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 — Interaction of Inherent Power & Rule 15 — Denial of Timely Motion to Amend Complaint May Be an Appropriate Exercise of Inherent Power

Cole v Rich, 2015 U.S. App. LEXIS 14265 (11th Cir. Aug. 1, 2015): Plaintiff Joseph Johnson Cole, proceeding in forma pauperis and through appointed counsel, appeals the dismissal of his 42 U.S.C. § 1983 complaint. The district court sua sponte dismissed Cole's complaint with prejudice as frivolous, pursuant to 28 U.S.C. § 1915(e ...
Cole v Rich, 2015 U.S. App. LEXIS 14265 (11th Cir. Aug. 1, 2015): Plaintiff Joseph Johnson Cole, proceeding in forma pauperis and through appointed counsel, appeals the dismissal of his 42 U.S.C. § 1983 complaint. The district court sua sponte…
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Rule 11 Sanctions OK for Advocating in Fed. Court Frivolous State Court Complaint — Res Judicata Bar — Rule 38 Inapt for Discretionary Sanctions Review — Frivolous as Argued vs. Frivolous as Filed Appeals

Meyer v. U.S. Bank N.A., 2015 U.S. App. LEXIS 11595 (8th Cir. July 6, 2015): In June 2003, David and Nancy Meyer signed a revolving credit note and revolving credit agreement and later signed a series of term notes and term loan agreements to obtain loans from U.S. Bank to finance their swine production business. In October 2006, the ...
Meyer v. U.S. Bank N.A., 2015 U.S. App. LEXIS 11595 (8th Cir. July 6, 2015): In June 2003, David and Nancy Meyer signed a revolving credit note and revolving credit agreement and later signed a series of term notes and…
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RICO — Extraterritoriality of RICO Aside, No Hobbs Act or Money Laundering Predicates If Misconduct Abroad — Political Question Doctrine Doesn’t Bar Adjudicating Acts of Foreign Sovereign Subject to U.S. Territorial Jurisdiction

Hourani v. Mirtchev, 2015 U.S. App. LEXIS 13342 (D.C. Cir. July 31, 2015): Two Kazakh businessmen claim that the daughter of the President of Kazakhstan extorted hundreds of millions of dollars' worth of their business assets in Kazakhstan. She did so, they claim, with the help of the defendants in this case, Alexander Mirtchev an ...
Hourani v. Mirtchev, 2015 U.S. App. LEXIS 13342 (D.C. Cir. July 31, 2015): Two Kazakh businessmen claim that the daughter of the President of Kazakhstan extorted hundreds of millions of dollars' worth of their business assets in Kazakhstan. She did…
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Appellate Sanctions — FRAP 38: Result Obvious, No Arguable Merit or Shred of Evidence — No Bad Faith Cuts Against Sanctions — §1927: Bad Faith = Recklessly Frivolous Arg. or Meritorious Arg. to Harass or Breach Duty of Candor to Court

Blixseth v. Yellowstone Mountain Club, LLC, 2015 U.S. App. LEXIS 13559 (9th Cir. Aug. 4, 2015): In a recusal motion, Timothy Blixseth and his attorneys hurled [*3]  nineteen accusations of misconduct at a bankruptcy judge who had ruled against Blixseth. In a forty-seven page opinion, the judge found the accusations to be meri ...
Blixseth v. Yellowstone Mountain Club, LLC, 2015 U.S. App. LEXIS 13559 (9th Cir. Aug. 4, 2015): In a recusal motion, Timothy Blixseth and his attorneys hurled [*3]  nineteen accusations of misconduct at a bankruptcy judge who had ruled against Blixseth. …
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Email Authentication — Testimony from (i) Recipient That Deceased Sent Message and (ii) Third Party That He Discussed Substance with Decedent Suffices — No Hearsay Problem when Offered for Effect on the Listener

Meyer v. Callery Conway Mars HV, Inc., 2015 U.S. Dist. LEXIS 937 (W.D. Pa. Jan. 5, 2015): This case centers on allegations that John Meyer was unlawfully discharged by his employer because of his age. The Defendant employer says that Meyer was lawfully fired because he directed the repair of a machine in a way that could have ...
Meyer v. Callery Conway Mars HV, Inc., 2015 U.S. Dist. LEXIS 937 (W.D. Pa. Jan. 5, 2015): This case centers on allegations that John Meyer was unlawfully discharged by his employer because of his age. The Defendant employer says that …
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YouTube Video Offered to Prove Gang Membership Authenticated by Police Gang Expert’s Identification of Defendant’s Use of Gang Signs, Colors & Vocabulary, Tentative Identification of Gang Location, and Contents of Defendant’s Interview

