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 — Sloppy Argument and Overstatement ≠ Misrepresentation or Litigation Misconduct Punishable under Rule 11 and Form No Basis for Finding Patent Case Not Exceptional within 35 U.S.C. § 285

Gaymar Indus., Inc. v. Cincinnati Sub-Zero Prods., Inc., 2015 U.S. App. LEXIS 10736 (Fed. Cir. June 25, 2015): Cincinnati Sub-Zero Products, Inc. ("CSZ"), the prevailing party in this patent infringement case, appeals the district court's denial of attorney's fees under 35 U.S.C. § 285. In holding that this was not ...
Gaymar Indus., Inc. v. Cincinnati Sub-Zero Prods., Inc., 2015 U.S. App. LEXIS 10736 (Fed. Cir. June 25, 2015): Cincinnati Sub-Zero Products, Inc. ("CSZ"), the prevailing party in this patent infringement case, appeals the district court's denial of attorney's fees under…
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Linked In Admissibility — Hearsay — Defendant’s Self-Description of Title on Own LinkedIn Page when Offered by Plaintiff Admitted Insofar As It Reflects Defendant’s Description of Role But Not for Truth That Defendant Actually Held Position

Music Grp. Macao Commercial Offshore Ltd. v. Foote, 2015 U.S. Dist. LEXIS 81415 (N.D. Cal. June 22, 2015): This case arises out of a cyber attack on the global computer network and communication systems of Plaintiff Music Group Macao Commercial Offshore Limited ("Music Group" or "Plaintiff"). Plaintiff asse ...
Music Grp. Macao Commercial Offshore Ltd. v. Foote, 2015 U.S. Dist. LEXIS 81415 (N.D. Cal. June 22, 2015): This case arises out of a cyber attack on the global computer network and communication systems of Plaintiff Music Group Macao Commercial …
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Rule 11 & Ethical Precepts — Rhode Island Bars Anonymous Ghostwriting of Pleadings But Permits Representation Limited to Disclosed Assistance with Express Statement That Lawyer Is Not Appearing in the Action

FIA Card Servs., N.A. v. Pichette, 2015 R.I. LEXIS 79 (RI S.Ct. June 8, 2015): The appeals before us emanate from the activities of three attorneys who authored pleadings, but did not disclose their respective identities, on behalf of pro se defendants in three separate debt collection cases, a practice colloquially known as g ...
FIA Card Servs., N.A. v. Pichette, 2015 R.I. LEXIS 79 (RI S.Ct. June 8, 2015): The appeals before us emanate from the activities of three attorneys who authored pleadings, but did not disclose their respective identities, on behalf of pro …
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Spoliation Sanctions — Three-Part Test for Adverse Inference Instruction in Tenth Circuit: Duty to Preserve, Prejudice, Bad Faith (Electronic Records Lost, Tangible Records Destroyed)

McCauley v. Board of Comm’rs for Bernalillo Cnty., 2015 U.S. App. LEXIS 3361 (10th Cir. Mar. 2, 2015): John R. McCauley appeals the district court's grant of summary judgment to the Board of Commissioners of Bernalillo County (Bernalillo County or County) on his employment discrimination and retaliation claims. McCauley, ...
McCauley v. Board of Comm’rs for Bernalillo Cnty., 2015 U.S. App. LEXIS 3361 (10th Cir. Mar. 2, 2015): John R. McCauley appeals the district court's grant of summary judgment to the Board of Commissioners of Bernalillo County (Bernalillo County or …
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RICO Continuity — Mail Fraud Can Be Predicate But Mailings Don’t Create Continuity unless They’re False — At Least 1 Year Needed for Closed-End Continuity in 8th Circuit — Good Quotes on RICO Not Apt for Ordinary Commerical Fraud

Stonebridge Collection, Inc. v. Carmichael, 2015 U.S. App. LEXIS 10840 (8th Cir. June 26, 2015): The Stonebridge Collection, Inc., an engraver of promotional pocket knives, sued (1) former distributor Cutting-Edge USA, LLC and its members, Keith and Glenna Carmichael; (2) competitor knife engraver Taylormade Unlimited, LLC (TaylorMade ...
Stonebridge Collection, Inc. v. Carmichael, 2015 U.S. App. LEXIS 10840 (8th Cir. June 26, 2015): The Stonebridge Collection, Inc., an engraver of promotional pocket knives, sued (1) former distributor Cutting-Edge USA, LLC and its members, Keith and Glenna Carmichael; (2)…
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Sanctions: Court May Dismiss with Prejudice Even after Voluntarily Dismissal without Prejudice under Rule 41 — Mortgage with Bank ≠ Grounds to Recuse — Judges Not Obliged to Make Greater Financial Disclosure Than Statute Requires

