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

First Impression — Removal — Appellate Jurisdiction to Review Remand Orders: Notwithstanding 28 U.S.C. § 1447(d), Court of Appeals Has Jurisdiction to Review Remand Order Citing §1447(e) Where That Statute Is Not Actually The Basis of The Order But Prudential Considerations (Abstention) Are— § 1447(e) Cannot Serve As A Basis To Remand If The Plaintiff Is Not Seeking To Add A Party Whose Joinder Would Destroy Subject-Matter Jurisdiction

LeChase Constr. Servs., LLC v. Argonaut Ins. Co., 2023 U.S. App. LEXIS 6976 (2d Cir. Mar. 23, 2023) Argonaut Insurance Company [*3]  ("Argonaut") appeals from an order of the district court (Wolford, J.) remanding this breach-of- ...
LeChase Constr. Servs., LLC v. Argonaut Ins. Co., 2023 U.S. App. LEXIS 6976 (2d Cir. Mar. 23, 2023) Argonaut Insurance Company [*3]  (“Argonaut”) appeals from an order of the district court (Wolford, J.) remanding this breach-of-bond action, brought by LeChase …
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Discovery Violations Should Ordinarily Be Punished Under Rules 26(g) And 37, Not Inherent Power — Sanctions Should Be Tailored Because Violations Occur Along A Continuum of Fault — Three-Factor Test to Determine Whether Sanctions For Non-Production Are Apt (Second Circuit) — Producing Some Relevant Documents Is No Excuse For Not Producing All/Producing Drafts Does Not Excuse Nonproduction of Finals (Good Quote) — There Is No Carve-Out From The Duty To Produce For Publicly-Filed Information (Good Quote) — Duty To Produce Includes Subsequently-Created Documents (Documents Created After Discovery Response) — Factors In Choosing The Appropriate Sanction — Purposes Of Discovery Sanctions — Proportionality: Need for Sanction to Be Tailored to Remedy the Prejudice Suffered

AU New Haven, LLC v. YKK Corp., 2023 U.S. Dist. LEXIS 49913, 2023 WL 2612204 (S.D.N.Y. Mar. 23, 2023): INTRODUCTION Over the course of the long history of this case, Plaintiffs maintained that they held ...
AU New Haven, LLC v. YKK Corp., 2023 U.S. Dist. LEXIS 49913, 2023 WL 2612204 (S.D.N.Y. Mar. 23, 2023): INTRODUCTION Over the course of the long history of this case, Plaintiffs maintained that they held patents issued in both …
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Matter of First Impression vs. Baseless Position (Good Quote)

Reorganized Debtors. SC SJ Holdings, LLC v. Pillsbury Winthrop Shaw Pittman LLP ( In re SC SJ Holdings, LLC), 2023 U.S. Dist. LEXIS 48320 (Bankr. D. Del. March 22, 2023) Debtors argue that § 1144 "is not applicable to" requests for relief where pu ...
Reorganized Debtors. SC SJ Holdings, LLC v. Pillsbury Winthrop Shaw Pittman LLP ( In re SC SJ Holdings, LLC), 2023 U.S. Dist. LEXIS 48320 (Bankr. D. Del. March 22, 2023) Debtors argue that § 1144 “is not applicable to” requests…
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The Answer to a Question of First Impression Is Rarely “Plain”

United States v. Rice, 2023 U.S. App. LEXIS 6582 (7th Cir. Mar. 20, 2023) (“The answer to a question of first impression is rarely ‘plain’ ... and nothing about the narrow legal question here takes it outside the realm of reasonable debate”) (plai ...
United States v. Rice, 2023 U.S. App. LEXIS 6582 (7th Cir. Mar. 20, 2023) (“The answer to a question of first impression is rarely ‘plain’ … and nothing about the narrow legal question here takes it outside the realm of…
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Administrative Closure of A Case Is A Tool of Docket Management Outside the Federal Rule of Civil Procedure Used to Shelve A Pending But Dormant Matter —District Court Order Administratively Closing A Case Is Not An Appealable Final Order, But An Order Denying A Motion to Reopen Is — “A Case Is Deemed To Be Final When A District Court Disassociates Itself From A Case” (Good Quote) — Fed. R. Civ. P. 6(b)(1)(B) Does Not Confer Authority to Dismiss A Case; Other Power Must Be Invoked — Rule 41(b) Dismissal: Sixth Circuit Factors

