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

Rule 16(f) And 37(b)(2)(A) Sanctions: Fifth Circuit Factors For (i) Case-Ending Sanctions, (ii) 37(b)(2) Sanctions Generally, (iii) Expert Exclusion And (iv) Failure To Designate Or Disclose Witness Testimony — Preclusion, Including Exclusion Of Experts, Is Not As Drastic As Dismissal or Default — The Fact That Preclusion May Have The Legal Consequence Of Dismissal Does Not Affect The Appropriateness Of The Sanction — If Preclusion Is An Appropriate Sanction, It Is Unlikely to Be Reversed Even If It Results In Dismissal

Williams v. Am. Honda Motor Co., 2023 U.S. App. LEXIS 13420, 2023 WL 3739095 (5th Cir. May 31, 2023) (unpublished) PER CURIAM:*
Williams v. Am. Honda Motor Co., 2023 U.S. App. LEXIS 13420, 2023 WL 3739095 (5th Cir. May 31, 2023) (unpublished) PER CURIAM:* *   This opinion is not designated for publication. See 5TH CIR. R. 47.5.   *1…
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Purposes Of Rule 37 Sanctions — Non-Exclusive Factors Guiding Exercise Of Discretion As To Whether And To What Extent To Impose Rule 37 Sanctions — Deeming Facts Admitted Requires Proof Of Willfulness, Bad Faith Or Culpability (2d Cir.) — Non-Compliance Is Willful When Order Is Clear And Understood, And Non-Compliance Is Not Due To Factors Beyond The Party’s Control — Contempt Standards And Burdens Or Proof Under Rule 37

Martinenko v. 212 Steakhouse, Inc., 2023 U.S. Dist. LEXIS 64562, 2023 WL 2919559 (S.D.N.Y. April 12, 2023) (Report and Recommendation): *1 This is an action for unpaid wages and other violations of the Federal Labor Standards Act (“FLSA ...
Martinenko v. 212 Steakhouse, Inc., 2023 U.S. Dist. LEXIS 64562, 2023 WL 2919559 (S.D.N.Y. April 12, 2023) (Report and Recommendation): *1 This is an action for unpaid wages and other violations of the Federal Labor Standards Act (“FLSA”) and…
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First Impression — Removal — Appellate Jurisdiction to Review Remand Orders: Notwithstanding 28 U.S.C. § 1447(d), Court of Appeals Has Jurisdiction to Review Remand Order Citing §1447(e) Where That Statute Is Not Actually The Basis of The Order But Prudential Considerations (Abstention) Are— § 1447(e) Cannot Serve As A Basis To Remand If The Plaintiff Is Not Seeking To Add A Party Whose Joinder Would Destroy Subject-Matter Jurisdiction

LeChase Constr. Servs., LLC v. Argonaut Ins. Co., 2023 U.S. App. LEXIS 6976 (2d Cir. Mar. 23, 2023) Argonaut Insurance Company [*3]  ("Argonaut") appeals from an order of the district court (Wolford, J.) remanding this breach-of- ...
LeChase Constr. Servs., LLC v. Argonaut Ins. Co., 2023 U.S. App. LEXIS 6976 (2d Cir. Mar. 23, 2023) Argonaut Insurance Company [*3]  (“Argonaut”) appeals from an order of the district court (Wolford, J.) remanding this breach-of-bond action, brought by LeChase …
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Discovery Violations Should Ordinarily Be Punished Under Rules 26(g) And 37, Not Inherent Power — Sanctions Should Be Tailored Because Violations Occur Along A Continuum of Fault — Three-Factor Test to Determine Whether Sanctions For Non-Production Are Apt (Second Circuit) — Producing Some Relevant Documents Is No Excuse For Not Producing All/Producing Drafts Does Not Excuse Nonproduction of Finals (Good Quote) — There Is No Carve-Out From The Duty To Produce For Publicly-Filed Information (Good Quote) — Duty To Produce Includes Subsequently-Created Documents (Documents Created After Discovery Response) — Factors In Choosing The Appropriate Sanction — Purposes Of Discovery Sanctions — Proportionality: Need for Sanction to Be Tailored to Remedy the Prejudice Suffered

AU New Haven, LLC v. YKK Corp., 2023 U.S. Dist. LEXIS 49913, 2023 WL 2612204 (S.D.N.Y. Mar. 23, 2023): INTRODUCTION Over the course of the long history of this case, Plaintiffs maintained that they held ...
AU New Haven, LLC v. YKK Corp., 2023 U.S. Dist. LEXIS 49913, 2023 WL 2612204 (S.D.N.Y. Mar. 23, 2023): INTRODUCTION Over the course of the long history of this case, Plaintiffs maintained that they held patents issued in both …
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Matter of First Impression vs. Baseless Position (Good Quote)

