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

RICO: Filing False Court Docs ≠ Mail/Wire Fraud or Predicate Act — De Novo Review If Denial of Leave to Amend for Futility — Inability to State Claim in State Court, District Court or on Appeal = Futile — Sanctions Not Moot Because Case Dismissed

Nero v. Mainstreet Inv 1, LLC, 2016 U.S. App. LEXIS 4368 (11th Cir. Mar. 9, 2016)” Franklin J. Nero, Sr., has filed a pro se appeal of the district court's dismissal of his complaint alleging violations of the federal Truth in Lending Act (TILA) and Racketeer Influenced and Corrupt Organizations [*2]  Act (RICO), as well as var ...
Nero v. Mainstreet Inv 1, LLC, 2016 U.S. App. LEXIS 4368 (11th Cir. Mar. 9, 2016)” Franklin J. Nero, Sr., has filed a pro se appeal of the district court's dismissal of his complaint alleging violations of the federal Truth…
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Sanctions Cannot Be Avoided by Filing Bankruptcy — Default Judgment Based on Failure to Pay Sanction (Imposed for Violation of Pretrial Order) Upheld — Res Judicata Attaches to Default Entered for Unpaid Sanctions

  In re Leonard (Leonard v. RDLG, LLC), 2016 U.S. App. LEXIS 5815 (6th Cir. Mar. 28, 2016): After Appellant Fred M. Leonard, Jr. filed for bankruptcy, Appellee RDLG, LLC initiated an adversary proceeding to have one of his debts--the result of a subsequent fraud judgment based on a default sanction--ruled nondischargea ...
In re Leonard (Leonard v. RDLG, LLC), 2016 U.S. App. LEXIS 5815 (6th Cir. Mar. 28, 2016): After Appellant Fred M. Leonard, Jr. filed for bankruptcy, Appellee RDLG, LLC initiated an adversary proceeding to have one of his debts–the result …
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Federal Jurisdiction: Extremely Frivolous Federal Question Claims, Even If Not Delusional, Won’t Support Jurisdiction (Mere Failure to State Claim Not Frivolous Enough) — RICO: 21-Month Scheme with Only a Single Victim ≠ Continuity

Antonacci v. City of Chicago, 2016 U.S. App. LEXIS 5004 (7th Cir. Mar. 18, 2016): For a little less than a year, Louis Antonacci worked on an at-will basis as a staff attorney at the firm of Seyfarth Shaw LLP. In May 2012, Seyfarth terminated his employment. To borrow Dylan Thomas's phrase, Antonacci [*2]  did no ...
Antonacci v. City of Chicago, 2016 U.S. App. LEXIS 5004 (7th Cir. Mar. 18, 2016): For a little less than a year, Louis Antonacci worked on an at-will basis as a staff attorney at the firm of Seyfarth Shaw LLP.…
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Facebook Authentication via Testimony Witness Went to Page Assigned to Alias Used by Defendant Gang Member, There Was No Claim the Page Wasn’t Defendant’s & No Evidence Anyone Else Made Postings — All Statements = Admissions

People v. McMahen, 2016 Mich. App. LEXIS 637 (Mich. Ct. App. Mar. 29, 2016): Defendant appeals as of right his jury trial conviction of first-degree premeditated murder, MCL 750.316(1)(a). Defendant was sentenced to a term of life imprisonment. For the reasons set forth in this opinion, we affirm. I. FACTS
People v. McMahen, 2016 Mich. App. LEXIS 637 (Mich. Ct. App. Mar. 29, 2016): Defendant appeals as of right his jury trial conviction of first-degree premeditated murder, MCL 750.316(1)(a). Defendant was sentenced to a term of life imprisonment. For the…
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Monetary Sanctions under Bankruptcy Code §105(a) for Violating Court Orders May Include the Costs of Investigating the Misconduct, Even If It Focused on Conduct for Which No Sanctions Are Ulimately Imposed

In re Herman (Houston v. Welt), 2015 U.S. App. LEXIS 22719 (11th Cir. Dec. 28, 2015): Attorney Bart Houston appeals the district court's affirmance of a bankruptcy court order imposing sanctions on him. Houston formerly served as counsel for Chapter 7 bankruptcy debtor Peter Herman. The bankruptcy court sa ...
In re Herman (Houston v. Welt), 2015 U.S. App. LEXIS 22719 (11th Cir. Dec. 28, 2015): Attorney Bart Houston appeals the district court's affirmance of a bankruptcy court order imposing sanctions on him. Houston formerly served as counsel for…
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Consent Decree May Be Enforced Through Inherent Power Sanctions

