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

Rule 37(c)(2) Sanctions for Failure to Admit Per Rule 36 (Here, Lack of Legally Cognizable Injury) — Test: Reasonable Belief Responder Might Prevail on Matter Denied

Magnetar Techs. Corp. v. Intamin, Ltd., 2015 U.S. App. LEXIS 16310 (9th Cir. Sept. 14, 2015): III. Rule 37 Sanctions On cross-appeal, Intamin contends that the district court erred in denying its request for attorney's fees and costs under Rule 37. Intamin claims that Magnetar should be san ...
Magnetar Techs. Corp. v. Intamin, Ltd., 2015 U.S. App. LEXIS 16310 (9th Cir. Sept. 14, 2015): III. Rule 37 Sanctions On cross-appeal, Intamin contends that the district court erred in denying its request for attorney's fees and costs under Rule…
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Spoliation — While Duty to Preserve Isn’t Dependent on Preservation Letter, Where One Is Sent and Abided by, No Error to Deny Adverse Inference for Destroying Other Documents Per Customary Retention Policy (11th Cir. — Bad Faith Required)

Hill v Cundiff, 2015 U.S. App. LEXIS 14101 (11th Cir. Aug. 12, 2015): These consolidated appeals involve student-on-student sexual harassment. Jane Doe, an eighth-grade student at Sparkman Middle School, was raped in a bathroom after school officials decided to use her as bait in a sting operation to catch CJC, another eighth-grade st ...
Hill v Cundiff, 2015 U.S. App. LEXIS 14101 (11th Cir. Aug. 12, 2015): These consolidated appeals involve student-on-student sexual harassment. Jane Doe, an eighth-grade student at Sparkman Middle School, was raped in a bathroom after school officials decided to use…
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Mooting Claim by Offer of Judgment That Offers Plaintiff Complete Relief — Procedure under Rule 12(b)(1) Mirrors Summary Judgment Practice under Rule 56 — Plaintiff’s 26(a)(1) Damages Calculation May ≠ Full Post-Discovery Claim

Flores v. ACT Event Servs., Inc., 2015 U.S. Dist. LEXIS 16773 (N.D. Tex. Feb. 11, 2015): 3. Mooting Claims Through Offers of Judgment a. Examples of Rule 12(b)(1) Motions Following Offers of Judgment Federal Rule of Civil Procedure 68 provides defendan ...
Flores v. ACT Event Servs., Inc., 2015 U.S. Dist. LEXIS 16773 (N.D. Tex. Feb. 11, 2015): 3. Mooting Claims Through Offers of Judgment a. Examples of Rule 12(b)(1) Motions Following Offers of Judgment Federal Rule of Civil Procedure 68 provides …
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RICO — No Closed-Ended Continuity If Only One Victim, Even If Acts Committed over Long Period of Time — No Open-Ended If Scheme Has a Clear and Terminable Goal (Which, Here, Was Achieved)

Daedalus Capital LLC v. Vinecombe, 2015 U.S. App. LEXIS 15808 (11th Cir. Sept. 4, 2015): Appellants Daedalus Capital, LLC (Daedalus) and Lockwood Technology Corporation (LTC) appeal the district court's order granting partial summary judgment in favor of Appellees Bradford Vinecombe (Vinecombe), former president of LTC; Bruno Rieg ...
Daedalus Capital LLC v. Vinecombe, 2015 U.S. App. LEXIS 15808 (11th Cir. Sept. 4, 2015): Appellants Daedalus Capital, LLC (Daedalus) and Lockwood Technology Corporation (LTC) appeal the district court's order granting partial summary judgment in favor of Appellees Bradford Vinecombe…
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Spoliation Sanctions — Sixth Circuit Test — To Prove Relevance, Movant Must Show Destroyed Evidence Was of Nature Alleged, Not Just Satisfy Rule 401 — Meaning of Abuse of Discretion

Yoder & Frey Auctioneers, Inc. v. EquipmentFacts, LLC, 2014 U.S. App. LEXIS 24301 (6th Cir. Dec. 22, 2014): Defendant, EquipmentFacts, LLC ("Efacts"), appeals from the judgment entered by the United States District Court for the Northern District of Ohio imposing liability and damages in a civil suit brought by Plain ...
Yoder & Frey Auctioneers, Inc. v. EquipmentFacts, LLC, 2014 U.S. App. LEXIS 24301 (6th Cir. Dec. 22, 2014): Defendant, EquipmentFacts, LLC ("Efacts"), appeals from the judgment entered by the United States District Court for the Northern District of Ohio imposing …
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Sanctions — Barring Litigant from Submitting Evidence at Summary Judgment under Rules 37 and 16(f) for Disobeying Orders and Failing to Attend Scheduled Conferences