Zow v. Regions Fin’l Corp., 2014 U.S. App. LEXIS 23321 (11th Cir. Dec. 11, 2014): James Allen Zow, Sr. and Veronica Zow appeal the dismissal of their case with prejudice as a sanction for being in contempt of a discovery order. They argue that dismissal with prejudice was an inappropriate sanction because they had already voluntaril ...
Zow v. Regions Fin’l Corp., 2014 U.S. App. LEXIS 23321 (11th Cir. Dec. 11, 2014): James Allen Zow, Sr. and Veronica Zow appeal the dismissal of their case with prejudice as a sanction for being in contempt of a discovery…
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Sanctions — Supreme Court Indicates Bankruptcy Courts May Be Empowered to Issue Inherent Power Sanctions — No Question That They May Sanction under § 1927

Dahiya v. Kramer (In re Khan), 2015 U.S. App. LEXIS 1792 (2d Cir. Feb. 5, 2015): Dahiya argues as a threshold matter that the bankruptcy court lacked the authority to sanction pursuant to 28 U.S.C. § 1927 and its inherent authority to sanction. We need not reach the issue of whether bankruptcy courts possess the inherent authority to ...
Dahiya v. Kramer (In re Khan), 2015 U.S. App. LEXIS 1792 (2d Cir. Feb. 5, 2015): Dahiya argues as a threshold matter that the bankruptcy court lacked the authority to sanction pursuant to 28 U.S.C. § 1927 and its inherent…
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Rule 11 Sanctions — Pre-Dismissal Letter Is Insufficient to Satisfy Safe Harbor and Post-Dismissal Motion Is Untimely

Penn, LLC, et al. v. Prosper Bus. Dev. Corp., 2014 U.S. App. LEXIS 23368 (6th Cir. Dec. 12, 2014): In this dispute over the management of a joint venture, Defendants-Appellants James E. Arnold & Associates and the firm's eponymous partner (together the "Arnold Firm") challenge the district court's denial of their mot ...
Penn, LLC, et al. v. Prosper Bus. Dev. Corp., 2014 U.S. App. LEXIS 23368 (6th Cir. Dec. 12, 2014): In this dispute over the management of a joint venture, Defendants-Appellants James E. Arnold & Associates and the firm's eponymous partner…
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Texts Authenticated by Recipient’s Testimony, Messages That Included Photo of Sender, ID’ed a Person Both Knew & by Evidence Phone Was Used to Contact Others Who Knew Sender and That Address for Phone Was a Former Address of Sender’s

Jackson v. State, 2015 Tex. App. LEXIS 6126 (Tex. App. June 17, 2015):   II. MOTION TO SUPPRESS In his first issue, Jackson contends the trial court abused its discretion in denying his motion to suppress certain cell phone records and in "thereafter allow[ing] unauthenticated eviden ...
Jackson v. State, 2015 Tex. App. LEXIS 6126 (Tex. App. June 17, 2015):   II. MOTION TO SUPPRESS In his first issue, Jackson contends the trial court abused its discretion in denying his motion to suppress certain cell phone records and …
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Rule 37 Sanctions — Dismissal for Repeated Failure to Appear for Court-Ordered Deposition — 4-Factor Test (2d Circuit) — While Pro Se Is Due Special Solicitude, He or She Is Not Immune to Dismissal, If Willfulness, Bad Faith or Fault Is Found

Davis v. Citibank, N.A., 2015 U.S. App. LEXIS 10524 (2d Cir. June 23, 2015): If a party fails to attend its own deposition, the district court may, inter alia, dismiss the action and [*2]  order the party to pay reasonable expenses. See Fed. R. Civ. P. 37(b)(2)(A)(v), (d)(3). "We review a district court's im ...
Davis v. Citibank, N.A., 2015 U.S. App. LEXIS 10524 (2d Cir. June 23, 2015): If a party fails to attend its own deposition, the district court may, inter alia, dismiss the action and [*2]  order the party to pay reasonable …
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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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