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 11 Sanctions: Forum-Shopping ≠ Improper Purpose If Jurisdiction Is Arguable — No Answer to Say Movant Unhappy with Other Court — Objective Reasonableness Is Tough Standard: Aggressive ≠ Unreasonable (Good Quotes) — Supp. v Amended Complaint

Predator Int’l, Inc. v. Gamo Outdoor USA, Inc., 793 F.3d 1177 (10th Cir. 2015): Attorney John Cogswell appeals the imposition of a Rule 11 sanction. Acting on behalf of Predator International, Inc., Cogswell filed a lawsuit in April 2009 in the United States District Court for the District of Colorado against Gamo Outdoor US ...
Predator Int’l, Inc. v. Gamo Outdoor USA, Inc., 793 F.3d 1177 (10th Cir. 2015): Attorney John Cogswell appeals the imposition of a Rule 11 sanction. Acting on behalf of Predator International, Inc., Cogswell filed a lawsuit in April 2009 in …
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Social Media (Twitter, Facebook, Etc.) Authentication — Louisiana Adopts the “Reasonable Juror” / Circumstantial-Evidence Approach: Is There Proof from Which a Reasonable Juror Could Find That the Evidence Is What the Proponent Claims?

State v. Smith, 2016 La. App. LEXIS 760 (La. Ct. App. Apr. 20, 2016): [Pg 1] Defendant Demontre Smith ("Mr. Smith") seeks review of the trial court's November 18, 2015 ruling that denied his motion to exclude digital evidence for lack of authentication. Finding the State failed to present any evidence at all to a ...
State v. Smith, 2016 La. App. LEXIS 760 (La. Ct. App. Apr. 20, 2016): [Pg 1] Defendant Demontre Smith ("Mr. Smith") seeks review of the trial court's November 18, 2015 ruling that denied his motion to exclude digital evidence for …
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Judicial Notice of Internet Evidence — Notice Properly Taken of eBay’s Website, Its Operation, and Its User Agreement

Estate of Graham v. Sotheby’s, Inc., 2016 U.S. Dist. LEXIS 53079 (C.D. Cal. Apr. 11, 2016): Before the Court are three Motions filed in these related actions:    o Auction House Defendants' Joint Motion to Dismiss the Complaints (the "Joint Motion"), filed on February 1, 2016. (No. ...
Estate of Graham v. Sotheby’s, Inc., 2016 U.S. Dist. LEXIS 53079 (C.D. Cal. Apr. 11, 2016): Before the Court are three Motions filed in these related actions:    o Auction House Defendants' Joint Motion to Dismiss the Complaints (the "Joint Motion"),…
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Sanctions — Claims That Survived Rule 12(c) and 56 Motions and Were Supported by Multiple Witnesses Not Sanctionable under Rule 11, § 1927 or Inherent Power — District Judge in Best Position to Evaluate Sanctions (Good Quote)

Duranseau v. Portfolio Recovery Assocs., LLC, 2016 U.S. App. LEXIS 6112 (8th Cir. Apr. 4, 2016) Harvey Duranseau sued Portfolio Recovery Associates, LLC (PRA), alleging violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692 et seq., and Minnesota law. The parties filed cross-motions for summary judg ...
Duranseau v. Portfolio Recovery Assocs., LLC, 2016 U.S. App. LEXIS 6112 (8th Cir. Apr. 4, 2016) Harvey Duranseau sued Portfolio Recovery Associates, LLC (PRA), alleging violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692 et seq.,…
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Spoliation — Tangible Evidence — Negligence Still Enough in 6th Circuit — No Adverse Inference Instruction If Moot in Light of Governing Law and No Default Judgment If Insufficient Prejudice or Egregiousness

McCarty v. Liberty Mut. Agency Mkts., 2016 U.S. App. LEXIS 2696 (6th Cir. Feb. 16, 2016): David McCarty, a subcontractor, was killed during the installation of a garage door at the Defendant-Appellee Covol Fuels (Covol) coal mine in Muhlenberg County, Kentucky. McCarty's wife, Plaintiff-Appellant Nancy McCarty (Ms. McCarty) filed ...
McCarty v. Liberty Mut. Agency Mkts., 2016 U.S. App. LEXIS 2696 (6th Cir. Feb. 16, 2016): David McCarty, a subcontractor, was killed during the installation of a garage door at the Defendant-Appellee Covol Fuels (Covol) coal mine in Muhlenberg County,…
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FRAP 38 / § 1927 Sanctions on Appeal Permissible for Failure to Engage Substantively with Cases District Court Relied on or If Appeal Brought Solely to Delay

B. Bowles's Motion for Fees, Costs, and Sanctions In re De La Madrid (De La Madrid v. Bowles Custom Pools & Spa, 2016 U.S. App. LEXIS 5626 (1st Cir. Mar. 25, 2016): This appeal arises from a dispute whether the bankruptcy court erred in enlarging time for a creditor to file an unsecured claim. Appellant Jul ...
B. Bowles's Motion for Fees, Costs, and Sanctions In re De La Madrid (De La Madrid v. Bowles Custom Pools & Spa, 2016 U.S. App. LEXIS 5626 (1st Cir. Mar. 25, 2016): This appeal arises from a dispute whether the…
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RICO Injunctive Relief Allowed (Circuit Split) — Request for Legal Relief Doesn’t Preclude Asset Freeze to Preserve Availability of Equitable Relief (Disgorgement) — Alternative Pleading OK — Motions to Strike Disfavored

