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

Even If Statutory Basis for Injunction Is Later Withdrawn by Supreme Court, That Does Not Excuse Contempt, Which The District Court Has Inherent Power to Sanction (Here, By a $40 Million Fine)

FTC v. Nat'l Urological Grp., Inc., 2023 U.S. App. LEXIS 22823 (11th Cir. Aug. 29, 2023): Hi-Tech Pharmaceuticals, Inc., Jared Wheat, and Stephen Smith appeal the district court's denial of their request for relief from contempt sanctions. Nearly t ...
FTC v. Nat’l Urological Grp., Inc., 2023 U.S. App. LEXIS 22823 (11th Cir. Aug. 29, 2023): Hi-Tech Pharmaceuticals, Inc., Jared Wheat, and Stephen Smith appeal the district court’s denial of their request for relief from contempt sanctions. Nearly twenty years…
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Rule 11 Sanctions — Fees Incurred Because of the Violation, Including Fees Incurred in Bringing the Sanctions Motion, Are Recoverable Even If They Are Covered by Insurance — Res Judicata vs Claim-Splitting (The Rule Against Duplicative Litigation): Unlike Res Judicata, Which Requires A Final Judgment, The Rule Against Duplicative Litigation Permits Dismissal of a Duplicative Action While the First Case Remains Pending — A Judicial Determination That A Proposed Amendment to A Complaint Would Be Futile Operates As A Ruling on The Merits

Kezhaya v. City of Belle Plaine, 2023 U.S. App. LEXIS 22431 (8th Cir. Aug. 25, 2023) * ...
Kezhaya v. City of Belle Plaine, 2023 U.S. App. LEXIS 22431 (8th Cir. Aug. 25, 2023) *1 Attorney Matthew Kezhaya appeals an order of the district court* sanctioning him and his co-counsel under Federal Rule of Civil Procedure 11…
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12(b)(6): To What Extent May A Court Consider An Expert Report Or Affidavit Annexed To A Complaint In Deciding A Dismissal Motion?

Alix v. McKinsey & Co., 2023 U.S. Dist. LEXIS 145872, at *82-83, 2023 WL 5344892, at *27 (SDNY Aug. 18, 2023): *** Finally, [Defendant] McKinsey contends that a joint declaration from three bankruptcy professionals that Alix appended to ...
Alix v. McKinsey & Co., 2023 U.S. Dist. LEXIS 145872, at *82-83, 2023 WL 5344892, at *27 (SDNY Aug. 18, 2023): *** Finally, [Defendant] McKinsey contends that a joint declaration from three bankruptcy professionals that Alix appended to the…
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FRAP 38 Sanctions: (1) Mistake — A Colorable But Erroneous Argument — Is Not Properly Sanctioned under FRAP 38 — (2) FRAP 38 Particularly Apt When Losing Party in Arbitration Is Using Frivolous Arguments to Delay Collection of Award

Kinsella v. Baker Hughes Oilfield Operations, LLC, 66 F.4th 1099 (7th Cir. 2023) Opinion [*1101] An arbitrator rejected Donald Kinsella's claim that his employer, Baker Hughes, violated the Americans with Di ...
Kinsella v. Baker Hughes Oilfield Operations, LLC, 66 F.4th 1099 (7th Cir. 2023) Opinion [*1101] An arbitrator rejected Donald Kinsella’s claim that his employer, Baker Hughes, violated the Americans with Disabilities Act by failing to accommodate him after he suffered…
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Sanctions in the Form of Penalty Not Dischargeable in Bankruptcy — Award of Sanctions Not Subject to Statute of Limitations Defense

