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

Post-Dismissal So-Ordering of Settlement Agreement Ineffective to Retain Jurisdiction — Court Must Incorporate Settlement in an Order or Expressly Retain Jurisdiction — Rule 60(b) Fix? — Otherwise, Court of Claims If vs. US

Hendrickson v. United States, 2015 U.S. App. LEXIS 11186 (2d Cir. June 30, 2015): This appeal arises from an attempt to enforce a settlement agreement signed by Plaintiffs-Appellees William and Patricia Hendrickson, the United States, and the district court more than thirty years ago. In 1985, the district court clearly indicated its ...
Hendrickson v. United States, 2015 U.S. App. LEXIS 11186 (2d Cir. June 30, 2015): This appeal arises from an attempt to enforce a settlement agreement signed by Plaintiffs-Appellees William and Patricia Hendrickson, the United States, and the district court more…
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Inherent Power Sanctions — $2.7 Million in Fees for Discovery Abuse: Withholding Test Results Absent Order Compelling Production — Is Award Compensatory If Not Strictly Linked to Misconduct? (Due Process) — Divided 9th Cir. Panel

Haeger v. Goodyear Tire & Rubber Co., 2015 U.S. App. LEXIS 12484 (9th Cir. July 20, 2015) [Note: Opinion updated in 2016 - 813 F3d 1233 (9th Cir. 2016)]: On November 8, 2012, after a six-hour evidentiary hearing, and after considering the record in the case and fifteen briefs filed by the potentially-sanctionable part ...
Haeger v. Goodyear Tire & Rubber Co., 2015 U.S. App. LEXIS 12484 (9th Cir. July 20, 2015) [Note: Opinion updated in 2016 – 813 F3d 1233 (9th Cir. 2016)]: On November 8, 2012, after a six-hour evidentiary hearing, and after …
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Opinions in Expert Report Attached to Complaint Disregarded on Dismissal Motion — RICO: Difficulties Pleading Wage Depression Due to Hiring of Undocumented Workers: Defining Market, Alleging Injury

Varela v. Gonzales, 2014 U.S. App. LEXIS 23293 (5th Cir. Dec. 11, 2014): Appellants Jaime Varela and Yesica Wiegert bring this civil action alleging RICO violations against their former employers, Appellees David Benitez Gonzales, Ana Cristina Benitez, Intelligent Mexican Marketing, Inc., and Marketing and Inventory Management ...
Varela v. Gonzales, 2014 U.S. App. LEXIS 23293 (5th Cir. Dec. 11, 2014): Appellants Jaime Varela and Yesica Wiegert bring this civil action alleging RICO violations against their former employers, Appellees David Benitez Gonzales, Ana Cristina Benitez, Intelligent Mexican Marketing, …
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Sanctions — Resort to Inherent Power Error Where Rule 11 Applies — Complaint Barred by Settlement Agreement Violates Rule 11 — Failure to Comply with Safe Harbor Forgiven on Theory of Substantial Compliance

United States v. Rogers Cartage Co., 2015 U.S. App. LEXIS 12927 (7th Cir. July 27, 2015): The villages of Sauget and Cahokia, Illinois, located along the east bank of the Mississippi River just south of East St. Louis, are home to a three-and-a half-mile storm water conveyance channel known as Dead Creek. The name is morbid, but fitti ...
United States v. Rogers Cartage Co., 2015 U.S. App. LEXIS 12927 (7th Cir. July 27, 2015): The villages of Sauget and Cahokia, Illinois, located along the east bank of the Mississippi River just south of East St. Louis, are home…
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Digital Photos Automatically Taken by Red Light Traffic Camera Not Subject to Strict Authentication Requirements If Not Enhanced — Are Not Hearsay — Authentication Is Subset of Relevance: Purpose of Evidence Key to Authentication

People v. Goldsmith, 59 Cal. 4th 258, 326 P.3d 239 172 Cal. Rptr. 3d 637 (2014): Defendant was cited for failing to stop at a red traffic light at an intersection located in the City of Inglewood in violation of Vehicle Code section 21453. She was found guilty of the traffic infraction based on evidence of several pho ...
People v. Goldsmith, 59 Cal. 4th 258, 326 P.3d 239 172 Cal. Rptr. 3d 637 (2014): Defendant was cited for failing to stop at a red traffic light at an intersection located in the City of Inglewood in violation of …
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Arbitration — After Granting Motion to Compel, May Court Dismiss or Must It Enter a Stay? — Circuit Split — Second Circuit Holds Dismissal Improper, Confers Right to Appeal That Congress Withheld

