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

§ 1927 Sanctions — Where There Appears to Be a Genuine Question Whether § 1927 Was Violated, It Is Error for the District Court Not to Explain Its Denial of Fees — District Court Has Better Means of Knowing What Is Just re Sanctions (Good Quotes)

U.S. ex rel. Burke v. Record Press, Inc., 2016 U.S. App. LEXIS 4685 (D.C. Cir. Mar. 15, 2016): Under the False Claims Act, 31 U.S.C. §§ 3729-3733, a private person can bring an action on behalf of the government (and herself) alleging that a third party submitted a false or fraudulent claim for payment to the government. See gen ...
U.S. ex rel. Burke v. Record Press, Inc., 2016 U.S. App. LEXIS 4685 (D.C. Cir. Mar. 15, 2016): Under the False Claims Act, 31 U.S.C. §§ 3729-3733, a private person can bring an action on behalf of the government (and…
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American Pipe Tolling Does Not Benefit Absent Class Members Who File Suit Before Class Certification Decided (Circuit Split) and Does Not Apply to Statutes of Repose (Another Circuit Split)

Stein v. Regions Morgan Keegan Select High Income Fund, Inc., 2016 U.S. App. LEXIS 9142 (6th Cir. May 19, 2016): [**7] A. Overview of statutes of limitation and statutes of repose Defendants provide two alternative arguments that Plaintiffs' claims are untimely: both the applicable statutes ...
Stein v. Regions Morgan Keegan Select High Income Fund, Inc., 2016 U.S. App. LEXIS 9142 (6th Cir. May 19, 2016): [**7] A. Overview of statutes of limitation and statutes of repose Defendants provide two alternative arguments that Plaintiffs' claims are…
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Judicial Notice of Internet Evidence — Governmentally-Chartered Corporation’s Articles of Incorporation As Posted on Its Website

Widad v. Brooklyn Public Library, 2015 U.S. Dist. LEXIS 154087 (E.D.N.Y. Nov. 13, 2015): On July 22, 2015, Laila Widad, proceeding pro se, commenced this action against the Brooklyn Public Library ("BPL") and Jane Doe, an unnamed BPL employee, for damages arising from a physical altercation involving Plaintiff and J ...
Widad v. Brooklyn Public Library, 2015 U.S. Dist. LEXIS 154087 (E.D.N.Y. Nov. 13, 2015): On July 22, 2015, Laila Widad, proceeding pro se, commenced this action against the Brooklyn Public Library ("BPL") and Jane Doe, an unnamed BPL employee, for…
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FRAP 38, § 1927, § 1912 Sanctions — Bad Faith Not Required under Rule 38, But Sanctions Generally Imposed Only If Improper Purpose — Not Sanctionable to Urge, in a Complex Field, a Novel Argument Lost in Some District Courts But Never on Appeal

Hogan v. Jacobson, 2016 U.S. App. LEXIS 9373 (6th Cir. May 23, 2016): In 2011, Violet Hogan sued the Life Insurance Company of North America for violating the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq., by denying her claim for benefits under a disability-insurance policy. After losing that cas ...
Hogan v. Jacobson, 2016 U.S. App. LEXIS 9373 (6th Cir. May 23, 2016): In 2011, Violet Hogan sued the Life Insurance Company of North America for violating the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq.,…
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Facebook Admissibility — Victim’s Facebook Post 2 Hours Before His Death in Gunfight That He Was Resuming Gang Life, Including Murder, Properly Excluded from Trial on Issue of Who Fired First — Rule 403 Analysis (Cal. Evid. Code352)

People v. Cornejo, 2016 Cal. App. LEXIS 424 (Cal. Ct. App. May 25, 2016): Deandre Ellison was shot to death as he drove into his driveway in the Del Paso Heights neighborhood of Sacramento. Four other men, including Latrele Neal, were also in Ellison's car. Before the car came to a stop in the driveway, an SUV driven by Je ...
People v. Cornejo, 2016 Cal. App. LEXIS 424 (Cal. Ct. App. May 25, 2016): Deandre Ellison was shot to death as he drove into his driveway in the Del Paso Heights neighborhood of Sacramento. Four other men, including Latrele Neal, …
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Sanctions — Rule 11 Does Not Apply on Appeal and FRAP 38 Does Not Apply to Appellees

