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

§ 1927 Sanctions May Only Be Imposed on Attorneys, Not Law Firms — Circuit Split

Kaass Law v. Wells Fargo Bank, N.A., 2015 U.S. App. LEXIS 15127 (9th Cir. Aug. 27, 2015): In this appeal, Appellant Kaass Law challenges the district court's decision to grant Appellee Wells Fargo's motion for sanctions against it pursuant to 28 U.S.C. § 1927. We hold that 28 U.S.C. § 1927 does not permit the imposit ...
Kaass Law v. Wells Fargo Bank, N.A., 2015 U.S. App. LEXIS 15127 (9th Cir. Aug. 27, 2015): In this appeal, Appellant Kaass Law challenges the district court's decision to grant Appellee Wells Fargo's motion for sanctions against it pursuant to…
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Rule 11 — No Bad Faith, No Sanctions for Contradictory Complaints — OK to Decide “That Devoting Further Resources to Investigating the Alleged [Rule 11 Violation] Was Not Worth the Candle Since the Case Was Already Terminated” (Good Quote)

Hourani v. Mirtchev, 2015 U.S. App. LEXIS 13342 (D.C. Cir. July 31, 2015) (the RICO rulings of this decision are excerpted in a separate post): Rule 11 Sanctions Mirtchev and Krull Corporation cross-appeal the district court's denial of their motion for Rule 11 sanctions. They claim that the plaintiffs reli ...
Hourani v. Mirtchev, 2015 U.S. App. LEXIS 13342 (D.C. Cir. July 31, 2015) (the RICO rulings of this decision are excerpted in a separate post): Rule 11 Sanctions Mirtchev and Krull Corporation cross-appeal the district court's denial of their motion…
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Judicial Notice of Internet Evidence — LEXIS Results, Governmental, Newspaper, Party Websites — Notice Doesn’t Convert 12(b)(6) to Summary Judgment — Improperly Raising New Arguments by Letter after Oral Argument without Permission

Wells Fargo Bank, N.A. v. Wrights Mill Holdings, LLC, 2015 U.S. Dist. LEXIS 115610 (S.D.N.Y. Aug. 31, 2015):  At issue in this interpleader action is whether Wells Fargo Bank, N.A. ("Wells Fargo"), the Trustee responsible for the assets held in a collateralized debt obligation ("CDO"), is obliged, under the terms ...
Wells Fargo Bank, N.A. v. Wrights Mill Holdings, LLC, 2015 U.S. Dist. LEXIS 115610 (S.D.N.Y. Aug. 31, 2015):  At issue in this interpleader action is whether Wells Fargo Bank, N.A. ("Wells Fargo"), the Trustee responsible for the assets held in…
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Rule 37 and Inherent Power Sanctions Not Stayed by Bankruptcy Filing — Judge’s Adverse Rulings ≠ Grounds to Recuse

Coope v. Dallas Police Ass’n, 2014 U.S. App. LEXIS 21663 (5th Cir. Nov. 14, 2014): Jay Sandon Cooper moves for leave to proceed in forma pauperis (IFP) in his appeal of the district court's order compelling him to respond to a postjudgment discovery request by the Dallas Police Association and Glenn White, the order i ...
Coope v. Dallas Police Ass’n, 2014 U.S. App. LEXIS 21663 (5th Cir. Nov. 14, 2014): Jay Sandon Cooper moves for leave to proceed in forma pauperis (IFP) in his appeal of the district court's order compelling him to respond to …
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Contempt Sanctions (Monetary) Not Stayed by Bankruptcy Filing

United States v. Coulton, 2014 U.S. App. LEXIS 22233 (11th Cir. Nov. 25, 2014): A June 2007 indictment in the Southern District of Florida charged Patrick Coulton with a formidable array of drug and money-laundering offenses. Although not admitted to practice in the Southern District of Florida, Emmanuel Roy (now disbarred and ...
United States v. Coulton, 2014 U.S. App. LEXIS 22233 (11th Cir. Nov. 25, 2014): A June 2007 indictment in the Southern District of Florida charged Patrick Coulton with a formidable array of drug and money-laundering offenses. Although not admitted to …
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Judicial Notice of Internet Evidence — Federal Courts May Take Judicial Notice of Related State Court Records on State Court Websites

