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

Forum Selection Clause: Does Federal Law Govern Validity or Chosen Law? — Circuit Split — Could The Parties Resolve This in Their Contract? — Every Foreign Forum Needn’t Duplicate U.S. Remedies (Good Quote)

Barnett v. Dyncorp Int’l, LLC, 2016 U.S. App. LEXIS 13618 (5th Cir. July 26, 2016): Plaintiff Jonathan Barnett alleges that his former employer, DynCorp International LLC, failed to give him all of the pay and benefits he was owed for work he did in Kuwait. To resolve this appeal, we must decide whether the district court properly d ...
Barnett v. Dyncorp Int’l, LLC, 2016 U.S. App. LEXIS 13618 (5th Cir. July 26, 2016): Plaintiff Jonathan Barnett alleges that his former employer, DynCorp International LLC, failed to give him all of the pay and benefits he was owed for…
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Good Quote on Judges and Juries Being Able to Put Improper Evidence Out of Their Minds

United States v. Christensen, 2016 U.S. App. LEXIS 12738 (9th Cir. July 8, 2016): We routinely trust juries to follow limiting instructions when evidence is erroneously admitted. See United States v. Mende, 43 F.3d 1298, 1302 (9th Cir. 1995) (explaining that jurors are presumed to have "follow[ed] the district court' ...
United States v. Christensen, 2016 U.S. App. LEXIS 12738 (9th Cir. July 8, 2016): We routinely trust juries to follow limiting instructions when evidence is erroneously admitted. See United States v. Mende, 43 F.3d 1298, 1302 (9th Cir. 1995) (explaining…
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Does American Pipe Tolling Apply to Statutes of Repose? — Circuit Split

In re Lehman Brothers Secs. & ERISA Litig., 2016 U.S. App. LEXIS 12651 (2d Cir. July 8, 2016): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the orders of the District Court are AFFIRMED. The California Public Employees' Retirement System ("CalPERS") appe ...
In re Lehman Brothers Secs. & ERISA Litig., 2016 U.S. App. LEXIS 12651 (2d Cir. July 8, 2016): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the orders of the District Court are AFFIRMED. The California…
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Settlement Conditioned on Vacatur of Opinion OK Where Court Urges Settlement & Settlement Otherwise Impossible — How Broad Is the Court’s Discretion to Vacate in Order to Facilitate Settlement?

Hartford Cas. Ins. Co. v. Crum & Forster Spec. Ins. Co., 2016 U.S. App. LEXIS 12813 (11th Cir. July 12, 2016): This appeal concerns [*3]  a settlement agreement made contingent on vacating certain orders of the District Court. After being moved to do so under Rule 60(b) of the Federal Rules of Civil Procedure, the District C ...
Hartford Cas. Ins. Co. v. Crum & Forster Spec. Ins. Co., 2016 U.S. App. LEXIS 12813 (11th Cir. July 12, 2016): This appeal concerns [*3]  a settlement agreement made contingent on vacating certain orders of the District Court. After being…
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Sanctions — § 1927 Award May Include All Straws, Not Just the Back-Breaker — Civil vs. Criminal Fines Distinguished — District Court May Always Reconsider — Party’s “Approach Has Little But Chutzpah” — The Rule of Holes (Good Quotes)

Lightspeed Media Corp. v. Smith, 2016 U.S. App. LEXIS 13195 (7th Cir. July 19, 2016) (Note:  the earlier Seventh Circuit opinion in this case, which is referenced below, is excerpted in our post of August 11, 2014; the Ingenuity 13 decision, which is distinguished, is excerpted in our post of July 28, 2016):
Lightspeed Media Corp. v. Smith, 2016 U.S. App. LEXIS 13195 (7th Cir. July 19, 2016) (Note:  the earlier Seventh Circuit opinion in this case, which is referenced below, is excerpted in our post of August 11, 2014; the…
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Inherent Power Sanctions — Extrajudicial Misconduct Covered — Doubling of Attorney’s Fees Still Civil, Not Criminal — District Court May Order Enhanced Bond to Cover Appellate Attorney’s Fees Where Pervasive Misconduct (= Another Sanction)