O'Dwyer v. Carter, 2023 U.S. App. LEXIS 10840 (5th Cir. May 3, 2023) (unpublished) PER CURIAM:* *1 Former attorney Ashton O’Dwyer, proceeding pro se, appeals from the dismissal of a suit that he filed in the United States District Court for the Eastern District of Louisiana. He has been disbarred f ...
O’Dwyer v. Carter, 2023 U.S. App. LEXIS 10840 (5th Cir. May 3, 2023) (unpublished) PER CURIAM:* *1 Former attorney Ashton O’Dwyer, proceeding pro se, appeals from the dismissal of a suit that he filed in the United States District…
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Rule 37(c)(1) sanctions for failure to disclose pursuant to Rule 26(a) — (1) Party facing Rule 37(c)(1) Sanctions Bears Burden of Proving Her Violations Were Substantially Justified or Harmless — (2) Ninth Circuit’s 4-Factor Test for Determining Whether Violation Is Harmless — (3) Parties Not Excused from Making Rule 26(a) Disclosures Simply Because They Don’t Have All Evidence — Must Disclose and Later Supplement — (4) When Rule 37(c)(1) Sanction Will Be Dispositive, Court Must Consider (a) Willfulness, Fault, Bad Faith and (b) Availability of Lesser Sanctions (9th Cir. Requirements) — (5) Court Is Required to Consider Lesser Sanctions Under Rule 37(c)(1) Only If Asked to Do So

Gryglak v. HSBC Bank USA, N.A., 2023 U.S. App. LEXIS 10946 (9th Cir. May 4, 2023) (unpublished) < ...
Gryglak v. HSBC Bank USA, N.A., 2023 U.S. App. LEXIS 10946 (9th Cir. May 4, 2023) (unpublished) MEMORANDUM* *1 Edyta Gryglak (“Gryglak”) appeals the district court’s summary judgment in favor of HSBC Bank USA, N.A., as trustee for Wells…
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Trial: Unanticipated/Undisclosed Evidence — An Objection Need Not Be Perfectly Contemporaneous with the Challenged Evidence to Be Timely

Johnson v. C.R. Bard, Inc., 2023 U.S. App. LEXIS 20963 (7th Cir. Aug. 11, 2023)  
Johnson v. C.R. Bard, Inc., 2023 U.S. App. LEXIS 20963 (7th Cir. Aug. 11, 2023)  We appreciate the challenges that parties face when attempting to respond to unanticipated issues arising in the heat of trial. For this reason, we have …
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Inherent Power Sanctions: Finding of Willfulness ≠ Finding of Subjective Bad Faith — Due Process Requires Notice of Precise Rule, Standard or Law The Lawyer Allegedly Violated And How The Lawyer Allegedly Violated It

Baker v. 3M Co., 2023 U.S. App. LEXIS 13339 (11th Cir. May 31, 2023) (unpublished) *1< ...
Baker v. 3M Co., 2023 U.S. App. LEXIS 13339 (11th Cir. May 31, 2023) (unpublished) *1 This is an appeal from the district court’s order imposing monetary sanctions against attorneys Kimberly O. Branscome and Jay L. Bhimani. At the conclusion…
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Rule 41(b) Sanctions: Dismissals Without Prejudice Generally Cause Minimal Harm — Absent a Statute of Limitations Impediment to Refiling, Court of Appeals Therefore Applies a Less Stringent Standard of Review

Ubiquitous Connectivity, LP v. Txu Energy Retail Co. LLC, 2023 U.S. App. LEXIS 14377 (Fed. Cir. June 9, 2023) (unpublished) (applying 5th Circuit law) Per Curiam. Ubiquitous Connectivity, LP, sued TXU Energy Retail Co. LLC in the Nor ...
Ubiquitous Connectivity, LP v. Txu Energy Retail Co. LLC, 2023 U.S. App. LEXIS 14377 (Fed. Cir. June 9, 2023) (unpublished) (applying 5th Circuit law) Per Curiam. Ubiquitous Connectivity, LP, sued TXU Energy Retail Co. LLC in the Northern District of …
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Rule 16(f) and 37(b)(2)(A) Sanctions: Fifth Circuit Factors for Case-Ending Sanctions and for 37(b)(2) Sanctions Generally — Preclusion, Including Exclusion of Experts, Is Not as Drastic as Dismissal or Default — The Fact that Exclusion May Have the Legal Consequence of Dismissal (Or Any Other Consequence) Does Not Affect the Appropriateness of the Sanction

Williams v. Am. Honda Motor Co., Inc., 2023 U.S. App. LEXIS 13420 (5th Cir. May 31, 2023) (unpublished) PER CURIAM:* *   This opinion is not designat ...
Williams v. Am. Honda Motor Co., Inc., 2023 U.S. App. LEXIS 13420 (5th Cir. May 31, 2023) (unpublished) PER CURIAM:* *   This opinion is not designated for publication. See 5TH CIR. R. 47.5. *1 Following a car accident,…
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Recent Posts

