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 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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Rule 11 — Failure to Issue Order to Show Cause Bars Sua Sponte Sanction — No Bad Faith Required in 6th Circuit for § 1927 Sanctions; Recklessness Enough, Even Absent “Conscious Impropriety”

Oakstone Community School v. Williams, 2015 U.S. App. LEXIS 10143 (6th Cir. June 12, 2015): What began as a case about a child's education has needlessly devolved into a dispute about attorney's fees and unjustified sanctions. After prevailing in an administrative claim filed by the Defendant parent and her lawyer under the In ...
Oakstone Community School v. Williams, 2015 U.S. App. LEXIS 10143 (6th Cir. June 12, 2015): What began as a case about a child's education has needlessly devolved into a dispute about attorney's fees and unjustified sanctions. After prevailing in an…
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Spoliation — Bad Faith Required for Adverse Inference Instruction in Eleventh Circuit — Speculation Insufficient to Prove Bad Faith — Judicial Notice of Internet Evidence — Reference Book (Oxford English Dictionary)

Horton v. Maersk Line, Ltd., 2015 U.S. App. LEXIS 3033 (11th Cir. Feb. 27, 2015): On the morning of March 18, 2011, plaintiff-appellant John Horton ("Plaintiff"), a longshoreman, was working aboard the M/V Sealand Champion when a crane operator, placing a shipping container onto a stack of other shipping containers, ...
Horton v. Maersk Line, Ltd., 2015 U.S. App. LEXIS 3033 (11th Cir. Feb. 27, 2015): On the morning of March 18, 2011, plaintiff-appellant John Horton ("Plaintiff"), a longshoreman, was working aboard the M/V Sealand Champion when a crane operator, placing…
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Recent Posts

Rule 41(b): Five Factors to Be Weighed in Deciding Whether Dismissal Is Appropriate (Second Circuit) — Is A Finding of Bad Faith or Fault Required if Dismissal Is Without Prejudice? — Undecided If Truly Without Prejudice But It Is Required If the Without Prejudice Dismissal Will Act as a Dismissal on the Merits (Here, Because of the Statute of Limitations) — Failure To Consider A Lesser Sanction Than Dismissal Is Generally An Abuse Of Discretion

Spoliation Sanctions/Mootness: Stipulation Resolving “All Pending Discovery Disputes,” Which Are Enumerated, Does Not Moot Subsequent Sanctions Motion for ESI Spoliation — Postjudgment Sanctions Order Is Appealable When District Court Has Finally Disposed of Both Liability and Amount

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

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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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