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

Sanctions — Conditional Payment of Monetary Award Prevents Mootness — Contempt Sanction — Payment into Court Escrow Account — Court Can Declare Effective Relief By Ordering That The Sum Paid Be Returned

In re Sealed Case, 2023 U.S. App. LEXIS 20733 (D.C. Cir. July 18, 2023): Pan, Circuit Judge:* The district court issued a search warrant in a criminal case, directing appellant ...
In re Sealed Case, 2023 U.S. App. LEXIS 20733 (D.C. Cir. July 18, 2023): Pan, Circuit Judge:* The district court issued a search warrant in a criminal case, directing appellant Twitter, Inc. (“Twitter”) to produce information to the government …
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Fraud on the Court

Nat’l Oilwell Varco, LP v. Auto-Dril, Inc., 68 F.4th 206 (5th Cir. 2023): “To establish fraud on the court, ‘it is necessary to show an unconscionable plan or scheme which is designed to improperly influence the court in its decision.’ ”
Nat’l Oilwell Varco, LP v. Auto-Dril, Inc., 68 F.4th 206 (5th Cir. 2023): “To establish fraud on the court, ‘it is necessary to show an unconscionable plan or scheme which is designed to improperly influence the court in its decision.’…
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Inherent Power Sanctions – Extrajudicial Misconduct: 1. Unilaterally obtaining $300 million arbitration award, absent an arbitration agreement or notice to adversary, is sanctionable even though it precedes commencement of bad faith attempt to confirm award in federal court. 2. District Court retained jurisdiction to rule on sanctions motion filed prior to notice of appeal of decision vacating arbitration award. 3. FRAP 38 appellate sanctions denied for failure to make separate motion.

Matios v. City of Loveland, 2023 U.S. App. LEXIS 15749 (10th Cir. June 23, 2023) (unpublished)
Matios v. City of Loveland, 2023 U.S. App. LEXIS 15749 (10th Cir. June 23, 2023) (unpublished) Eyoel-Dawit Matios, proceeding pro se, appeals from the district court’s order imposing monetary sanctions under its inherent powers. Exercising jurisdiction under 28 U.S.C. § …
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Rule 11 and Inherent Power Sanctions for (1) Filing Brief Generated by AI (ChatGPT) Filled with Fake and Nonsensical Cases, (2) Failing to Confirm the Authenticity of the Cases, (3) Failing to Make Any Inquiry to Determine If the Assertions of Law Were Correct, (4) Advocating for The Fake Cases After Being Informed by Adversary That the Cases Could Not Be Found, (5) Lying to the Court About Why Continuance Needed and Role of AI in Research — Conscious Avoidance Sufficient to Prove Knowledge —$5,000 Non-Compensatory Penalty Assessed — Offenders Must Notify Client and Judges Wrongly Named in the Fake Cases—“Nothing Inherently Improper About Using a Reliable Artificial Intelligence Tool for Assistance”

Mata v. Avianca, Inc., 2023 U.S. Dist. LEXIS 108263 (S.D.N.Y. June 22, 2023) Rule 11 and Inherent Power Sanctions for (1) Filing Brief Generated by AI (ChatGPT) Filled with Fake and Nonsensical Cases, (2) Failing ...
Mata v. Avianca, Inc., 2023 U.S. Dist. LEXIS 108263 (S.D.N.Y. June 22, 2023) Rule 11 and Inherent Power Sanctions for (1) Filing Brief Generated by AI (ChatGPT) Filled with Fake and Nonsensical Cases, (2) Failing to Confirm the Authenticity of …
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Inherent Power Sanctions — Clear-and-Convincing-Evidence Required (10th Circuit) — Evidence Rules Do Not Govern Sanctions Proceedings — Civil Rules Do Not Recognize a “Motion to Reconsider” As Opposed to Rule 59(e) Motion to Alter or Amend a Judgment, Which Requires “Manifest Error” or New Evidence — Abuse of Discretion Review (But Invocation of Inherent Power Is Reviewed De Novo (See Dissent)) — For Reversal, Appellate Court Must Be “Firmly Convinced … the District Court Erred in Finding … It Was Highly Probable That the [Offender] Acted in Bad Faith“ — Extrajudicial Misconduct: Witness Intimidation by Commencing Multimillion Dollar Arbitration Against Witness — Inherent Power Sanction Within District Court’s Jurisdiction When Acting Pursuant to a Strictly Limited Remand (Dissent Disagrees) — Sanctions for Arbitration Conduct Permissible Where Arbitration Threatened Court’s Proceedings — Permissible for Court to Evaluate Frivolousness of Claims in the Arbitration — Frivolousness, Alone, May Not Be Enough — Due Process Satisfied by Show-Cause Order — Monetary Award Was Civil Because It Was Limited to Fees Incurred in Federal Court Seeking Sanctions, Not Conduct in Arbitration— Fact Witness Intimidation Fails Does Not Negate Causation of Costs Incurred in Pursuing Sanctions — Failure to Reduce Requested Fees Does Not Mean Court Failed to Exercise Discretion