Katz v. Cellco P’ship, DBA Verizon Wireless, 2015 U.S. App. LEXIS 13055 (2d Cir. July 28, 2015): In an effort to more efficiently manage their dockets, some district [*2]  courts in this Circuit will dismiss an action after having compelled arbitration pursuant to a binding arbitration agreement between the parties ...
Katz v. Cellco P’ship, DBA Verizon Wireless, 2015 U.S. App. LEXIS 13055 (2d Cir. July 28, 2015): In an effort to more efficiently manage their dockets, some district [*2]  courts in this Circuit will dismiss an action after having compelled …
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Appealability — Collateral Order Doctrine: Factors — Importance of Issue Critical — Types of Orders Within & Outside Doctrine — 1292(a)(1) Jurisdiction: Interpretation vs. Modification of Injunction (Only Latter Appealable)

In re Deepwater Horizon, 2015 U.S. App. LEXIS 12299 (5th Cir. July 15, 2015): In May 2012, BP Exploration & Production Inc. ("BP") and related entities reached a settlement with a class of individuals who suffered economic and property damage after the Deepwater Horizon incident. That settlement agreement establi ...
In re Deepwater Horizon, 2015 U.S. App. LEXIS 12299 (5th Cir. July 15, 2015): In May 2012, BP Exploration & Production Inc. ("BP") and related entities reached a settlement with a class of individuals who suffered economic and property damage …
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Spoliation — Cleaning Up Oily Substance on Which Plaintiff Fell May Support Sanction — Substance Relevant to Claim of Defendant Proprietor/Employer’s Negligence (FELA)

Coale v. Metro North Commuter RR, 2015 U.S. App. LEXIS 11990 (2d Cir. July 13, 2015): Plaintiff William Coale, a former assistant conductor for Metro-North Commuter Railroad Co. ("Metro-North"), appeals from an award of summary judgment in favor of defendant Metro-North on Coale's Federal Employers' Liability Act (&q ...
Coale v. Metro North Commuter RR, 2015 U.S. App. LEXIS 11990 (2d Cir. July 13, 2015): Plaintiff William Coale, a former assistant conductor for Metro-North Commuter Railroad Co. ("Metro-North"), appeals from an award of summary judgment in favor of defendant…
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Text Message Admissible as Spontaneous (Excited) Utterance (803(2)) — Speed with Which Texts Typed May Essentially = Verbalizing — More Texts Sent by Cell Than Voice Minutes Used — Spontaneity of Texts > Other Writings

Commonwealth v Mulgrave, 2015 Mass. LEXIS 472 (Sup. Jud. Court July 13, 2015): In March, 2012, a Superior Court jury convicted the defendant, Craig Mulgrave, of murder in the first degree on the theory of extreme atrocity or cruelty in the stabbing death of his wife, Christina Mulgrave.1 On appeal the defendant asserts that ...
Commonwealth v Mulgrave, 2015 Mass. LEXIS 472 (Sup. Jud. Court July 13, 2015): In March, 2012, a Superior Court jury convicted the defendant, Craig Mulgrave, of murder in the first degree on the theory of extreme atrocity or cruelty in…
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Complaints — A Primer on Shotgun Pleading — Rules 8(a)(2) and 10(b) — Extensive Case Citations on the Four Types of Impermissible Shotgun Pleading, Including Incorporating All Prior Allegations & Counts — Defendants’ Duties

Weiland v. Palm Beach Cnty. Sheriff’s Office, 2015 U.S. App. LEXIS 11750 (11th Cir. July 8, 2015): Nearly one hundred and thirty years ago, one of Georgia's greatest judges described the ideal in pleading:    Pleading is pure statement; just as much as a letter addressed to your sweetheart or ...
Weiland v. Palm Beach Cnty. Sheriff’s Office, 2015 U.S. App. LEXIS 11750 (11th Cir. July 8, 2015): Nearly one hundred and thirty years ago, one of Georgia's greatest judges described the ideal in pleading:    Pleading is pure statement; just as…
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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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