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 — Summary Judgment Granting Inherent Power Sanctions Reversed — Factual Issues as to Whether There Was Bad Faith or Willful Misconduct Required Evidentiary Hearing — Improper to Make Factual Findings on SJ Where Facts Disputed

Konop v. BMK Hawaiian Airlines, Inc., 2015 U.S. App. LEXIS 11772 (9th Cir. July 8, 2015): Robert Konop appeals the district court's order affirming in part and vacating in part the bankruptcy court's award of sanctions against him. We have jurisdiction pursuant to 28 U.S.C. § 158(d)(1), see Congrejo Invs., LLC v. Mann  ( ...
Konop v. BMK Hawaiian Airlines, Inc., 2015 U.S. App. LEXIS 11772 (9th Cir. July 8, 2015): Robert Konop appeals the district court's order affirming in part and vacating in part the bankruptcy court's award of sanctions against him. We have…
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Text Authentication by Absence of Messages at Times Alleged Sender Is Indisposed, Name & Phone Number on Messages, Consistency of Content with Events in Alleged Sender’s Life

Matter of Detention of H.N., 2015 Wash. App. LEXIS 1433 (Wash. Ct. App. July 6, 2015): H.N. appeals the order committing her to involuntary treatment. The trial court did not abuse its discretion when it admitted as substantive evidence e-mailed screenshots of text messages that a medical expert used as part of her opinion testimony. ...
Matter of Detention of H.N., 2015 Wash. App. LEXIS 1433 (Wash. Ct. App. July 6, 2015): H.N. appeals the order committing her to involuntary treatment. The trial court did not abuse its discretion when it admitted as substantive evidence e-mailed…
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Privilege — Common Interest/Joint Defense — Existing Litigation Unnecessary — Party Asserting Privilege Need Not Put Forward Evidence Establishing the Details of a Joint Legal Strategy

Hanwha Azdel, Inc. v. C&D Zodiac, Inc., 2015 U.S. App. LEXIS 9602 (4th Cir. June 9, 2015): Finally, Azdel appeals the [*39]  district court's denial of Azdel's motion to compel certain Crane documents that the district court deemed protected under the common interest privilege. We review factual findi ...
Hanwha Azdel, Inc. v. C&D Zodiac, Inc., 2015 U.S. App. LEXIS 9602 (4th Cir. June 9, 2015): Finally, Azdel appeals the [*39]  district court's denial of Azdel's motion to compel certain Crane documents that the district court deemed protected under…
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Rule 37 Sanctions — If Preclusion of Evidence in Practice Amounts to Dismissal of Claim, Willfulness, Bad Faith or Fault, and Other Prerequisites to Dismissal, Must Be Found

Toyrrific v. Karapetian, 2015 U.S. App. LEXIS 9170 (9th Cir. June 2, 2015): 2. However, the district court erred as a matter of law by excluding the damages evidence under Rule 37(c)(1). See R & R Sails, 673 F.3d at 1247. Here, excluding damages evidence was fatal to Toyrrific's claim. Appellees moved for summary ...
Toyrrific v. Karapetian, 2015 U.S. App. LEXIS 9170 (9th Cir. June 2, 2015): 2. However, the district court erred as a matter of law by excluding the damages evidence under Rule 37(c)(1). See R & R Sails, 673 F.3d at…
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Inherent Power/§ 1927 Sanctions for Refusal to Sign Settlement & Prolonging Case — Attorney’s Fees Not Barred by Contract Provision — Abuse of Discretion (10th Cir.) — Good Quotes (Incl. Party’s “Diatribe”) — No Recusal for Judge’s Anger

Farmer v. Banco Popular of N. Am., 2015 U.S. App. LEXIS 11273 (10th Cir. June 30, 2015): This matter was previously before the Court on Plaintiff George Farmer's appeal from a district court order, in the nature of a mandatory injunction, directing Farmer to perform under the terms of a settlement agreement he reached with ...
Farmer v. Banco Popular of N. Am., 2015 U.S. App. LEXIS 11273 (10th Cir. June 30, 2015): This matter was previously before the Court on Plaintiff George Farmer's appeal from a district court order, in the nature of a mandatory …
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Rule 11 — Suspension from Practice = “Nonmonetary” Sanction within 11(c)(4) — Bankruptcy Court Can Suspend — “Typical Federal Court Disposes of Hundreds of Cases Each Year—A Bankruptcy Court Disposes of Thousands” — Honesty Essential

In re Young (Young v Young), 2015 U.S. App. LEXIS 10158 (8th Cir. June 17, 2015): The bankruptcy court sanctioned attorney Kathy Cruz under Rule 9011 of the Federal Rules of Bankruptcy Procedure during her representation of a client, Jonathan Young. Cruz appeals the imposition of sanctions. For the reasons stated belo ...
In re Young (Young v Young), 2015 U.S. App. LEXIS 10158 (8th Cir. June 17, 2015): The bankruptcy court sanctioned attorney Kathy Cruz under Rule 9011 of the Federal Rules of Bankruptcy Procedure during her representation of a client, Jonathan …
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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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Recent Posts

Rule 37 Default Judgment Sanction: (1) Default Judgment Appropriate Only As a Last Resort, When Less Drastic Sanctions Would Not Ensure Compliance with the Court’s Orders — (2) Default Judgment Sanction Requires Willful or Bad Faith Failure to Obey Discovery Order — (3) Fugitive Defendant’s Failure to Appear at Court-Ordered, Remote Deposition Despite Court Warning That Sanctions Could Follow Disobedience Warrants Default Judgment — (4) District Court Afforded Wide Discretion in Interpreting Its Own Orders — (5) Filing a Notice of Appeal from a Non-Appealable Order (Here, a Discovery Order) Does Not Deprive the District Court of Jurisdiction over the Case

RICO and Injunctions: (1) State Court Actions Designed to Perpetuate and Monetize a RICO Violation Are Enjoinable under RICO, Even Though They Are Not Themselves Alleged to Be Predicate Acts [Note: Noerr Pennington Applies in RICO Actions] — (2) Although Civil RICO’s Text and Legislative History Fail to Reveal Any Intent to Override the Provisions of the Federal Arbitration Act, Arbitrations Are Enjoinable Under the “Effective Vindication” Doctrine Where They Operate As a Prospective Waiver of a Party’s Right to Pursue Statutory RICO Remedies — (3) Arbitration Findings May Be Given Collateral Estoppel Effect in a Civil RICO Action — (4) Injunction of Non-Corrupt State Court Litigations That Furthers a RICO Violation Are Enjoinable Under the Anti-Injunction Act’s “Expressly Authorized” Exception — (5) “The Irreparable Harm Requirement Is The Single Most Important Prerequisite For The Issuance Of A Preliminary Injunction” (Good Quote) — (6) When Injunction Is Based on “Serious Questions on the Merits” Rather Than “Likelihood of Success,” Court May Rely on Unverified Pleadings and Attached Exhibits to Assess the Merits, Unless the Opponent Has Raised Substantial Questions (Here, the Opponent Failed to Request an Evidentiary Hearing) — (7) Whether Amended Pleading Moots An Appeal Turns on Whether It Materially Changes the Substantive Basis for the Appeal — (8) Meaning of “In That” (“Used To Introduce A Statement That Explains Or Gives More Specific Information” About A Prior Statement)

RICO: Fraudulent Concealment Must Prevent Discovery of the Injury to Toll Statute of Limitations

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.”

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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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