depends on Whether They Formed Their Opinions for Litigation Or in the Course of Medical Treatment — (3) Party Seeking to Avoid Exclusion of Its Expert for Noncompliance with Rule 26 Bears Burden of Showing Harmlessness or Substantial Justification — (4) Expert Report Subject to Exclusion If It Is Conclusory and Does Not Meet the Level of Rigor Required by Rule 26(a)(2)(B)

RICO: The Statute Defines Enterprise Broadly, “But That Breadth Is Not Without Limit” (Good Quote) — Enterprise Inadequately Pled Where Plaintiffs Fail to Name the Common Purpose, Explain How the Relationships Among the Defendants Allowed Them to Advance That Purpose, Or Specify the Period of Time Sufficient to Achieve That Purpose — In a Particular Case, the Pattern of Racketeering May Be Sufficient to Infer the Existence of an Association-in-Fact Enterprise, But Pattern Does Not Necessarily Establish Enterprise — A RICO Conspiracy May Exist Regardless of Whether the Substantive RICO Violation Is Consummated, But the Substantive Violation Must Be Adequately Pled

RICO: (1) Claim Accrued When Plaintiff Suffered, and Was Aware of, Her Injury — Overt Retaliation in Her Employment As A Result of Reporting Another Employee’s Sexual Misconduct — Not When a Report Confirming that Misconduct Later Became Public; (2) Inhouse Lawyer’s Conclusion No Sexual Misconduct Occurred Is a Mere Expression of a Legal Conclusion, Not Deception Warranting SOL Reprieve Due to Equitable Tolling or Fraudulent Concealment — Plaintiff Exhibited Lack of Diligence in Failing to Consult Own Counsel or Challenge Inhouse Counsel’s Conclusion; (3) Causation: Plaintiff Must Prove Her Injuries Were Directly Caused by the Predicate Acts — (4) Concealment of Report Commissioned by Employer Directly Harmed Employer (by Exposing It to Liability) and Victims of Sexual Misconduct, and Only Indirectly Harmed Plaintiff Who Suffered Retaliation in Her Employment for Reporting the Misconduct

RICO: Without Injury to Business or Property, Injury Resulting from RICO Violation Is Not Actionable under RICO — Meaning of “Property” in § 1964(c) — Meaning of “Business” in § 1964(c) — Mere “Expectancy Interests” ≠ Business or Property — Loss of NCAA Eligibility = Loss of a Status, Not Loss of Property — Pecuniary Losses (Here, Attorney’s Fees) Flowing from a Non-Cognizable Injury Are Not Recoverably via RICO

RICO: Enterprise Not Sufficiently Distinct from Defendant Where Enterprise Allegedly Consisted of the Defendant Corporation, Corporate Employees, Their Counsel and “Friends”

FRAP 38 Sanctions Should Not Lightly Be Awarded on the Ground That an Incorrect Argument Was Frivolous — “An Appeal Can Be Weak, Indeed Almost Hopeless, Without Being Frivolous” (Good Quote) — There Must Be “No Legitimate Basis for Pursuing the Appeal” (Good Quote)

Severe Emotional Distress and Trauma ≠ RICO Injury — Parents’ Voluntary Financial Support of Adult Daughter Who Was Forced to Sign Over Her Annuity in Violation of RICO Not Proximately Caused by RICO Violation — Injury Is Derivative, Not Direct (Intimation of Different Result if Financial Support Required by Law) — RICO Injury Is Requirement for Statutory Standing (12(b)(6) Issue), Not Constitutional Standing (12(b)(1) Issue)

RICO — Neither Filing a Complaint Nor Issuing a Press Release Constitutes Wire Fraud — Litigation Privilege Is Absolute and Bars All Tort Claims Other Than Malicious Prosecution — Abuse of Process Claim Barred (California Law)

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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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