Rodriguez v. Hirshberg Acceptance Corp., 2023 U.S. App. LEXIS 6006 (6th Cir. Mar. 14, 2023): District courts, it is broadly accepted, enjoy tremendous freedom in managing their caseload. That flexibility stems in part from the fact that no two dist ...
Rodriguez v. Hirshberg Acceptance Corp., 2023 U.S. App. LEXIS 6006 (6th Cir. Mar. 14, 2023): District courts, it is broadly accepted, enjoy tremendous freedom in managing their caseload. That flexibility stems in part from the fact that no two district…
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§ 1927 Sanctions Available for Needlessly Prolonging Deposition Through Irrelevant Questions Even If Movant Did Not Move for A Protective Order under Rule 30 — No § 1927 Sanctions Imposable on Law Firms (Majority Rule – Circuit Split) — “Whether A Defendant Offers To Settle A Case Is Of Questionable Value In Determining Whether The Plaintiff’s Claims Are Frivolous” (Good Quote)

Vaughan v. Lewisville Indep. Sch. Dist., 2023 U.S. App. LEXIS 5684, 2023 WL 2423494 (5th Cir. Mar. 9, 2023): In this case, the district court awarded fees against Vaughan’s attorneys after finding that they unreasonably and vexatiously multiplied ...
Vaughan v. Lewisville Indep. Sch. Dist., 2023 U.S. App. LEXIS 5684, 2023 WL 2423494 (5th Cir. Mar. 9, 2023): In this case, the district court awarded fees against Vaughan’s attorneys after finding that they unreasonably and vexatiously multiplied the…
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Spoliation of Tangible Evidence: Sixth Circuit Standards – Harsh Sanctions Typically Imposed Only for Culpability Greater Than Negligence – Sanction of Summary Judgment Properly Denied for Negligent Spoliation by Hospital’s Document Storage Company Years Before Plaintiff Ever Requested His Medical Records

Frank v. Good Samaritan Hosp., 2023 U.S. App. LEXIS 6265 (6th Cir. Mar. 15, 2023) (unpublished): Jahmir Frank sued Good Samaritan Hospital for medical malpractice. But because Good Samaritan's contractor destroyed his medical records, Frank ...
Frank v. Good Samaritan Hosp., 2023 U.S. App. LEXIS 6265 (6th Cir. Mar. 15, 2023) (unpublished): Jahmir Frank sued Good Samaritan Hospital for medical malpractice. But because Good Samaritan’s contractor destroyed his medical records, Frank’s claim was arguably more difficult …
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Sanctions: Vexatious Litigant Injunctions in District Court (5th Circuit Standards) — Vexatious Litigant Injunctions in Court of Appeals: Inherent Power and Statutory (All Writs Act) Authority — FRAP 38 Monetary Sanctions: Frivolousness Need Not Be Intentional, Can Be Inadvertent — RICO: Plaintiff Cannot Plead Actual Reliance on Assertion He Knew at The Time Was False; Actual Reliance Unjustifiable as A Matter of Law; Common-Law Fraud Not A Predicate Act