People v. Andrews, 2015 Cal. App. Unpub. LEXIS 3795 (Cal. Ct. App. May 28, 2015): Appellant Michael Andrews was convicted, following a jury trial, of one count of first degree murder in violation of Penal Code section 187, subdivision (a), one count of premeditated attempted murder in violation of Penal Code sections 187 and 664 and o ...
People v. Andrews, 2015 Cal. App. Unpub. LEXIS 3795 (Cal. Ct. App. May 28, 2015): Appellant Michael Andrews was convicted, following a jury trial, of one count of first degree murder in violation of Penal Code section 187, subdivision (a),…
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Experts — Abusive Supplementation of Report — Rule 37(c) Exclusion of New Damages Evidence and Theories That Constituted Not Mere Supplementation But Untimely New Opinion

Munchkin, Inc. v. Playtex Products, LLC, 2015 U.S. App. LEXIS 13424 (9th Cir. July 31, 2015): The district court also acted within its discretion when it determined that Munchkin failed to comply with its obligations under Fed. R. Civ. P. 26 and when it fashioned an exclusion sanction [*3]  pursuant to Fed R. Civ. P. 37. Alth ...
Munchkin, Inc. v. Playtex Products, LLC, 2015 U.S. App. LEXIS 13424 (9th Cir. July 31, 2015): The district court also acted within its discretion when it determined that Munchkin failed to comply with its obligations under Fed. R. Civ. P. …
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Spoliation — In Diversity, Federal Law Governs Adverse Inference — Factors (8th Cir.) — Since a Purpose Is to Shift Burden to Spoliator, No Instruction Against Defendant’s Insurer Where Defendant Has Assigned Rights to Plaintiff

Burris v. Gulf Underwriters Ins. Co., 2015 U.S. App. LEXIS 8707 (8th Cir. May 27, 2015): Lowell and Joyce Burris (jointly "Burris") appeal the district court's1denial of their motion for a new trial following a jury verdict in favor of Gulf Underwriters Insurance Company ("Gulf"). We affirm. I. < ...
Burris v. Gulf Underwriters Ins. Co., 2015 U.S. App. LEXIS 8707 (8th Cir. May 27, 2015): Lowell and Joyce Burris (jointly "Burris") appeal the district court's1denial of their motion for a new trial following a jury verdict in favor of…
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Inherent Power Sanctions — Standards for Bad Faith Are Necessarily Stringent, and a Party Should Not Be Penalized for Maintaining an Aggressive Litigation Position (Good Quote) — How Frivolous Must an Argument Be to Suggest Bad Faith?

Fortune v. Taylor Fortune Grp, LLC, 2015 U.S. App. LEXIS 13788 (5th Cir. Aug. 4, 2015): We next consider Fortune Louisiana's motion for sanctions. "[F]ederal courts possess inherent power to assess attorney's fees and litigation costs when the losing party has 'acted in bad faith, vexatiously, wantonly ...
Fortune v. Taylor Fortune Grp, LLC, 2015 U.S. App. LEXIS 13788 (5th Cir. Aug. 4, 2015): We next consider Fortune Louisiana's motion for sanctions. "[F]ederal courts possess inherent power to assess attorney's fees and litigation costs when the losing party …
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RICO — More Than 2 Years = Substantial Period of Time & Satisfies Closed-Ended Continuity — Pattern Doesn’t Require Multiple Schemes As Long As the Predicate Acts Aren’t Isolated or Sporadic

Kearney v. Foley & Lardner, LLP, 2015 U.S. App. LEXIS 10279 (9th Cir. June 18, 2015): Plaintiff-Appellant Joan Brown Kearney appeals the district court's dismissal of her [*2]  42 U.S.C. § 1983; Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961, et seq. ("RICO"); and RICO conspir ...
Kearney v. Foley & Lardner, LLP, 2015 U.S. App. LEXIS 10279 (9th Cir. June 18, 2015): Plaintiff-Appellant Joan Brown Kearney appeals the district court's dismissal of her [*2]  42 U.S.C. § 1983; Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.…
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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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