Becker v. Ute Indian Tribe, 2023 U.S. App. LEXIS 20430 (10th Cir. Aug. 8, 2023) ORDER AND JUDGMENT* *1 Lynn Becker and the Ute Indian Tribe have been mired in litigation for nearly two decades. Mr. Becker’s relationship with the Tribe began in 2004, when the Tribe hired him to help ...
Becker v. Ute Indian Tribe, 2023 U.S. App. LEXIS 20430 (10th Cir. Aug. 8, 2023) ORDER AND JUDGMENT* *1 Lynn Becker and the Ute Indian Tribe have been mired in litigation for nearly two decades. Mr. Becker’s relationship with…
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Rule 37 Sanction of Dismissal for Repeatedly Obstructing 30(b)(6) Deposition, Flouting Court Orders: “[A] Splash of Proper Conduct Amidst an Expansive Sea of Impropriety Is Insufficient to Save [a Party] from Sanctions” — CFPB Enforcement Action Dismissed

Consumer Fin’l Prot. Bur. v. Brown, 69 F.4th 1321 (11th Cir. 2023); The Consumer Financial Protection Bureau (“CFPB”) is not exempt from the rules of discovery. Nonetheless, the CFPB tried to bring a wide-ranging civil lawsuit against 18 defendants without ever being deposed. When the district court ordered the CFPB to sit for Rule 30(b)(6) depositions, the CFPB doubled do ...
Consumer Fin’l Prot. Bur. v. Brown, 69 F.4th 1321 (11th Cir. 2023); The Consumer Financial Protection Bureau (“CFPB”) is not exempt from the rules of discovery. Nonetheless, the CFPB tried to bring a wide-ranging civil lawsuit against 18 defendants without…
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Rule 37(c)(1) Sanctions — Award of Excess Expenses Incurred in Deposing Late-Disclosed Expert Witness on Eve of Trial — Argument That Late Disclosure = Harmless Error Because Same Expenses Would Have Been Incurred Earlier Rejected — Late Disclosure “Made The Matter Much More Urgent, Time Consuming And Expensive As Trial Loomed Less Than A Month Away”

McDowell v. Livonia Hotel Bus., Inc., 2023 U.S. App. LEXIS 17819 (6th Cir. July 11, 2023): This civil suit arises out of an armed robbery that took place at a motel in Livonia, Michigan. Plaintiffs, Raymond McDowel ...
McDowell v. Livonia Hotel Bus., Inc., 2023 U.S. App. LEXIS 17819 (6th Cir. July 11, 2023): This civil suit arises out of an armed robbery that took place at a motel in Livonia, Michigan. Plaintiffs, Raymond McDowell and Taj Dorsey,…
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Rule 37 and Inherent Power Sanctions – While Sanctions Are Reviewed for Abuse of Discretion, District Court’s Invocation of Its Inherent Power Is Reviewed De Novo — Due Process Violated by Failure to Apprise Individuals that They Were Personally at Risk of Monetary Sanctions—That Sanctions Motion Sought Sanctions Against Corporation “Or Others” Insufficient — Post-Sanctions Opportunity to Be Heard Insufficient — Rule 37 Sanctions Must Be Both “Just” and “Related to the Particular ‘Claim’” — Factors Governing Litigation-Ending Sanctions (5th Circuit) — 6. What Is a “Litigation-Ending” Sanction Is A “Practical” Determination and Broader Than Dismissal with Prejudice and Default Judgment —6. What Is a “Litigation-Ending” Sanction Is A “Practical” Determination and Broader Than Dismissal with Prejudice and Default Judgment — What Is a “Litigation-Ending” Sanction Is A “Practical” Determination and Broader Than Dismissal with Prejudice and Default Judgment — Recklessness Insufficient for Case-Ending Sanction (Bad Faith Required) — Rule 37 Authorizes Joint-and-Several Liability on a Party and Its Agents —Attorney’s Fee Award Must be Calculated Using the Lodestar Process

CEATS, Inc. v. TicketNetwork, Inc., 71 F.4th 413 (5th Cir. 2023):  Opinion This consolidated appeal concerns the injunctive and monetary sanctions that the district court imposed after a company and three individuals violated the court’s protective order. The company and the individuals challenge the s ...
CEATS, Inc. v. TicketNetwork, Inc., 71 F.4th 413 (5th Cir. 2023):  Opinion This consolidated appeal concerns the injunctive and monetary sanctions that the district court imposed after a company and three individuals violated the court’s protective order. The company and…
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Trump Lawyers’ Sanctions Case in Sixth Circuit: On Detailed Analysis, Several Sanctions Overturned Or Curtailed — Detailed Precis Below

King v. Whitmer, 71 F.4th 511 (6th Cir. 2023) Key Points  (full opinion follows) Rule 11 Sanctions:  Political Speech Outside Courtroom No Basis for Improper Purpose Inference Where It Does Not Evidence Improper Purpose Such As Harassment Or Delay — Contestin ...
King v. Whitmer, 71 F.4th 511 (6th Cir. 2023) Key Points  (full opinion follows) Rule 11 Sanctions:  Political Speech Outside Courtroom No Basis for Improper Purpose Inference Where It Does Not Evidence Improper Purpose Such As Harassment Or Delay — …
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Rule 11 — Improper Purpose — Even If Paper Filed Not Only to Vindicate Rights But Also for Some Other Purpose, Sanctions Inappropriate Unless the Other Purpose Is Undertaken in Bad Faith and Is So Excessive As to Eliminate A Proper Purpose

Columbia Gas Transmission, LLC v. Haas, 2023 U.S. App. LEXIS 19300 (4th Cir. July 27, 2023) (unpublis ...
Columbia Gas Transmission, LLC v. Haas, 2023 U.S. App. LEXIS 19300 (4th Cir. July 27, 2023) (unpublished) PER CURIAM: *1 Affirmed by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit. In 2017, Columbia Gas Transmission…
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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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