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) Sua Sponte Sanctions (3d Cir.): Reasonableness, Not Bad Faith, Is The Standard — Implicitly Rejecting the 2d Cir.’s Akin-to-Contempt Standard — (2) Sua Sponte Sanctions Require Extra Care Because of The Absence of the 21-Day Safe Harbor — (3) Appealability — Even Absent a Reprimand Or Other Sanction, A Court’s Finding of Sanctionable Conduct Injures A Lawyer’s Reputation Sufficiently to Confer Standing to Appeal — (4) Even Though Intent Is Not Required to Violate Rule 11, It Is Relevant to the Decision Whether to Sanction And, If So, What Sanction to Impose — (5) Rule 11 Imposes a Duty of Candor And Is Violated by Not Only by Misrepresentations But Also by Misleading Statements, Half-Truths, Inconsistencies, Mischaracterizations, Exaggerations, Omissions, Evasions And Failures to Correct Known Misimpressions — (6) Candor Is Critical in Ex Parte and Non-Adversarial Proceedings Where Both Sides Agree — (7) “Mild Sanctions” — Requiring an Apology in Writing And Ordering Better Conduct in Similar Cases in the Future

Wharton v. Superintendent Graterford SCI Phila. Dist. Attorney's Off., 2024 U.S. App. LEXIS 5642, 95 F ...
Wharton v. Superintendent Graterford SCI Phila. Dist. Attorney’s Off., 2024 U.S. App. LEXIS 5642, 95 F.4th 140 (3d Cir. 2024): Courts rely on lawyers’ honesty; lawyers may not mislead them. But the Philadelphia District Attorney’s Office did just that.…
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Expert (702) vs. Lay Opinion (701) Testimony: “The Line Between Expert And Lay Testimony Is Not Always Sharp” (Good Quote) — Owner of New Business Not Allowed to Offer Lay Opinion As to Lost Future Profits Where Basis Extended Beyond Knowledge He Possessed Due to His Position in the Company (His Own Perception) And Beyond The Reasoning Process of an Average Person in Everyday Life — Sandbagging with Late Opinion: “The Proper Function Of Rebuttal Evidence Is To Contradict, Impeach Or Defuse The Impact Of The Evidence Offered By An Adverse Party” (Good Quote) — Where Opinion Being Rebutted Is Not Admitted, There Is Nothing to Rebut —“ The Duty To Supplement Cannot Be Transformed Into A Right To Ambush Just Before Trial” (Good Quote)

Chi. Joe's Tea Room, LLC v. Vill. of Broadview, 2024 U.S. App. LEXIS 4357, 94 F.4th 588 (7th Cir. 2024 ...
Chi. Joe’s Tea Room, LLC v. Vill. of Broadview, 2024 U.S. App. LEXIS 4357, 94 F.4th 588 (7th Cir. 2024): This appeal presents a host of issues arising from an effort to prove lost profits for a business that…
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Right to File Motions, Pleadings, Appeals: Absent Extraordinary Circumstances, Like a History of Litigation Abuse Or Failure to Comply with Sanctions, a Court Has No Power to Prevent a Party from Filing Pleadings, Motions or Appeals — Construing Pre-Motion Letters As Motions OK for Non-Dispositive Motions Or Denial of Dispositive Motions — It Is Also OK If Dispositive Motion Is Predominantly Legal And Complaint Has Substantial Deficiencies — Granting Summary Judgment on Reconsideration of Prior Denial Based on Premotion Letters Only Reversed for Lack of Due Process

Kowalchuck v. Metro. Transp. Auth., 2024 U.S. App. LEXIS 4533 94 F.4th 210 (2d Cir. Feb. 27, 2024): In this case, plaintiff-appellant John Kowalchuck sued his former employer, defendant-appellee Metropolitan Transportation Authority (the “MTA”), under the Federal Employers’ Liability Act (“FELA”),
Kowalchuck v. Metro. Transp. Auth., 2024 U.S. App. LEXIS 4533 94 F.4th 210 (2d Cir. Feb. 27, 2024): In this case, plaintiff-appellant John Kowalchuck sued his former employer, defendant-appellee Metropolitan Transportation Authority (the “MTA”), under the Federal Employers’ Liability Act …
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Appeals: Notice of Appeal (“NOA”) Designating Judgment AND Any Judgment from Pending Post-Trial Motion Becomes Effective When Post-Trial Motion (e.g., Sanctions, Reconsideration) Is Decided BUT Is Effective Only As to the Designated Judgment — To Confer Appellate Jurisdiction Over Decision on Pending Motion. New Or Amended NOA Appealing from That Decision Is Necessary — Sometimes Other Documents Can Confer Appellate Jurisdiction (e.g., Docketing Statement) If Intent to Appeal Is Clear

