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

Does § 1927 Extend to Pre-Removal Conduct in State Court? — Case Law Split — Inherent Power Extends to Conduct Occurring before Other Tribunals

Boyer v. BNSF Rwy. Co., 2016 U.S. App. LEXIS 14913 (7th Cir. Aug. 9, 2016) (Note:  The original panel opinion is excerpted in our post of June 16, 2016): On Petition for Rehearing and Rehearing En Banc In his petition for rehearing, attorney Christopher D. Stombaugh argues for [*2]  the first time t ...
Boyer v. BNSF Rwy. Co., 2016 U.S. App. LEXIS 14913 (7th Cir. Aug. 9, 2016) (Note:  The original panel opinion is excerpted in our post of June 16, 2016): On Petition for Rehearing and Rehearing En Banc In his petition …
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Arbitration: Federal Court Has Jurisdiction under FAA to Review Award If Court Would’ve Had Jurisdiction Over Dispute But For Arb. Agreement (Look-Through Approach)—Arbitrators’ Failure to Follow Rules—Statutory Interpretation Quotes

Doscher v. Sea Port Grp. Secs., LLC, 2016 U.S. App. LEXIS 14767 (2d Cir. Aug. 11, 2016): This case arises from the dismissal of a petition to vacate an arbitral award pursuant to section 10 of the Federal Arbitration Act (the "FAA" or the "Act"), 9 U.S.C. § 10. It requires us to reconside ...
Doscher v. Sea Port Grp. Secs., LLC, 2016 U.S. App. LEXIS 14767 (2d Cir. Aug. 11, 2016): This case arises from the dismissal of a petition to vacate an arbitral award pursuant to section 10 of the Federal Arbitration Act…
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Hearsay: Letter from 3d Party’s Counsel Isn’t Business Record of 3d Party or of Recipient (Good Quotes) — Spoliation: No Adverse Inference Absent Proof Records Existed or Were Lost after Notice; Tangible vs. ESI Standards (6th Cir.)

Applebaum v. Target Corp., 2016 U.S. App. LEXIS 14049 (6th Cir. Aug. 2, 2016): Cycling and gravity have an uneasy relationship, as anyone who rides eventually learns. There are many ways, too many ways, to fall. A slick surface, an effort to avoid a hazard, a suddenly appearing animal, and a suddenly decelerating rider all come to min ...
Applebaum v. Target Corp., 2016 U.S. App. LEXIS 14049 (6th Cir. Aug. 2, 2016): Cycling and gravity have an uneasy relationship, as anyone who rides eventually learns. There are many ways, too many ways, to fall. A slick surface, an…
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Class Actions—After Trial, Pre-Judgment, Court May Decertify, Must Defer to Jury Findings Unless Clearly Wrong—No 7th Amendment Problem: Absent Class Members Rights Preserved—Appeals Court Has Discretion to Consider Waived Arguments

Mazzei v. Money Store, 2016 U.S. App. LEXIS 12994 (2d Cir. July 15, 2016): Plaintiff-appellant Joseph Mazzei initiated a class action against The Money Store et al., alleging, inter alia, overcharge of late fees on mortgages, and prevailed in a jury trial. The United States District Court for the Southern District of New York (Koeltl, ...
Mazzei v. Money Store, 2016 U.S. App. LEXIS 12994 (2d Cir. July 15, 2016): Plaintiff-appellant Joseph Mazzei initiated a class action against The Money Store et al., alleging, inter alia, overcharge of late fees on mortgages, and prevailed in a…
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Rule 37(b) Sanctions — Striking Personal Jurisdiction Defense for Failure to Provide Jurisdictional Discovery in Violation of Court Orders — Seeking Foreign Court Order Barring Discovery = Evidence of Bad Faith

Chevron Corp. v. Donziger, 2016 U.S. App. LEXIS 14552 (2d Cir. Aug. 8, 2016): Defendants-appellants Steven Donziger, Donziger & Associates, PLLC, and the Law Offices of Steven R. Donziger (collectively the "Donziger Firm" or "Firm"), and defendants-appellants Hugo Gerardo Camacho Naranjo ("Camacho") and J ...
Chevron Corp. v. Donziger, 2016 U.S. App. LEXIS 14552 (2d Cir. Aug. 8, 2016): Defendants-appellants Steven Donziger, Donziger & Associates, PLLC, and the Law Offices of Steven R. Donziger (collectively the "Donziger Firm" or "Firm"), and defendants-appellants Hugo Gerardo Camacho…
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Rule 37 Sanctions — $8.8 Million Default Judgment for Defiance of Discovery Orders — 2d Circuit Factors for Entry of Default as Sanction — Waiver vs. Forfeiture of Personal Jurisdiction Defense — Judgment Must Explicitly Be Labeled As Such