Caldwell v. Pesce, 2016 U.S. App. LEXIS 6739 (2d Cir. Apr. 14, 2016): Plaintiffs-appellants Ken and Lisa Caldwell, proceeding pro se, appeal the District Court's March 2, 2015, judgment sua sponte dismissing their complaint with prejudice pursuant to 28 U.S.C. § 1915(e)(2). In their complaint, plaintiffs-appella ...
Caldwell v. Pesce, 2016 U.S. App. LEXIS 6739 (2d Cir. Apr. 14, 2016): Plaintiffs-appellants Ken and Lisa Caldwell, proceeding pro se, appeal the District Court's March 2, 2015, judgment sua sponte dismissing their complaint with prejudice pursuant to 28 U.S.C.…
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Handwriting Expert Testimony Inadmissible — Sanctions: Lawyer May Rely on Client without Assessing Credibility; Improper to Impose $ Sanctions on Destitute Party; Dismissal for Fraud on Court — Statute of Frauds vs. Unjust Enrichment

Almeciga v. Ctr. for Investigative Reporting,Inc., 2016 U.S. Dist. LEXIS 60539 (S.D.N.Y. May 6, 2016): Before the Court is the motion of defendant Center for Investigative Reporting, Inc. ("CIR"), for judgment on the pleadings, as well as CIR's Rule 11 motion for sanctions against plaintiff Erica Almeciga and her counsel ...
Almeciga v. Ctr. for Investigative Reporting,Inc., 2016 U.S. Dist. LEXIS 60539 (S.D.N.Y. May 6, 2016): Before the Court is the motion of defendant Center for Investigative Reporting, Inc. ("CIR"), for judgment on the pleadings, as well as CIR's Rule 11…
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Breach of Contractual Promise = Mail/Wire Fraud Only If No Intent to Perform at Signing — Later Willful Breach Not Enough — Deception Outside 4 Corners (E.g., to Hide Breach) May Be Enough — Silence Suffices If Duty to Speak

U.S. ex rel. O’Donnell v. Countrywide Home Loans, Inc., 2016 U.S. App. LEXIS 9365 (2d Cir. May 23, 2016): When can a breach of contract also support a claim for fraud? This question--long an issue in common-law courts--comes before us in the context of a judgment in the United States District Court for the Southern ...
U.S. ex rel. O’Donnell v. Countrywide Home Loans, Inc., 2016 U.S. App. LEXIS 9365 (2d Cir. May 23, 2016): When can a breach of contract also support a claim for fraud? This question–long an issue in common-law courts–comes before us…
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RICO — Association Standing: 3-Part Test — Medical Societies Lack Standing to Sue Even for Injunctive and Declaratory Relief for RICO Violations: The Relief Requested Requires Participation of Their Members

Franco v. Conn. Gen. Life Ins. Co., 2016 U.S. App. LEXIS 7886 (3d Cir. May 2, 2016): I. These consolidated appeals have three sets of Appellants. First, there are those Appellants who are participants in employer-sponsored health care plans administered by the Connecticut General Life Insurance Company and affiliated entiti ...
Franco v. Conn. Gen. Life Ins. Co., 2016 U.S. App. LEXIS 7886 (3d Cir. May 2, 2016): I. These consolidated appeals have three sets of Appellants. First, there are those Appellants who are participants in employer-sponsored health care plans administered…
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Abuse of Discretion — Limits of Discretion — Court May Not Do Whatever It Pleases — Party’s Wealth Irrelevant (Good Quotes)

Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984): [W]hen we say that a decision is discretionary, or that a district court has discretion to grant or deny a motion, we do not mean that the district court may do whatever pleases it. ... The fact that a party is a corporation, or is thought to be rich, or both, is and must be ...
Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984): [W]hen we say that a decision is discretionary, or that a district court has discretion to grant or deny a motion, we do not mean that the district…
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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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