Wall Guy, Inc. v. FDIC, 2024 U.S. App. LEXIS 6395 (4th Cir. Mar. 18, 2024): *1 ...
Wall Guy, Inc. v. FDIC, 2024 U.S. App. LEXIS 6395 (4th Cir. Mar. 18, 2024): *1 This case originates from a lending relationship between Plaintiffs—Jeffrey Frye and his companies The Wall Guy, Inc., and JR Contractors—and First State Bank (“the…
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§ 1927 and FRAP 46(c) Sanctions for Misrepresenting to Court of Appeals When Party Learned of the “New Evidence” Argued under Fed. R. Civ. P. 60(b)(2) — When a Lawyer Raises a Frivolous Argument with the District Court, and That Issue Is Appealed and Re-Argued to the Court of Appeals by Someone Else, The Original Lawyer Can Be Sanctioned under § 1927 For Multiplying Proceedings — Recklessly Raising Frivolous Argument Satisfies Bad Faith Requirement for § 1927 in 9th Circuit — § 1927 Does Not Apply to Law Firms — § 1927 Applies to All Responsible Lawyers, Not Just Those Appearing of Record Or Licensed to Practice Before Sanctioning Court — Reviewing and Approving Filings by General Counsel or Supervising Attorney Suffices — FRAP 46(c): Violating Rules of Professional Ethics = “Conduct Unbecoming of the Court’s Bar” Violative of FRAP 46(c) — Financial Sanctions and Notifications to State Bars and District Courts

Caputo ex rel. United States of Am. v. Tungsten Heavy Powder, Inc., 2024 U.S. App. LEXIS 6126 (9th Cir ...
Caputo ex rel. United States of Am. v. Tungsten Heavy Powder, Inc., 2024 U.S. App. LEXIS 6126 (9th Cir. Mar. 14, 2024): ORDER Petitioners Global Tungsten & Powders Corp. (GTP) and Gregory Caputo have filed a motion for sanctions against …
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§ 1927 Sanctions: Even If Court Lacks Subject Matter Jurisdiction Over The Merits of a Case, It Retains Jurisdiction to Impose Sanctions — Forfeiture (Failure to Assert Right) vs. Waiver (Intentional Relinquishment of Known Right) — Two Judge Concurrence Finds Strong Textual Argument There Is No Statutory Basis for the Existence of the Virgin Islands Bankruptcy Court

Prosser v Gerber (In re Prosser), 2024 WL 1230148 (3d Cir. Mar. 22, 2024) (unpublished):   Sanctions:  Even If Court Lacks Subject Matter Jurisdiction, It Retains Jurisdiction to Impose Sanctions — Forfeiture (Failure to Assert Right) vs. Waiver (Intentional Relinquishment of Known Right) — Two Judge Concurrence Finds Strong Textual Argument There Is No ...
Prosser v Gerber (In re Prosser), 2024 WL 1230148 (3d Cir. Mar. 22, 2024) (unpublished):   Sanctions:  Even If Court Lacks Subject Matter Jurisdiction, It Retains Jurisdiction to Impose Sanctions — Forfeiture (Failure to Assert Right) vs. Waiver (Intentional Relinquishment …
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FRAP 38 Sanctions: Sixth Circuit Requires That A Party Seeking FRAP 38 Sanctions Must Show Both That An Appeal Lacks Merit And That The Appellant Took The Appeal For An Improper Purpose

Lea v. U.S. Dep't of Agric., 2024 U.S. App. LEXIS 5012 (6th Cir. Feb. 28, 2024) (unpublished): Corey Lea has filed over a dozen lawsuits challenging a bank's foreclosure of his Kentucky farmland. Courts have uniformly dismissed these suits. ...
Lea v. U.S. Dep’t of Agric., 2024 U.S. App. LEXIS 5012 (6th Cir. Feb. 28, 2024) (unpublished): Corey Lea has filed over a dozen lawsuits challenging a bank’s foreclosure of his Kentucky farmland. Courts have uniformly dismissed these suits. But …
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(1) Agreements to Agree — Good Quote: “A Non-Binding Agreement To Negotiate Is Not A Binding Agreement To Close A Deal. When Negotiating Parties Cannot Agree And A Deal Falls Apart, They May Be Disappointed, But There Is No Breach Of Contract.” — (2) Damages for Breach of Covenant Not to Sue = Attorney’s Fees and Costs in Defending — (3) Does the Duty of Good Faith and Fair Dealing Apply to Letters of Intent? Undecided

