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

(1) § 1927 and Inherent Power Sanctions — Extrajudicial Misconduct After Obtaining Verdict: Filing Lis Pendens Based on False Statements and in Violation of Governing Law, Filing Fraudulent Abstracts of Judgment That Represented They Had Been Court-Issued; (2) Rule 37 Sanctions for Baseless Motion to Compel Required Unless Target Shows That the Motion Was Substantially Justified Or Other Circumstances Make An Award Of Expenses Unjust

Treadway v. Otero, 2024 U.S. App. LEXIS 9321, 2024 WL 1654587 (5th Cir. April 17, 2024) (unpublished): PER CURIAM:* *   Pursuant to 5th Circuit Rule 47.5, the court has determined that this ...
Treadway v. Otero, 2024 U.S. App. LEXIS 9321, 2024 WL 1654587 (5th Cir. April 17, 2024) (unpublished): PER CURIAM:* *   Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and…
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Rule 37 Dismissal Factors (10th Circuit) — Rule 37(d) Sanctions Apply Without Regard to Whether the Court Has Ordered the Delinquent Party to Appear for His, Her or Their Deposition

Yomi v. Becerra, 2024 U.S. App. LEXIS 6101 (10th Cir. Mar. 14, 2024) (unpublished): ORDER AND JUDGMENT* Francis Yomi appeals the district co ...
Yomi v. Becerra, 2024 U.S. App. LEXIS 6101 (10th Cir. Mar. 14, 2024) (unpublished): ORDER AND JUDGMENT* Francis Yomi appeals the district court’s dismissal of his employment discrimination lawsuit as a sanction for discovery misconduct. He also appeals various…
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Rule 37 Dismissal Factors (Sixth Circuit) — Refusal to Answer Deposition Questions on Relevancy Grounds Is Not Valid Rule 30(c)(2) — Pro Se Deponent’s Attendance At Zoom Deposition While Driving A Semi, Refusing to Answer Questions, Inter Alia, Held Contumacious

Hills v. Roble, 2024 U.S. App. LEXIS 6296 (6th Cir. Mar. 15, 2024) (unpublished): AMENDED ORDER Pro se litigant Derrick Hills appeals the denial of his motion for relief from judgment in his civil suit again ...
Hills v. Roble, 2024 U.S. App. LEXIS 6296 (6th Cir. Mar. 15, 2024) (unpublished): AMENDED ORDER Pro se litigant Derrick Hills appeals the denial of his motion for relief from judgment in his civil suit against federal officials involved in…
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Rule 26(a)(1) Disclosures and Rule 37 Preclusion: Rule 26 Does Not Require Disclosure of Legal Theories Underlying Damages Computations Provided Pursuant to 26(a)(1)(A)(i)

Santa Clarita Valley Water Agency v. Whittaker Corp., 2024 U.S. App. LEXIS 8983 (9th Cir. April 15, 2024): Whittaker Corporation ("Whittaker") and the Santa Clarita Valley Water Agency ("SCVWA" or "Agency ...
Santa Clarita Valley Water Agency v. Whittaker Corp., 2024 U.S. App. LEXIS 8983 (9th Cir. April 15, 2024): Whittaker Corporation (“Whittaker”) and the Santa Clarita Valley Water Agency (“SCVWA” or “Agency”) cross-appeal a $68 million judgment in favor of the …
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Rule 37 Sanctions: (1) Forfeiture of Objections to Produce Specific Categories of Documents (Including Tax Returns, Social Media Passwords) as Sanction for Violation of Discovery Order — (2) Default Judgment for Multiple Violations of Discovery Orders — (3) Ninth Circuit’s 5-Factor Test for Dismissal or Default Sanction — (4) Three Additional Factors Considered by Court of Appeals in Assessing Whether Lesser Sanctions Were Adequately Considered — (5) District Court Need Not Recite Each Factor: It Suffices If Record Permits Appellate Court to Apply Them — (6) Public Policy Favoring Disposition of Cases on the Merits Is Not Dispositive Where At Least 4 Factors “Support,” Or 3 Factors “Strongly Support,” Dismissal/Default — (7) And Lends Little Support to A Party Whose Conduct Impedes Adjudication on the Merits — (7) Order to Show Cause Why FRAP 38, § 1927 and Inherent Power Sanctions Should Not Issue for Multiple Misstatements Of Counsel At Oral Argument