Reorganized Debtors. SC SJ Holdings, LLC v. Pillsbury Winthrop Shaw Pittman LLP ( In re SC SJ Holdings, LLC), 2023 U.S. Dist. LEXIS 48320 (Bankr. D. Del. March 22, 2023) Debtors argue that § 1144 "is not applicable to" requests for relief where pu ...
Reorganized Debtors. SC SJ Holdings, LLC v. Pillsbury Winthrop Shaw Pittman LLP ( In re SC SJ Holdings, LLC), 2023 U.S. Dist. LEXIS 48320 (Bankr. D. Del. March 22, 2023) Debtors argue that § 1144 “is not applicable to” requests…
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The Answer to a Question of First Impression Is Rarely “Plain”

United States v. Rice, 2023 U.S. App. LEXIS 6582 (7th Cir. Mar. 20, 2023) (“The answer to a question of first impression is rarely ‘plain’ ... and nothing about the narrow legal question here takes it outside the realm of reasonable debate”) (plai ...
United States v. Rice, 2023 U.S. App. LEXIS 6582 (7th Cir. Mar. 20, 2023) (“The answer to a question of first impression is rarely ‘plain’ … and nothing about the narrow legal question here takes it outside the realm of…
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Administrative Closure of A Case Is A Tool of Docket Management Outside the Federal Rule of Civil Procedure Used to Shelve A Pending But Dormant Matter —District Court Order Administratively Closing A Case Is Not An Appealable Final Order, But An Order Denying A Motion to Reopen Is — “A Case Is Deemed To Be Final When A District Court Disassociates Itself From A Case” (Good Quote) — Fed. R. Civ. P. 6(b)(1)(B) Does Not Confer Authority to Dismiss A Case; Other Power Must Be Invoked — Rule 41(b) Dismissal: Sixth Circuit Factors

Rodriguez v. Hirshberg Acceptance Corp., 2023 U.S. App. LEXIS 6006 (6th Cir. Mar. 14, 2023): District courts, it is broadly accepted, enjoy tremendous freedom in managing their caseload. That flexibility stems in part from the fact that no two dist ...
Rodriguez v. Hirshberg Acceptance Corp., 2023 U.S. App. LEXIS 6006 (6th Cir. Mar. 14, 2023): District courts, it is broadly accepted, enjoy tremendous freedom in managing their caseload. That flexibility stems in part from the fact that no two district…
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§ 1927 Sanctions Available for Needlessly Prolonging Deposition Through Irrelevant Questions Even If Movant Did Not Move for A Protective Order under Rule 30 — No § 1927 Sanctions Imposable on Law Firms (Majority Rule – Circuit Split) — “Whether A Defendant Offers To Settle A Case Is Of Questionable Value In Determining Whether The Plaintiff’s Claims Are Frivolous” (Good Quote)

Vaughan v. Lewisville Indep. Sch. Dist., 2023 U.S. App. LEXIS 5684, 2023 WL 2423494 (5th Cir. Mar. 9, 2023): In this case, the district court awarded fees against Vaughan’s attorneys after finding that they unreasonably and vexatiously multiplied ...
Vaughan v. Lewisville Indep. Sch. Dist., 2023 U.S. App. LEXIS 5684, 2023 WL 2423494 (5th Cir. Mar. 9, 2023): In this case, the district court awarded fees against Vaughan’s attorneys after finding that they unreasonably and vexatiously multiplied the…
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Spoliation of Tangible Evidence: Sixth Circuit Standards – Harsh Sanctions Typically Imposed Only for Culpability Greater Than Negligence – Sanction of Summary Judgment Properly Denied for Negligent Spoliation by Hospital’s Document Storage Company Years Before Plaintiff Ever Requested His Medical Records

Frank v. Good Samaritan Hosp., 2023 U.S. App. LEXIS 6265 (6th Cir. Mar. 15, 2023) (unpublished): Jahmir Frank sued Good Samaritan Hospital for medical malpractice. But because Good Samaritan's contractor destroyed his medical records, Frank ...
Frank v. Good Samaritan Hosp., 2023 U.S. App. LEXIS 6265 (6th Cir. Mar. 15, 2023) (unpublished): Jahmir Frank sued Good Samaritan Hospital for medical malpractice. But because Good Samaritan’s contractor destroyed his medical records, Frank’s claim was arguably more difficult …
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Sanctions: Vexatious Litigant Injunctions in District Court (5th Circuit Standards) — Vexatious Litigant Injunctions in Court of Appeals: Inherent Power and Statutory (All Writs Act) Authority — FRAP 38 Monetary Sanctions: Frivolousness Need Not Be Intentional, Can Be Inadvertent — RICO: Plaintiff Cannot Plead Actual Reliance on Assertion He Knew at The Time Was False; Actual Reliance Unjustifiable as A Matter of Law; Common-Law Fraud Not A Predicate Act

Nix v. Major League Baseball, 2023 U.S. App. LEXIS 6319, 2023 WL 2534977 (5th Cir. Mar. 16, 2023): ...
Nix v. Major League Baseball, 2023 U.S. App. LEXIS 6319, 2023 WL 2534977 (5th Cir. Mar. 16, 2023): *1 This appeal involves the latest in a series of unsuccessful lawsuits2 by Neiman Nix, proceeding pro se, who sued…
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Recent Posts

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.”

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

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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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