Roberts v. Bennaceur, 2016 U.S. App. LEXIS 14365 (2d Cir. Aug. 5, 2016): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the District Court is AFFIRMED. This case arises from a former business relationship between Plaintiff Benjamin Roberts ("Roberts") and Defen ...
Roberts v. Bennaceur, 2016 U.S. App. LEXIS 14365 (2d Cir. Aug. 5, 2016): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the District Court is AFFIRMED. This case arises from a former business relationship…
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RICO: Equitable/Injunctive Relief Available (Circuit Split) — Imposition of Wrongful Debt (Judgment), Attachment, and Legal Fees Paid by Def. or Earned by Pl’s Counsel = RICO Injury If Caused by Violation — Quantifiability & Injunctive Relief

Chevron Corp. v. Donziger, 2016 U.S. App. LEXIS 14552 (2d Cir. Aug. 8, 2016): Defendants-appellants Steven Donziger, Donziger & Associates, PLLC, and the Law Offices of Steven R. Donziger (collectively the "Donziger Firm" or "Firm"), and defendants-appellants Hugo Gerardo Camacho Naranjo ("Camacho") and J ...
Chevron Corp. v. Donziger, 2016 U.S. App. LEXIS 14552 (2d Cir. Aug. 8, 2016): Defendants-appellants Steven Donziger, Donziger & Associates, PLLC, and the Law Offices of Steven R. Donziger (collectively the "Donziger Firm" or "Firm"), and defendants-appellants Hugo Gerardo Camacho…
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Jurisdiction & Sanctions Post-Judgment, Pending Appeal: District Court May Enter Protective Order over Case Materials, Enter Sanctions, But Magistrate Judge May Only Issue R&R, Not Decide Post-Trial Motion That = Pretrial Motion under §636(b)(1)(A)

Springs v. Ally Fin’l Inc., 2016 U.S. App. LEXIS 13584 (4th Cir. July 26, 2016): Venus Yvette Springs appeals the district court's order affirming the magistrate judge's order modifying a prior protective order (No. 15-1244) and the court's order denying in part the motion for sanctions filed by Ally Financial, Inc., and ...
Springs v. Ally Fin’l Inc., 2016 U.S. App. LEXIS 13584 (4th Cir. July 26, 2016): Venus Yvette Springs appeals the district court's order affirming the magistrate judge's order modifying a prior protective order (No. 15-1244) and the court's order denying…
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Privilege/Work Product — Document May Be Work Product Even If (1) Not Prepared in Anticipation of a Specific Claim and (2) It Also Serves Non-Adversarial Purposes, As Long As It Was Prepared Because of the Prospect of Litigation

Nat’l Ass’n of Criminal Defense Lawyers v. U.S. Dept. of Justice, 2016 U.S. App. LEXIS 13141 (D.C. Cir. July 19, 2016): The National Association of Criminal Defense Lawyers submitted a request under the Freedom of [*2]  Information Act to obtain an internal Department of Justice publication known as the Federal Criminal ...
Nat’l Ass’n of Criminal Defense Lawyers v. U.S. Dept. of Justice, 2016 U.S. App. LEXIS 13141 (D.C. Cir. July 19, 2016): The National Association of Criminal Defense Lawyers submitted a request under the Freedom of [*2]  Information Act to obtain …
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§ 1927 Sanctions — Is Recklessness Enough or Is Something More Required? — Conduct Found Not Unreasonable Cannot Be Reckless

Tallman v. CPS Security (USA), Inc., 2016 U.S. App. LEXIS 13521 (9th Cir. July 25, 2016): The district court did not abuse its discretion in declining to impose sanctions under 28 U.S.C. § 1927 and in declining to reduce the attorney fee award [*2]  under the Fair Labor Standards Act ("FLSA") to account fo ...
Tallman v. CPS Security (USA), Inc., 2016 U.S. App. LEXIS 13521 (9th Cir. July 25, 2016): The district court did not abuse its discretion in declining to impose sanctions under 28 U.S.C. § 1927 and in declining to reduce the…
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Recent Posts

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

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

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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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