Plaintiff-Appellee Transamerica Life Insurance Company ("Transamerica") sued Defendants-Appellants Akop Arutyunyan and his daughter Anahit Arutyunyan1 for allegedly engaging in a conspiracy to defraud Transamerica into paying benefits under a long-term care insurance policy. Concluding that Defendants had ...
Plaintiff-Appellee Transamerica Life Insurance Company (“Transamerica”) sued Defendants-Appellants Akop Arutyunyan and his daughter Anahit Arutyunyan1 for allegedly engaging in a conspiracy to defraud Transamerica into paying benefits under a long-term care insurance policy. Concluding that Defendants had repeatedly failed …
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Electronic Spoliation Sanctions: “Intent to Deprive” in Rule 37(e)(2) Means Willful Destruction of Evidence to Avoid Its Discovery by an Adverse Party — Relevant Circumstantial Evidence in Determining “Intent to Deprive” — Rule 37(e)(2)(C)’s Standards Trump Circuit’s Multi-Factor Test for Determining Whether Dismissal Is Appropriate — No Prejudice Required for 37(e)(2) Sanctions Because Intent to Deprive Creates Inference the Loss of Information Favored the Spoliator

Jones v. Riot Hosp. Grp. LLC, 2024 U.S. App. LEXIS 5251, 95 F.4th 730 (9th Cir. 2024): The dist ...
Jones v. Riot Hosp. Grp. LLC, 2024 U.S. App. LEXIS 5251, 95 F.4th 730 (9th Cir. 2024): The district court dismissed this case under Federal Rule of Civil Procedure 37(e)(2) because of intentional spoliation of electronically stored information (“ESI”)…
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Sanctions and Appealability — Fifth Circuit’s 2023 Survey of Circuit Cases Concerning Whether Judgment of Dismissal As a Sanction Bars Review of Earlier Sanctions Orders Due to Lack of Jurisdiction or Whether The Decision to Review Pre-Dismissal Sanctions Orders Is Prudential

Edge v. TLW Energy Servs., L.L.C., 2023 U.S. App. LEXIS 11130 (5th Cir. May 5, 2023) (unpublished) Per Curiam:* Primarily at issue is whether the district court abused its discretion by s ...
Edge v. TLW Energy Servs., L.L.C., 2023 U.S. App. LEXIS 11130 (5th Cir. May 5, 2023) (unpublished) Per Curiam:* Primarily at issue is whether the district court abused its discretion by sua sponte dismissing this action with prejudice for…
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Sanctions and Appealability — Prior Sanctions Orders Do Not Merge into Judgment of Dismissal Imposed As Sanction under Rules 16(f), 37(b) and 41(b) and Are Unappealable — Courts of Appeal Differ As to Whether This Lack of Reviewability Is Jurisdictional or Discretionary (Jurisdictional in Second Circuit)

Marquez v. Silver, 2024 U.S. App. LEXIS 7206 (2d Cir. Mar. 27, 2024): Plaintiff-Appellant Alexis Marquez, an attorney proceeding pro se, alleged that an Acting New York State Supreme Court Justice harassed her and subjected her to inappropriate b ...
Marquez v. Silver, 2024 U.S. App. LEXIS 7206 (2d Cir. Mar. 27, 2024): Plaintiff-Appellant Alexis Marquez, an attorney proceeding pro se, alleged that an Acting New York State Supreme Court Justice harassed her and subjected her to inappropriate behavior during…
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Sanctions Enforcement and Appealability: Failure to Pay Rule 37 Sanctions and Otherwise Comply with Discovery Orders Leads to Dismissal under Rule 41(b) — Second Circuit Factors for Dismissal for Failure to Prosecute or Comply with Court Orders — Belated, Partial Compliance with Orders Does Not Deprive District Court of Discretion to Dismiss Based on Continuing Non-Compliance with Other Aspects of Orders — “Hopelessly Belated Compliance” with Court Orders Not Accorded Great Weight — Prior Sanctions Orders Do Not Merge into Judgment of Dismissal under Rule 41(b) And Are Unreviewable