Nix v. Major League Baseball, 2023 U.S. App. LEXIS 6319, 2023 WL 2534977 (5th Cir. Mar. 16, 2023): ...
Nix v. Major League Baseball, 2023 U.S. App. LEXIS 6319, 2023 WL 2534977 (5th Cir. Mar. 16, 2023): *1 This appeal involves the latest in a series of unsuccessful lawsuits2 by Neiman Nix, proceeding pro se, who sued…
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Supplemental vs. New Expert Report: If Report Asserts New Analysis Or Conclusions [Based on Information Available at Time of Original Report], It Is Not Supplemental within Rule 26(e)(2) — Rule 37(c)(1) and Rule 16(f) Exclusion: Four Factors (5th Circuit Test) — Sham Affidavit Doctrine Applies Only to Summary Judgment Affidavit That Contradicts Prior Deposition Testimony — Note: Court Fails to Address Rule 26(e)(1)(A) (Here, The New Opinion Was “Otherwise … Made Known to The Other Parties During The Discovery Process” Because It Was Inquired About At Deposition — See The Temptation to Depose Every Expert, 40 Litigation, No. 2 at 35 (Winter 2014)

Majestic Oil, Inc. v. Certain Underwriters at Lloyd's, 2023 WL 2549892 (5th Cir. Mar. 17, 2023) (unpublished): PER CURIAM:* Majestic Oil, Inc. v. Certain Underwriters at Lloyd's, 2023 WL 2549892 (5th Cir. Mar. 17, 2023) (unpublished): This is a first-party insurance case. Majestic Oil, Inc. asserts th ...
Majestic Oil, Inc. v. Certain Underwriters at Lloyd’s, 2023 WL 2549892 (5th Cir. Mar. 17, 2023) (unpublished): PER CURIAM:* Majestic Oil, Inc. v. Certain Underwriters at Lloyd’s, 2023 WL 2549892 (5th Cir. Mar. 17, 2023) (unpublished): This is a…
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Recklessness Sufficient for § 1927 Sanctions in 9th Circuit (Circuit Split) — Mere Delay of 19 Days in Producing Prior Settlement Agreement Among the Parties “Unreasonably Lengthened the Proceedings” — Sound Dissent

Lozano v. Cabrera, 2023 U.S. App. LEXIS 5394 (9th Cir. Mar. 7, 2023) (2-1 decision; unpublished): MEMORANDUM* Plaintiff appeals the district court’s imposition of sanctions under
Lozano v. Cabrera, 2023 U.S. App. LEXIS 5394 (9th Cir. Mar. 7, 2023) (2-1 decision; unpublished): MEMORANDUM* Plaintiff appeals the district court’s imposition of sanctions under Federal Rule of Civil Procedure 11 and 28 U.S.C. § 1927. Because…
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Recent Posts

RICO: (1) Victim vs. Perpetrator Enterprises — (2) § 1962(b): Elements of a Violation — (3) Meaning of “Interest” and “Control” in § 1962(b) — (4) The Defendant in a § 1962(b) Action Need Not Be an Enterprise; The Victim Must Be An Enterprise — (5) Acquisition/Maintenance Injury Required (6) Aiding and Abetting Liability under RICO

Rule 11 Sanctions: Request for Bill of Particulars re Sanctions Proceeding Reviewed for Abuse of Discretion — Court’s Discretion Narrows As Severity of Sanction Increases OR When It Initiates the Sanction Proceeding Itself — Particularly Strict Abuse of Discretion Standard Applied — “Rule 11 Does Not License a District Court to Sanction Any Action by an Attorney or Party That It Disapproves of” (Good Quote) — Failure to Provide Identify Specific Pleading and Detail Specific, Objectionable Conduct within that Pleading Violates Due Process — Failure to Provide Notice That Most Severe Sanction May Be Imposed Violates Due Process — Failure to Provide Notice That “Scarlett Letter Sanction” (Mandatory Circulation of Sanctions Order) Or Other Sanction That Could Leave Indelible Imprint on Career Might Be Imposed Violates Due Process — Notice That Law Firm Might Be Sanctioned Insufficient to Afford Notice to Firm Lawyer and Managing Partner That He Might Be Sanctioned — Refusal to Impose Additional Sanction Until Impact of Other Imposed Penalties (Not Sanctions) Ascertained to See Whether Sanction Needed