Two Cases: 1. Ceras v. Janda, 2014 U.S. Dist. LEXIS 175586 (C.D. Cal. Dec. 18, 2014) (“The Court takes judicial notice of Internet records relating to this action in the state appellate courts (available at http://appellatecases.courtinfo.ca.gov) ("state court records"). See Smith v. Duncan, 297 F.3d ...
Two Cases: 1. Ceras v. Janda, 2014 U.S. Dist. LEXIS 175586 (C.D. Cal. Dec. 18, 2014) (“The Court takes judicial notice of Internet records relating to this action in the state appellate courts (available at http://appellatecases.courtinfo.ca.gov) ("state court records"). See…
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Law of the Case Doctrine Is Not Jurisdictional but Discretionary — As Long as Case Is Alive, Court Can Always Revoke Earlier Rulings (Good Quote) — 3 Exceptions to Mandate Rule: New Evidence, New Law, Manifest Injustice

Muecke Co. v. CVS Caremark Corp., 2015 U.S. App. LEXIS 15158 (5th Cir. Aug. 25, 2015): The plaintiffs argue that the law-of-the-case doctrine or, alternatively, the mandate rule prevents the district [*9]  court from reconsidering its previous order denying the defendants' motion to compel arbitration. Th ...
Muecke Co. v. CVS Caremark Corp., 2015 U.S. App. LEXIS 15158 (5th Cir. Aug. 25, 2015): The plaintiffs argue that the law-of-the-case doctrine or, alternatively, the mandate rule prevents the district [*9]  court from reconsidering its previous order denying the…
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Authentication of Internet Evidence — Witness Affidavit Plus Printout Showing URL, Date of Printing or Other Identifying Information — Wayback Machine Printout + Custodian’s Affidavit to Establish Date Material Appeared

SEC v. Berrettini, 2015 U.S. Dist. LEXIS 115963 (N.D. Ill. Sept 1, 2015): The SEC brings an insider trading action against Defendants Morando Berrettini ("Berrettini") and Ralph Pirtle ("Pirtle"). Before the Court are the SEC's motions in limine numbers 7 through 10 [191-94]. For the reasons s ...
SEC v. Berrettini, 2015 U.S. Dist. LEXIS 115963 (N.D. Ill. Sept 1, 2015): The SEC brings an insider trading action against Defendants Morando Berrettini ("Berrettini") and Ralph Pirtle ("Pirtle"). Before the Court are the SEC's motions in limine numbers 7 …
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Counsel Not Sanctionable under 37(c)(1) — Limits of Right to Rely on Inhouse Counsel for 26(a)(1) Disclosures — Due Process Failure Cured by Opportunity to Be Heard on Reconsideration, Where Court Didn’t Apply Heightened Standard of Review

Sun River Energy, Inc. v. Nelson, 2015 U.S. App. LEXIS 15645 (10th Cir. Sept. 2, 2015): James E. Pennington and Stephen E. Csajaghy, former counsel for plaintiff Sun River Energy, Inc. (Sun River) in the underlying proceedings, appeal from a judgment of the district court sanctioning them, jointly and severally, in the amount of $20,3 ...
Sun River Energy, Inc. v. Nelson, 2015 U.S. App. LEXIS 15645 (10th Cir. Sept. 2, 2015): James E. Pennington and Stephen E. Csajaghy, former counsel for plaintiff Sun River Energy, Inc. (Sun River) in the underlying proceedings, appeal from a…
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Jury Trial — Improper Golden Rule Invocation — Fact vs. Legal Testimony by Lawyer — References to Rulings in Opening — Court Not Bound to Interrupt Argument Sua Sponte — Argument Must Be Quite Extreme to Warrant New Trial

Queen v. Schultz, 2015 U.S. Dist. LEXIS 102169 (D.D.C. Aug. 5, 2015): The parties in this lawsuit first met in a hallway at an NBC television studio in January 2008, when the plaintiff, Michael Queen, approached Ed Schultz, the defendant. See May 13, 2015 Tr. at 13, ECF No. 169 (Testimony of Michael Queen). From all outward a ...
Queen v. Schultz, 2015 U.S. Dist. LEXIS 102169 (D.D.C. Aug. 5, 2015): The parties in this lawsuit first met in a hallway at an NBC television studio in January 2008, when the plaintiff, Michael Queen, approached Ed Schultz, the defendant.…
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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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