Friedman v. Bloomberg, L.P., 2024 U.S. App. LEXIS 7203 (2d Cir. Mar. 27, 2024) (unpublished): SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECRE ...
Friedman v. Bloomberg, L.P., 2024 U.S. App. LEXIS 7203 (2d Cir. Mar. 27, 2024) (unpublished): SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment, entered on October 18, 2022, is AFFIRMED. Plaintiff-Appellant Dan …
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Electronic Spoliation Sanctions: The “Intent to Deprive” Standard in Rule 37(e)(2) Is The Equivalent of Bad Faith in Other Spoliation Contexts — Bad Faith Generally Means Destruction For The Purpose Of Hiding Adverse Evidence — Mere Negligence Is Insufficient Because It Does Not Sustain An Inference of Consciousness of a Weak Case

Thomas v. Walmart, Inc., 2024 U.S. App. LEXIS 8745 (11th Cir. Apr. 11, 2024) (unpublished): PER CURIAM: *1 Steve Thomas, proceeding pro se, appeals the district court’s grant of summary judgment for Walmart, his ...
Thomas v. Walmart, Inc., 2024 U.S. App. LEXIS 8745 (11th Cir. Apr. 11, 2024) (unpublished): PER CURIAM: *1 Steve Thomas, proceeding pro se, appeals the district court’s grant of summary judgment for Walmart, his former employer, on his sexual harassment…
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Recent Posts

Criminal Spoliation Can Be A Due Process Violation — Defendant Must Show That (1) The Evidence Had Exculpatory Value Before It Was Destroyed, (2) Defendant Is Unable to Obtain Comparable Evidence by Reasonable Means, and (3) Bad Faith Failure to Preserve

1) Rule 11 Sanctions: “No First Amendment Exception to a Rule 11 Violation” — “[T]he First Amendment Covers Novel, Nonfrivolous Arguments, But Many Frivolous Arguments Are Also Novel” (Good Quotes) — Frivolous To Continue To Make Rejected Novel Arguments; (2) FRAP 38 Sanctions: District Court In Best Position to Set Sanctions, Attorney’s Fees and Costs

3 Prerequisites for Inherent Power and § 1927 Sanctions in Second Circuit: (1) Bad Faith, (2) Conduct That Is Entirely Without Color [Thus, An Ill-Motivated Colorable Position Appears to Be Protected in the Second Circuit], and (3) Improper Purpose— “To Gain A Strategic Advantage” Is An Improper Purpose — Due Process Satisfied by Opponent’s Motion and Multiple Court Conferences, After Which Target Was Allowed to Submit Additional Letters

Inherent Power Sanctions — Untimeliness as Laches — Laches Properly Applied to Deny Sanctions Motion — Note Waived Defenses to Laches

Rule 37(c)(1) Sanctions: Substantial Justification or Harmless Error (Ninth Circuit Factors) — Erie: When State Supreme Court Has Not Squarely Addressed an Issue, Circuit Must Predict How It Would Rule, Using Intermediate Appellate Decisions, Decisions from Other Jurisdictions, Statutes, Treatises And Restatements for Guidance