RICO — Pleading Conspiracy — Plaintiffs Must Plausibly Allege That the Defendants Knowingly Joined the RICO Conspiracy — Sparse Allegations of Knowledge of Fraud Due to Participation in a Commercial Transaction Insufficient to State RICO Conspiracy Claim Where Allegations Not Inconsistent with Ordinary Commercial Behavior — While Knowledge May Be Pled “Generally” under Rule 9(b), It Cannot Be Alleged Conclusorily and Must Satisfy the Twiqbal Plausibility Standard

Depositions: Improper to Object to Form to Straightforward Questions (Not Compound, Vague, Leading or Speculative) — Lack of Foundation Objection Improper in 30(b)(6) Deposition — Improper to “Educate” Witness During Breaks of 30(b)(6) Deposition Through Witness Calls to Knowledgeable Corporate Colleagues — Magistrate Judge May Impose Financial Sanctions

Spoliation/Sanctions: “A Party Does Not Spoliate Evidence When, Without Notice Of The Evidence’s Potential Relevance, It Destroys The Evidence According To Its Policy Or In The Normal Course Of Its Business” (Good Quote)

RICO: Fraud on Government Entities Causing Plaintiffs to Pay More for Inmate Calls Actionable on Bridge v. Phoenix Bond Analysis — Fact That Governments Had Separate Injuries As Part of the Scheme (from Reduced Commissions) Irrelevant — Plaintiffs’ Injuries Not Derivative of Governments’ — The Fraud on the Governments Was Not Too Distinct From Plaintiffs’ Injuries But Rather Necessary to Injure Plaintiffs — No Risk of Duplicative Recoveries and No Plaintiff Better Situated to Sue for Plaintiffs’ Injuries

Inherent Power Sanctions — Dismissal for Threatening Defendant and Magistrate Judge — No First Amendment Right to Threaten Violence

RICO: Domestic Injury — Delivery of Fraudulently Non-Conforming Goods FOB Los Angeles for Shipment to China Means Injury Arose Domestically When Purchaser Took Title —Other Relevant Factors Include That The Non-Conforming Goods Were Sourced and Made in the U.S. and The Racketeering Activity (Mail/Wire Fraud) Occurred in, and Was Directed from, the United States — Irrelevant to Domestic Injury Inquiry Whether Property Is Tangible or Intangible — 7th Circuit’s “Injury-Felt” Test of Domestic Injury Rejected by Supreme Court — RICO Standing Requires Concrete Financial Loss, Not Merely Injury to Valuable Intangible Property Interest (9th Circuit)

RICO Causation: Parents of Children with Disabilities Deprived In-Person Education and Services during the Pandemic Were Not Causally Injured by Teachers’ False Assurances to Federal Authorities That IDEA-Complaint Policies Were in Place, Which Caused Funds to Issue But Not to the Benefit of the Disabled Children — Damages Too Indirect — Proper Plaintiff Is U.S. Government — Private Injunctive Relief Under RICO Uncertain in Third Circuit

Sanctions: Rule 37(b)(2) Dismissal — Sixth Circuit Factors

Inherent Power Sanctions — Extrajudicial Misconduct: Sanctions Power Extends to Conduct Intended to Sabotage Court’s Ability to Adjudicate the Case Before It, Here, By Commencing State Court Actions Seeking to Enjoin the Federal Plaintiffs from Proceeding with Their Federal Litigation — Sanctions Fee Awards: The Factors Used For Calculating A Fee Award To A Prevailing Party Do Not Govern — Under Goodyear, the Relevant Inquiry Is Whether There Is A Sufficient Causal Link Between The Sanctioned Misconduct And The Fees Awarded

RICO: Members of Association-in-Fact Enterprise Must Act with a Common Purpose—Mere Allegation That Various Defendants Agreed at Different Times to Engage in Various Fraudulent Schemes Does Not Plausibly Support the Essential Inference, That They Acted with s Sufficiently Common Purpose

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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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