White Winston Select Asset Funds, LLC v. Good Times Rests., Inc., 2024 U.S. App. LEXIS 4942 (3d Cir. Mar. 1, 2024) (unpublished): OPINION* RESTREPO, Circuit Judge A non- ...
White Winston Select Asset Funds, LLC v. Good Times Rests., Inc., 2024 U.S. App. LEXIS 4942 (3d Cir. Mar. 1, 2024) (unpublished): OPINION* RESTREPO, Circuit Judge A non-binding agreement to negotiate is not a binding agreement to close a …
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Civil Contempt —Purposes: Compliance or Compensation — Clear and Convincing Evidence — Factors (6th Cir.): Court Order, Respondent’s Knowledge, Violation — Respondent’s Burden: Prove Present Inability to Comply — Spoliation of Tangible Evidence; Burden of Proof: Elements (6th Cir.) — Types of Sanctions — Severity Corresponds to Fault

NLRB v. Bannum, Inc., 2024 U.S. App. LEXIS 4225 (6th Cir. Feb. 23, 2024)  [**1]  PER CURIAM. In July 2023, we granted the National Labor Relations Board's petition for a protective restraining order prohibiting Bannum, Inc. and B ...
NLRB v. Bannum, Inc., 2024 U.S. App. LEXIS 4225 (6th Cir. Feb. 23, 2024)  [**1]  PER CURIAM. In July 2023, we granted the National Labor Relations Board’s petition for a protective restraining order prohibiting Bannum, Inc. and Bannum Place of…
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Recent Posts

Sanctions: (1) Rule 11 Does Not Apply to Litigation Papers Initially Filed in State Court — Only Reaffirmance in Federal Court Post-Removal Is Subject to Sanction — (2) “The Fact That A Legal Theory Is A Long-Shot Does Not Necessarily Mean It Is Sanctionable” (Good Quote)

Supreme Court: Relief under Rule 60(b)(6) Requires Extraordinary Circumstances Even If It Is Invoked to Allow Amendment of The Complaint–Rule 15’s Liberal Approach to Amendment Does Not Change That (Reversing Second Circuit)

FRAP 38 Sanctions — Eleventh Circuit Generally Does Not Impose FRAP 38 Sanctions on Pro Se Litigants, But May Do So If They Have Persisted Despite Judicial Warnings of Frivolousness

Inherent Power Sanctions: No Dismissal with Prejudice If Lesser Sanctions Will Suffice — The Liberal Pleading Standard of Swierkiewicz “Is Still Good Law”

Supreme Court: (1) Fraudulent Inducement Theory of Mail Fraud: Statute Violated If Victim Is Tricked into Parting with Money Or Property, Even If Victim Suffers No Pecuniary Loss — (2) “A Fraud Is Complete When The Defendant Has Induced The Deprivation Of Money Or Property Under Materially False Pretenses” — (3) The Old Soil Principle of Statutory Construction Applies Only to the Extent That a Common-Law Term Has Accumulated a Settled Meaning — (4) Rescission for Fraud Does Not Require Economic Loss; Sufficient If Property of A Different Character Or Condition Provided — i.e, If Victim Tricked into A Bargain Materially Different from The One Promised — (5) “At The Right Level Of Specificity, Anything Can Be Described As ‘Unique’ Or ‘Different From’ Something Else” (Good Quote) — (6) “Materiality Look[s] To The Effect On The Likely Or Actual Behavior Of The Recipient Of The Alleged Misrepresentation” (Good Quote)

Statements in Briefs As Judicial Admissions

Supreme Court: TRO As Appealable Order — And District Court Inaction As Tantamount to Refusing An Injunction And Thus Appealable

“Slow-Playing Discovery” in Response to Court Order, Prejudicing Opponent, Violates Rule 37(b)(2)(A)

RICO Pattern: No Closed-Ended Continuity If Racketeering Activity Lasted Less Than One Year (11th Circuit) — Conspiracy Allegations Governed by Rule 8(a), Not 9(b) — Two Paths to Establishing A RICO Conspiracy: Agreement to Objective Or to Commit 2 Predicate Acts — Plaintiff Need Not Show Reliance When The Predicate Acts Are Wire Fraud — In Dicta, 11th Circuit Intimates That Even If The Primary RICO Violation Allegations Fail, The RICO Conspiracy Allegations Might Survive, But Is Probably Talking About A Conspiracy to Commit The Predicate Acts

United States Trinity Energy Servs., L.L.C. v. Se. Directional Drilling, L.L.C., 2025 U.S. App. LEXIS 10178 (5th Cir. Apr. 28, 2025): FRAP 38 Separate Motion Requirement FRAP 38 Sanctions Properly Denied for Want of Separate Motion — Request in Brief Insufficient — “Manifest Disregard” Is Not A Freestanding Ground for Vacatur of Arbitration Award in Fifth Circuit (Or First, Eighth Or Eleventh)

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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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