Ingenutiy13 LLC v. Doe, 2016 U.S. App. LEXIS 10557 (9th Cir. June 10, 2016): Paul Duffy, Paul Hansmeier, and John Steele (collectively, "the Prenda Principals") appeal the district court's award of attorney's fees, including a punitive multiplier, and a second supersedeas bond order. We have jurisdiction pursuant to ...
Ingenutiy13 LLC v. Doe, 2016 U.S. App. LEXIS 10557 (9th Cir. June 10, 2016): Paul Duffy, Paul Hansmeier, and John Steele (collectively, "the Prenda Principals") appeal the district court's award of attorney's fees, including a punitive multiplier, and a second…
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District Courts Are Bound by the Law of Their Circuit & Are Not to Resolve Circuit Splits No Matter How Egregiously Erroneous They May Feel Their Own Circuit to Be (Good Quote)

United States v. Joyner, 2016 U.S. Dist. LEXIS 90241 (N.D. Ga. May 24, 2016): The Government again has the better arguments. Davis held that the Government does not need a probable cause-based search [*9]  warrant to obtain, as here, historical cell site information under § 2703(d). Davis, 785 ...
United States v. Joyner, 2016 U.S. Dist. LEXIS 90241 (N.D. Ga. May 24, 2016): The Government again has the better arguments. Davis held that the Government does not need a probable cause-based search [*9]  warrant to obtain, as here, historical…
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Rule 16(f) Sanctions: Dismissal for Failure to Appear at Pretrial Conference — Factors — No Need to Consider Merits — The “Federal Courts Are Not a Playground for the Petulant or Absent-Minded” (Good Quote)

Callahan v. Commc’ns Graphics, Inc., 2016 U.S. App. LEXIS 13315 (10th Cir. July 21, 2016): ORDER AND JUDGMENT* *   After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination ...
Callahan v. Commc’ns Graphics, Inc., 2016 U.S. App. LEXIS 13315 (10th Cir. July 21, 2016): ORDER AND JUDGMENT* *   After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in…
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Facebook Authentication: Page in Party’s Name, Uses His Unique Nickname Which Is Also An Email Address of His, Photos and Personal Information Are His, and He’s Seen Using His Phone Around the Time the Posts Are Made

Jones v. State, 2016 Tex. App. LEXIS 3794 (Tex. Ct. App. April 13, 2016): Appellant, Stanford Dewayne Jones Sr., appeals his convictions on three counts of arson. He presents three issues on appeal contending that (1) the evidence is insufficient to support his convictions, (2) the trial court erred in the admission o ...
Jones v. State, 2016 Tex. App. LEXIS 3794 (Tex. Ct. App. April 13, 2016): Appellant, Stanford Dewayne Jones Sr., appeals his convictions on three counts of arson. He presents three issues on appeal contending that (1) the evidence is…
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Rule 37/Inherent Power Sanction of Default for Flouting Discovery Orders, Failing to Attend Deposition — Entire Cost of Defense, Not Just Amount Caused by Failures — 5 Exceptions to Rule That Appeals Courts Won’t Consider Issues Not Presented Below

Denis v. State Farm Life Ins. Co., 2016 U.S. App. LEXIS 10989 (11th Cir. June 17, 2016): Appellant Ronald Denis appeals the district court's award of attorney's fees and costs for his repeated discovery violations. After careful review, we affirm. Denis served as counsel in the district court fo ...
Denis v. State Farm Life Ins. Co., 2016 U.S. App. LEXIS 10989 (11th Cir. June 17, 2016): Appellant Ronald Denis appeals the district court's award of attorney's fees and costs for his repeated discovery violations. After careful review, we…
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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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