Frew v. Janek, 2016 U.S. App. LEXIS 5726 (5th Cir. Mar. 28, 2016): N. 25   See, e.g., Frew ex rel. Frew v. Hawkins, 540 U.S. at 439-40 (explaining that "a consent decree may be enforced" through sanctions (citing Hutto v. Finney, 437 U.S. 678, 98 S. Ct. 2565, 57 L. Ed. 2d 522 (1978)));
Frew v. Janek, 2016 U.S. App. LEXIS 5726 (5th Cir. Mar. 28, 2016): N. 25   See, e.g., Frew ex rel. Frew v. Hawkins, 540 U.S. at 439-40 (explaining that "a consent decree may be enforced" through sanctions (citing…
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Judicial Notice of Internet Evidence — Municipal Defendant’s Website Regarding City Council Authority

Bielma v. Bostic, 2016 U.S. Dist. LEXIS 152 (S.D. Cal. Jan. 4, 2016): Plaintiffs seek judicial notice of the City of Calexico website regarding City Council authority. Publically accessible websites may be judicially noticed on a motion to dismiss. See Perkins v. LinkedIn Corp., 53 F. Supp. 3d 1190, 1204 (N.D ...
Bielma v. Bostic, 2016 U.S. Dist. LEXIS 152 (S.D. Cal. Jan. 4, 2016): Plaintiffs seek judicial notice of the City of Calexico website regarding City Council authority. Publically accessible websites may be judicially noticed on a motion to dismiss.…
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Inherent Power Sanctions — Actions Taken in Court 2 That Flout Orders of Court 1 (Here, Filing Suit in Violation of Injunction & Ch. 11 Confirmation Order) Are Sanctionable by Court 1 — Bankruptcy Court Has Inherent Power to Sanction

Matter of Skyport Global Commc’n, Inc. (Schermerhorn v. Kubbernus), 2016 U.S. App. LEXIS 4714 (5th Cir. Mar. 14, 2016): Plaintiffs-Appellants (the "Schermerhorn parties") appeal the issuance of sanctions for filing a state court petition that contained misrepresentations and claims barred [*2]  by a c ...
Matter of Skyport Global Commc’n, Inc. (Schermerhorn v. Kubbernus), 2016 U.S. App. LEXIS 4714 (5th Cir. Mar. 14, 2016): Plaintiffs-Appellants (the "Schermerhorn parties") appeal the issuance of sanctions for filing a state court petition that contained misrepresentations and claims barred…
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RICO — Principal Liable for RICO Acts of Agent Only If Agent Acting in Principal’s Interest — Bank’s Publicized Pre-Screening of Ponzi Schemer Not Proximate Cause of Victims’ Losses — That 250-Page Am. Cplt. States No Claim Shows Futility

Gomez v. Bank of America, N.A., 2016 U.S. App. LEXIS 3934 (9th Cir. Mar. 2, 2016): Plaintiffs sued Bank of America, N.A., successor in interest to Countrywide Bank, FSB, formerly known as Countrywide Bank N.A., Countrywide Home Loans, Inc. (the "Bank Defendants"), and several individual defendants, alleging civil lia ...
Gomez v. Bank of America, N.A., 2016 U.S. App. LEXIS 3934 (9th Cir. Mar. 2, 2016): Plaintiffs sued Bank of America, N.A., successor in interest to Countrywide Bank, FSB, formerly known as Countrywide Bank N.A., Countrywide Home Loans, Inc. (the …
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Judicial Notice of Internet Evidence — Google Maps

Molina v. Reynolds, 2016 U.S. Dist. LEXIS 36976 (D.S.C. Jan. 25, 2016): Petitioner's trial counsel testified that he did not personally drive from the Petitioner's workplace to the victim's home. [*22]  (Dkt. No. 14-4 at 119.) However, trial counsel did "review various estimations of time provided by...Google maps [ ...
Molina v. Reynolds, 2016 U.S. Dist. LEXIS 36976 (D.S.C. Jan. 25, 2016): Petitioner's trial counsel testified that he did not personally drive from the Petitioner's workplace to the victim's home. [*22]  (Dkt. No. 14-4 at 119.) However, trial counsel did…
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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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