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

Judicial Notice — Federal Court May Take Judicial Notice of Papers Filed in State Court

Wilson v. Cnty. of Contra Costa, 2015 U.S. Dist. LEXIS 108246 (N.D. Cal. Aug. 14, 2015): As to the Due Process Claims, Defendants challenge these claims on the merits but also ask the Court, as an alternative to dismissal of these claims, to stay proceedings under the Colorado River doctrine pending the resolution of ...
Wilson v. Cnty. of Contra Costa, 2015 U.S. Dist. LEXIS 108246 (N.D. Cal. Aug. 14, 2015): As to the Due Process Claims, Defendants challenge these claims on the merits but also ask the Court, as an alternative to dismissal of …
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Appealability — Denial of Summary Judgment Is Generally Interlocutory, Subsumed by Verdict, Unappealable — But a “Controversial Exception” Exists for “Purely Legal Issues” (Circuit Split)

Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 2016 U.S. App. LEXIS 14057 (7th Cir. Aug. 2, 2016): A. Facilitating a RICO Enterprise The racetracks did not properly preserve for appeal their argument that the evidence did not support a finding that the racetracks agreed to facilitate the Blagojevich rackete ...
Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 2016 U.S. App. LEXIS 14057 (7th Cir. Aug. 2, 2016): A. Facilitating a RICO Enterprise The racetracks did not properly preserve for appeal their argument that the evidence did not support…
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Rule 11 Sanctions Inapt Where Losing Claims “Not So Obviously Foreclosed by Precedent” As to Doom Them — Courts Should Be Cautious to Avoid Chilling Enthusiasm & Creativity of Counsel — Acts Before Administrative Agency Sanctionable Only by Agency

Snow Ingredients, Inc. v. Snowizard, Inc., 2016 U.S. App. LEXIS 14977 (5th Cir. Aug. 15, 2016): As the seasons turn from spring to summer in New Orleans, locals know to expect familiar changes. The days get longer. The temperature rises. And in the humid warmth of summer, long lines grow outside the most popular sno-ball shops. The pa ...
Snow Ingredients, Inc. v. Snowizard, Inc., 2016 U.S. App. LEXIS 14977 (5th Cir. Aug. 15, 2016): As the seasons turn from spring to summer in New Orleans, locals know to expect familiar changes. The days get longer. The temperature rises.…
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Injunctions Must Be Written So That an Ordinary Person Can Understand Exactly What Is Proscribed — Omissions or Ambiguities Are Resolved in Favor of the Enjoined Party

U.S. ex rel. Yelverton v. Fed. Ins. Co., 2016 U.S. App. LEXIS 14378 (D.C. Cir. Aug. 5, 2016): These consolidated appeals are the latest chapter in a long line of litigation over a bankruptcy settlement agreed to by the trustee whom the United States Trustee appointed to represent the bankruptcy estate. The debtor's numerou ...
U.S. ex rel. Yelverton v. Fed. Ins. Co., 2016 U.S. App. LEXIS 14378 (D.C. Cir. Aug. 5, 2016): These consolidated appeals are the latest chapter in a long line of litigation over a bankruptcy settlement agreed to by the trustee …
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Spoliation — Three Purposes Underlying Adverse Inference Sanction — Lesser Sanctions OK Where No Intent to Spoliate, Lost Info Was Tangential, and Movant Was Not Diligent in Exploring Alternate Sources

Mazzei v. Money Store, 2016 U.S. App. LEXIS 12973 (2d Cir. July 15, 2016): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED. Joseph Mazzei appeals from the judgment of the United States District Court for the Southern Distric ...
Mazzei v. Money Store, 2016 U.S. App. LEXIS 12973 (2d Cir. July 15, 2016): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED. Joseph Mazzei appeals from the judgment…
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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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Recent Posts

RICO and Injunctions: (1) State Court Actions Designed to Perpetuate and Monetize a RICO Violation Are Enjoinable under RICO, Even Though They Are Not Themselves Alleged to Be Predicate Acts [Note: Noerr Pennington Applies in RICO Actions] — (2) Although Civil RICO’s Text and Legislative History Fail to Reveal Any Intent to Override the Provisions of the Federal Arbitration Act, Arbitrations Are Enjoinable Under the “Effective Vindication” Doctrine Where They Operate As a Prospective Waiver of a Party’s Right to Pursue Statutory RICO Remedies — (3) Arbitration Findings May Be Given Collateral Estoppel Effect in a Civil RICO Action — (4) Injunction of Non-Corrupt State Court Litigations That Furthers a RICO Violation Are Enjoinable Under the Anti-Injunction Act’s “Expressly Authorized” Exception — (5) “The Irreparable Harm Requirement Is The Single Most Important Prerequisite For The Issuance Of A Preliminary Injunction” (Good Quote) — (6) When Injunction Is Based on “Serious Questions on the Merits” Rather Than “Likelihood of Success,” Court May Rely on Unverified Pleadings and Attached Exhibits to Assess the Merits, Unless the Opponent Has Raised Substantial Questions (Here, the Opponent Failed to Request an Evidentiary Hearing) — (7) Whether Amended Pleading Moots An Appeal Turns on Whether It Materially Changes the Substantive Basis for the Appeal — (8) Meaning of “In That” (“Used To Introduce A Statement That Explains Or Gives More Specific Information” About A Prior Statement)

RICO: Fraudulent Concealment Must Prevent Discovery of the Injury to Toll Statute of Limitations

Rule 37 Default Judgment Sanction: (1) Abuse of Discretion Review = Legal Conclusions De Novo. Factual Findings for Clear Error — (2) Client May Be Sanctioned for Misconduct of Its Counsel, Though Here Client Was Directly Involved in Bad Faith Misbehavior — (3) Is There A Difference, Under Rule 11 As Opposed to Rule 37, Concerning Whether A Client Can Be Sanctioned for Its Counsel’s Misconduct? — (4) While Sanctions of Last Resort (Dismissal/Default) Are Apt Only If Lesser Sanctions Wouldn’t Ensure Compliance, Rule 37 Doesn’t Require the Vain Gesture of First Imposing Lessert Sanctions When It Is Clear They Would be Ineffective — (5) Court’s Reconsideration of Non-Final Orders Is Governed by Rule 54(b), And Court’s Discretion under That Rule Is Governed by the Law-of-the-Case-Doctrine

RICO: (1) Special Pleading Requirements? — (2) Although Enterprise Must Be More Than a Summation of the Predicate Acts, The Predicate Acts Can Demonstrate the Existence of the Enterprise — (3) Requirement That Association-in-Fact Exist For Purposes Other Than Just to Commit Predicate Acts Merely Requires Continuity — (4) To State an Association-in-Fact Enterprise Consisting of One Natural Person and Collection of Legal Fictions Requires Factual Detail As to How They Acted Together — (5) “A § 1962(c) Enterprise Must Be More Than An Association of Individuals Or Entities Conducting the Normal Affairs of a Defendant Corporation” (Good Quote)

RICO: (1) Fee Award May Exceed Amount Recovered — Strict Proportionality Not Required — (2) Nonmonetary Benefits and Injunctive Relief Recovered Also Relevant Factors — (3) Loss on Some Claims Need Not Result in Lowered Fees, Especially When Both Arise Out of The Same Nucleus of Operative Facts

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

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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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