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 of Internet Evidence — Wayback Machine

Hepp v. Ultra Green Energy Servs., LLC, 2016 U.S. Dist. LEXIS 34953 (N.D. Ill. Mar. 18, 2016):   Defendant Ultra Green Energy Services LLC ("Ultra Green") moves this Court for a new trial pursuant to Rule 59(a) or for an order altering or amending its judgment pursuant to Rule 59(e). For the reasons ...
Hepp v. Ultra Green Energy Servs., LLC, 2016 U.S. Dist. LEXIS 34953 (N.D. Ill. Mar. 18, 2016):   Defendant Ultra Green Energy Services LLC ("Ultra Green") moves this Court for a new trial pursuant to Rule 59(a) or for an order…
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Sanctions — Vexatious Litigant Injunction Must Allow Enjoinee to Seek Permission for Additional Filings (Even If He’s Up to His Sixth Amended Complaint) and Can’t Shut Him Down Categorically

Gottlieb v. Ford, 2016 U.S. App. LEXIS 2330 (2d Cir. Feb. 11, 2016): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED in part and VACATED and REMANDED in part. Plaintiff-Appellant Allen Gottlieb ("Gottl ...
Gottlieb v. Ford, 2016 U.S. App. LEXIS 2330 (2d Cir. Feb. 11, 2016): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED in part and VACATED and REMANDED in part.…
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Twitter Admissibility — Third-Party Tweets = Hearsay on Issue of Actual Confusion in Trademark Dispute Absent Authentication from Declarants

Ponelman v. Nike, Inc., 2016 U.S. Dist. LEXIS 17662 (N.D. Ill. Feb. 9, 2016): Daniel Poneman ("Plaintiff") brings suit against Nike, Inc. ("Nike"), and Footlocker, Inc. ("Foot Locker"), (collectively "Defendants") for trademark infringement related to his "SwagAir" mark pursuan ...
Ponelman v. Nike, Inc., 2016 U.S. Dist. LEXIS 17662 (N.D. Ill. Feb. 9, 2016): Daniel Poneman ("Plaintiff") brings suit against Nike, Inc. ("Nike"), and Footlocker, Inc. ("Foot Locker"), (collectively "Defendants") for trademark infringement related to his "SwagAir" mark pursuant to …
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Removal: Does Voluntary Removal by State Defendants Waive Eleventh Amendment Immunity? — Circuit Split

Singleton v. Commonwealth of Ky., 2016 U.S. Dist. LEXIS 43383 (E.D. Ky. Mar. 31, 2016): To the extent the Singletons argue these parties waived their Eleventh Amendment immunity by removing this suit to federal court, the Court disagrees. The circuit courts are split as to whether voluntarily removing a lawsuit to federal cour ...
Singleton v. Commonwealth of Ky., 2016 U.S. Dist. LEXIS 43383 (E.D. Ky. Mar. 31, 2016): To the extent the Singletons argue these parties waived their Eleventh Amendment immunity by removing this suit to federal court, the Court disagrees. The circuit …
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Which Party Bears the Burden of Proof of Establishing Personal Jurisdiction on a Rule 60(b) Motion to Lift a Default Judgment? — Circuit Split

Frenkel v. Klein, 2016 U.S. Dist. LEXIS 35826 (E.D. Pa. Mar. 21, 2016): Leon Frenkel sued Defendants Bruce Klein and Victory Partners LLC ("VPLLC") in 2014 for breach of contract, and on August 11, 2014, this Court entered a default judgment against Defendants. More than a year later, Defendants filed a Motion to Set Aside t ...
Frenkel v. Klein, 2016 U.S. Dist. LEXIS 35826 (E.D. Pa. Mar. 21, 2016): Leon Frenkel sued Defendants Bruce Klein and Victory Partners LLC ("VPLLC") in 2014 for breach of contract, and on August 11, 2014, this Court entered a default…
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Appeals — Court of Appeals May, But Generally Will Not, Affirm on Other Grounds Supported by Record But Not Considered by District Court — Inherent Power Sanctions Should First Be Sought in Lower Court