Absolute Activist Value Master Fund Ltd. v. Devine, 2016 U.S. Dist. LEXIS 52263 (M.D. Fla. Apr. 19, 2016): This matter comes before the Court on defendant Susan Devine's Motion to Dissolve Temporary Restraining Order (Doc. #96) filed on September 29, 2015. Plaintiffs filed a Motion to Strike defendants' Motion ...
Absolute Activist Value Master Fund Ltd. v. Devine, 2016 U.S. Dist. LEXIS 52263 (M.D. Fla. Apr. 19, 2016): This matter comes before the Court on defendant Susan Devine's Motion to Dissolve Temporary Restraining Order (Doc. #96) filed on September 29,…
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Spoliation — No Adverse Inference Sufficient to Avoid Summary Judgment Generated by Loss of Evidence Irrelevant to the Causation Problem That Led to Grant of SJ

Vaughn v. Konecranes, Inc., 2016 U.S. App. LEXIS 4061 (6th Cir. Mar. 1, 2016): The essential question is one of causation in this diversity action arising out of an accident on a job site in Paris, Kentucky. The case is very fact-intensive. Plaintiff, George Vaughn, was injured when an overhead crane moved a piece of equipment ...
Vaughn v. Konecranes, Inc., 2016 U.S. App. LEXIS 4061 (6th Cir. Mar. 1, 2016): The essential question is one of causation in this diversity action arising out of an accident on a job site in Paris, Kentucky. The case is…
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Voicemail Admissibility — Rule 801(d)(2)(C) — Voicemail Left by A Purportedly on B’s Behalf Is Hearsay Absent Independent Proof That A Was an Agent of Or Was Otherwise Authorized by B to Leave the Voicemail

State v. Davis, 2016 Ariz. App. Unpub. LEXIS 323 (Ariz. Ct. App. Mar. 16, 2016): P1 Following a jury trial, Mohammed Davis was convicted of three counts of aggravated harassment. On appeal, Davis argues the trial court abused its discretion by admitting evidence of prior bad acts, denying his motion to sever offenses, ...
State v. Davis, 2016 Ariz. App. Unpub. LEXIS 323 (Ariz. Ct. App. Mar. 16, 2016): P1 Following a jury trial, Mohammed Davis was convicted of three counts of aggravated harassment. On appeal, Davis argues the trial court abused its discretion…
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Disqualification — Lower Court Affirmed If Record Reveals Any Sound Basis for Its Action (Good Quote) — Denial of Sanctions Appropriate Where Written Discovery Corrected Incorrect Aspects of 26(a) Disclosures

Garcia v. Johnson, 2015 U.S. App. LEXIS 19786 (9th Cir. Nov. 13, 2015): This appeal arises from the District Court's grant of summary judgment to Defendant-Appellee Jeh Johnson, Secretary of the Department of Homeland Security ("DHS" or "Defendant"), and denial of several other motions. Plaintiff-Appellant Stev ...
Garcia v. Johnson, 2015 U.S. App. LEXIS 19786 (9th Cir. Nov. 13, 2015): This appeal arises from the District Court's grant of summary judgment to Defendant-Appellee Jeh Johnson, Secretary of the Department of Homeland Security ("DHS" or "Defendant"), and denial…
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Recent Posts

Rule 41(b): Five Factors to Be Weighed in Deciding Whether Dismissal Is Appropriate (Second Circuit) — Is A Finding of Bad Faith or Fault Required if Dismissal Is Without Prejudice? — Undecided If Truly Without Prejudice But It Is Required If the Without Prejudice Dismissal Will Act as a Dismissal on the Merits (Here, Because of the Statute of Limitations) — Failure To Consider A Lesser Sanction Than Dismissal Is Generally An Abuse Of Discretion

Spoliation Sanctions/Mootness: Stipulation Resolving “All Pending Discovery Disputes,” Which Are Enumerated, Does Not Moot Subsequent Sanctions Motion for ESI Spoliation — Postjudgment Sanctions Order Is Appealable When District Court Has Finally Disposed of Both Liability and Amount

Rule 37 Default Judgment Sanction: (1) Default Judgment Appropriate Only As a Last Resort, When Less Drastic Sanctions Would Not Ensure Compliance with the Court’s Orders — (2) Default Judgment Sanction Requires Willful or Bad Faith Failure to Obey Discovery Order — (3) Fugitive Defendant’s Failure to Appear at Court-Ordered, Remote Deposition Despite Court Warning That Sanctions Could Follow Disobedience Warrants Default Judgment — (4) District Court Afforded Wide Discretion in Interpreting Its Own Orders — (5) Filing a Notice of Appeal from a Non-Appealable Order (Here, a Discovery Order) Does Not Deprive the District Court of Jurisdiction over the Case

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

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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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