(1) Appellate Review of Inherent Power Sanctions (7th Circuit): Factual Findings Reviewed for Clear Error, Choice of Sanction for Abuse of Discretion — 4-Element Test for Reversal; (2) Sanctions and Class Actions: Monetary Sanctions Properly Imposed on Defendants for Improper Communications with Class Members (Represented Parties) — “[I]f The Class And The Class Opponent Are Involved In An Ongoing Business Relationship, Communications From The Class Opponent To The Class May Be Coercive” (Good Quote); (3) Monetary Sanctions under Goodyear v. Haeger: If Same Fact-Gathering Would Have Been Conducted Absent The Misconduct, No But-For Causation — But Only “Rough Justice” Required, “Not Accountant-Like Precision” (Good Quote) — Once Misconduct Is Clear, Time Spent Ferreting It Out Compensable under Goodyear; (4) Goodyear Did Not Overrule Long-Standing Rule That Courts May Impose Modest Civil Monetary Sanctions to Curb Litigation Abuse; (5) Appellate Jurisdiction Lacking Where Sanctioned Attorney Fails to File Notice of Appeal and Lawyer’s Intent to Appeal Not Apparent from Client’s Notice; (5) Rule 11 Improper Purpose — Party May Have Many Purposes for Pursuing Claim — As Long As Claim Is Supported by Good Faith Belief in the Merits, “A Parallel Reason Does Not Violate Rule 11” — To Deny A Motion for Sanctions, The District Court Need Not Address Every Argument: “Arguments Clearly Without Merit Can, And For The Sake Of Judicial Economy Should, Be Passed Over In Silence” (Good Quote); Non-Monetary Sanction on Counsel: Complete Twice The Required Amount Of Professional Responsibility Hours For Her Next Continuing Legal Education Cycle Imposed By The State Bar

(1) Spoliation: Sanctions Are Warranted Only If the Movant Establishes That A Reasonable Trier of Fact Could Find That The Destroyed Evidence Would Support A Claim Or Defense — § 1927 Sanctions: “Courts Often Refuse to Award Sanctions When Both Parties Contributed to the Waste of Judicial Resources” (Good Quote)

No Sanctions Imposed on Counsel Who Submitted A.I.-Generated Phony Cases Without Checking Them in Good Faith on The Mistaken Assumption They Had Been Provided by Highly Respected Co-Counsel Rather Than His Criminally-Convicted, Disbarred Client — No Sanctions on Client Who Had No Access to LEXIS or Westlaw to Check the Phony Cases and Submitted Them in Good Faith: “It Would Have Been Downright Irrational For Him To Provide Fake Cases For [His Lawyer] To Include In The Motion Knowing They Were Fake —

(1) Electronic Spoliation — Rule 37(e)(2) Dismissal Sanction — Temporal Proximity of Spoliation to Production Due Date = Circumstantial Evidence of Intent; (2) While Discovery Sanctions Are Reviewed For Abuse Of Discretion, Findings Of Fact Related To Discovery Sanctions Are Reviewed For Clear Error; (3) Dismissal under Rule 37(e)(2) Plus Attorney’s Fees under Inherent Power Appropriately Combined [But see 2015 Advisory Committee Note: “New Rule 37(e) … authorizes and specifies measures a court may employ if information that should have been preserved is lost, and specifies the findings necessary to justify these measures. forecloses reliance on inherent authority or state law to determine when certain measures should be used.”]; (4) Compensatory Sanctions under Goodyear v. Haeger Appropriately Include Fees and Costs Resulting from Attempts to Settle Spoliation Motion

(1) FRAP 38 Sanctions Inapt for Appeal That Is Weak — “Borderline Frivolous” — Test Is Whether Appellant Should Have Known the Appeal Had Absolutely No Chance of Success — (2) Lay Opinion Testimony under Rule 701: Nub of Helpfulness Requirement Is to Exclude Testimony When the Witness Is No Better Suited Than the Jury to Assess the Issue; (3) Appeals: No Appeal from Denial of Motion for Judgment As a Matter of Law Unless Appellant Made That Motion Before Case Was Submitted to Jury

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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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