Zappulla v. Annucci, 2016 U.S. App. LEXIS 4089 (2d Cir. Mar. 4, 2016): Plaintiff Guy Zappulla appeals from a summary judgment award in favor of defendants Anthony J. Annucci and Carl Koenigsmann on Zappulla's claims that his Eighth and Fourteenth Amendment rights were violated by inadequate medical treatment while in the custody o ...
Zappulla v. Annucci, 2016 U.S. App. LEXIS 4089 (2d Cir. Mar. 4, 2016): Plaintiff Guy Zappulla appeals from a summary judgment award in favor of defendants Anthony J. Annucci and Carl Koenigsmann on Zappulla's claims that his Eighth and Fourteenth…
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Rule 11 & §1927 Sanctions Properly Imposed on Counsel for Violating Sham Affidavit Doctrine Despite Warnings in Prior Cases — Abuse of Discretion Doctrine “Is Not Appellant-Friendly” and Imposes a “Weighty Burden” (Good Quote)

Escribano-Reyes v. Prof’l HEPA Certificate Corp., 2016 U.S. App. LEXIS 5851 (1st Cir. Mar. 30, 2016): Carlos Escribano-Reyes's ("Escribano") discrimination and retaliation suit against his employer, Professional HEPA Certificate Corp. ("HEPA"), ended in summary judgment for HEPA and a sanction order a ...
Escribano-Reyes v. Prof’l HEPA Certificate Corp., 2016 U.S. App. LEXIS 5851 (1st Cir. Mar. 30, 2016): Carlos Escribano-Reyes's ("Escribano") discrimination and retaliation suit against his employer, Professional HEPA Certificate Corp. ("HEPA"), ended in summary judgment for HEPA and a sanction …
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Spoliation Sanctions — Deletion of ESI Following Multiple Preservation Demands and Entry of Court Order Is Willful and Warrants Default Judgment

Roadrunner Transp. Servs., Inc. v. Tarwater, 2016 U.S. App. LEXIS 4999 (9th Cir. Mar. 18, 2016): John Tarwater appeals the district court's entry of default judgment and award of attorneys' fees in favor of his former employer, Roadrunner Transportation Services, Inc. Roadrunner cross-appeals the district court's compensat ...
Roadrunner Transp. Servs., Inc. v. Tarwater, 2016 U.S. App. LEXIS 4999 (9th Cir. Mar. 18, 2016): John Tarwater appeals the district court's entry of default judgment and award of attorneys' fees in favor of his former employer, Roadrunner Transportation Services,…
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Personal Jurisdiction — Is a Corporation’s Registration to Do Business in a State Sufficient to Support Personal Jurisdiction? — Circuit Split — In Any Event, Registration Is a Factor

Helsinn Healthcare S.A. v. Hospira, Inc., 2016 U.S. Dist. LEXIS 45826 (D.N.J. April 5, 2016): This patent infringement action arises from an Abbreviated New Drug Application ("ANDA") submitted by Defendant Hospira, Inc. ("Hospira") for approval from the United States Food and Drug Administration ("FDA& ...
Helsinn Healthcare S.A. v. Hospira, Inc., 2016 U.S. Dist. LEXIS 45826 (D.N.J. April 5, 2016): This patent infringement action arises from an Abbreviated New Drug Application ("ANDA") submitted by Defendant Hospira, Inc. ("Hospira") for approval from the United States Food …
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Judicial Notice of Internet Evidence — Corporate Website for Items Corporation Offers for Sale

Smith v. U.S. Congress, 2015 U.S. Dist. LEXIS 27818 (E.D. Va. March 6, 2015): With respect to the current teachings of Minister Farrakhan, Mr. Smith remains free to purchase other publications from The Final Call, Inc., including The Final Call newspaper, described on The Final Call website as "the official communications ...
Smith v. U.S. Congress, 2015 U.S. Dist. LEXIS 27818 (E.D. Va. March 6, 2015): With respect to the current teachings of Minister Farrakhan, Mr. Smith remains free to purchase other publications from The Final Call, Inc., including The Final Call …
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Recent Posts

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

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.”

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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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