Lasisi v. Follett Higher Education Grp., Inc., 2015 U.S. App. LEXIS 142 (7th Cir. Jan. 6, 2015): case ended at summary judgment. Follett moved to strike Lasisi's evidence and statement of facts as a sanction for his failure to answer discovery, as earlier recommended by the magistrate judge. The district judge accepted the recomme ...
Lasisi v. Follett Higher Education Grp., Inc., 2015 U.S. App. LEXIS 142 (7th Cir. Jan. 6, 2015): case ended at summary judgment. Follett moved to strike Lasisi's evidence and statement of facts as a sanction for his failure to answer…
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Sanctions — Dismissal under Rule 37 Is Extreme, Reserved for Flagrant Cases of Bad Faith — 4th Circuit’s 4-Factor Test — Lesser Sanctions Should Be Considered

Kelly v. Suntrust Bank, 2015 U.S. App. LEXIS 124 (4th Cir. Jan. 6, 2015): Freddie J. Kelly appeals the district court's order dismissing with prejudice his action against SunTrust Bank and credit reporting agencies Equifax Information Services LLC, Experian Information Solutions, and TransUnion LLC. The district court dismissed Ke ...
Kelly v. Suntrust Bank, 2015 U.S. App. LEXIS 124 (4th Cir. Jan. 6, 2015): Freddie J. Kelly appeals the district court's order dismissing with prejudice his action against SunTrust Bank and credit reporting agencies Equifax Information Services LLC, Experian Information…
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Former Employee of Adversary as Adverse Party under Rule 611(c)(2)

See Jaffe v. Bank of Am., N.A., 395 Fed. App’x 583, 588–89 (11th Cir. 2010) (“Although Ross left Bank of America four years before the trial commenced, he was a[n] . . .  employee when the alleged misrepresentations may have occurred, and Bank of America's counsel represented him personally throughout the litigation.  Thus, Ross was in fact a ...
See Jaffe v. Bank of Am., N.A., 395 Fed. App’x 583, 588–89 (11th Cir. 2010) (“Although Ross left Bank of America four years before the trial commenced, he was a[n] . . .  employee when the alleged misrepresentations may have…
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No RICO Continuity Where Predicates Are Part of Single, Otherwise Lawful Transaction — Outside Lawyers Don’t Operate / Manage Client — No Liability for Routine Legal Services — Contract Claim in RICO Garb (Good Quotes)

Zastrow v. Houston Auto Imports Greenway Ltd., 2015 U.S. App. LEXIS 9918 (5th Cir. June 12, 2015): Plaintiffs-Appellants Mark Zastrow and his company Heights Autohaus (collectively, "Zastrow") appeal from the district court's grant of summary judgment on their claims under the Racketeer Influenced and Corrupt Organizatio ...
Zastrow v. Houston Auto Imports Greenway Ltd., 2015 U.S. App. LEXIS 9918 (5th Cir. June 12, 2015): Plaintiffs-Appellants Mark Zastrow and his company Heights Autohaus (collectively, "Zastrow") appeal from the district court's grant of summary judgment on their claims under…
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Judicial Notice of Internet Evidence — Governmental vs. Non-Governmental, Including Parties’, Websites — Purpose & Extent of Notice

Gerritsen v. Warner Bros. Entm’t Inc., 2015 U.S. Dist. LEXIS 84978 (C.D. Cal. Jan 30, 2015): On April 29, 2014, Terry T. Gerritsen filed this action against Katja Motion Picture Corporation ("Katja"), New Line Productions, Inc. ("New Line"), and Warner Bros. Entertainment, Inc. ("WB") (collectively, &qu ...
Gerritsen v. Warner Bros. Entm’t Inc., 2015 U.S. Dist. LEXIS 84978 (C.D. Cal. Jan 30, 2015): On April 29, 2014, Terry T. Gerritsen filed this action against Katja Motion Picture Corporation ("Katja"), New Line Productions, Inc. ("New Line"), and Warner…
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Recent Posts

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.”

For An Appeal to Be Timely, A Motion for Reconsideration in The District Court (A Rule 59(e) Motion) Must Be Filed, And Not Just Served within 30 Days of The Decision, to Toll The 30-Day Period for Filing An Appeal

There Is No Good-Faith Defense For Issuing An Overly Burdensome Subpoena

Purposes of Rule 37 and Section 1927 Sanctions

While Rule 11 Doesn’t Apply to Appellate Proceedings (Unless It Has Been Incorporated in Local Appellate Rules), Rule 11 Caselaw Is Looked to for Guidance in Interpreting Applicable Sanctions Powers on Appeal

Rule 11 Sanctions & Appellate Review: Abuse of Discretion Standard Applies Unless Sanctions Are Based Solely (Not Just in Part) on Legal Issues, in Which Case Review Is De Novo

Rule 37(b)(2)(A) Sanctions for Altering Expert’s 26(a)(2)(B) Report — Without the Expert’s Knowledge or Approval — by Converting It from PDF to Word, Changing Headings and Other Formatting, and Omitting a Page of Relevant Text and Appendices, Even Though Expert Testified That The Overall Substance of the Report Was Unchanged — Rule 37(b)(2)(A) Sanctions May Be Reversed If Failure to Comply with Discovery Order Was Due to Misunderstanding or Inability to Comply

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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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