Rule 37(c)(1) Sanctions: (1) Exclusion of Expert Testimony Reviewed for Abuse of Discretion Even When It Results in Summary Judgment — (2) Whether Physicians Must File 26(a)(2)(B) Report Depends on Whether They Formed Their Opinions for Litigation Or in the Course of Medical Treatment — (3) Party Seeking to Avoid Exclusion of Its Expert for Noncompliance with Rule 26 Bears Burden of Showing Harmlessness or Substantial Justification — (4) Expert Report Subject to Exclusion If It Is Conclusory and Does Not Meet the Level of Rigor Required by Rule 26(a)(2)(B)

RICO: The Statute Defines Enterprise Broadly, “But That Breadth Is Not Without Limit” (Good Quote) — Enterprise Inadequately Pled Where Plaintiffs Fail to Name the Common Purpose, Explain How the Relationships Among the Defendants Allowed Them to Advance That Purpose, Or Specify the Period of Time Sufficient to Achieve That Purpose — In a Particular Case, the Pattern of Racketeering May Be Sufficient to Infer the Existence of an Association-in-Fact Enterprise, But Pattern Does Not Necessarily Establish Enterprise — A RICO Conspiracy May Exist Regardless of Whether the Substantive RICO Violation Is Consummated, But the Substantive Violation Must Be Adequately Pled

RICO: (1) Claim Accrued When Plaintiff Suffered, and Was Aware of, Her Injury — Overt Retaliation in Her Employment As A Result of Reporting Another Employee’s Sexual Misconduct — Not When a Report Confirming that Misconduct Later Became Public; (2) Inhouse Lawyer’s Conclusion No Sexual Misconduct Occurred Is a Mere Expression of a Legal Conclusion, Not Deception Warranting SOL Reprieve Due to Equitable Tolling or Fraudulent Concealment — Plaintiff Exhibited Lack of Diligence in Failing to Consult Own Counsel or Challenge Inhouse Counsel’s Conclusion; (3) Causation: Plaintiff Must Prove Her Injuries Were Directly Caused by the Predicate Acts — (4) Concealment of Report Commissioned by Employer Directly Harmed Employer (by Exposing It to Liability) and Victims of Sexual Misconduct, and Only Indirectly Harmed Plaintiff Who Suffered Retaliation in Her Employment for Reporting the Misconduct

RICO: Without Injury to Business or Property, Injury Resulting from RICO Violation Is Not Actionable under RICO — Meaning of “Property” in § 1964(c) — Meaning of “Business” in § 1964(c) — Mere “Expectancy Interests” ≠ Business or Property — Loss of NCAA Eligibility = Loss of a Status, Not Loss of Property — Pecuniary Losses (Here, Attorney’s Fees) Flowing from a Non-Cognizable Injury Are Not Recoverably via RICO

RICO: Enterprise Not Sufficiently Distinct from Defendant Where Enterprise Allegedly Consisted of the Defendant Corporation, Corporate Employees, Their Counsel and “Friends”

FRAP 38 Sanctions Should Not Lightly Be Awarded on the Ground That an Incorrect Argument Was Frivolous — “An Appeal Can Be Weak, Indeed Almost Hopeless, Without Being Frivolous” (Good Quote) — There Must Be “No Legitimate Basis for Pursuing the Appeal” (Good Quote)

Severe Emotional Distress and Trauma ≠ RICO Injury — Parents’ Voluntary Financial Support of Adult Daughter Who Was Forced to Sign Over Her Annuity in Violation of RICO Not Proximately Caused by RICO Violation — Injury Is Derivative, Not Direct (Intimation of Different Result if Financial Support Required by Law) — RICO Injury Is Requirement for Statutory Standing (12(b)(6) Issue), Not Constitutional Standing (12(b)(1) Issue)

RICO — Neither Filing a Complaint Nor Issuing a Press Release Constitutes Wire Fraud — Litigation Privilege Is Absolute and Bars All Tort Claims Other Than Malicious Prosecution — Abuse of Process Claim Barred (California Law)

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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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