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 Sanctions — Refiling Impertinent, Scandalous Allegations, Despite Warning, Violates 11(b)(1) — Refiling and Issuing Multiple Subpoenas Suggests Improper Purpose — No Rule 38 Sanctions If Chances Are Merely Slim

Marceaux v. Lafayette City-Parish Consolidated Govt., 2015 U.S. App. LEXIS 9540 (5th Cir. June 8, 2015): Plaintiffs are fifteen current and former officers of the Lafayette Police Department suing the local government, the department, and other officers and city officials for numerous alleged violations of their constitutiona ...
Marceaux v. Lafayette City-Parish Consolidated Govt., 2015 U.S. App. LEXIS 9540 (5th Cir. June 8, 2015): Plaintiffs are fifteen current and former officers of the Lafayette Police Department suing the local government, the department, and other officers and city officials…
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1st Circuit: Bankruptcy Court Has Inherent Power to Sanction (Circuit Split) — Bad Faith Not Always Needed — Punitive Non-Contempt vs. Contempt — Factors in Evaluating Court’s Discretion in Imposing Sanctions

In re Charbono (Charbono v. Sumski), 2015 U.S. App. LEXIS 10053 (1st Cir. June 15, 2015): This appeal poses the question of whether a bankruptcy court has inherent power to sanction parties for noncompliance with court orders. We hold that it does -- and we reject the debtor's attempt to subsume this power within the bankr ...
In re Charbono (Charbono v. Sumski), 2015 U.S. App. LEXIS 10053 (1st Cir. June 15, 2015): This appeal poses the question of whether a bankruptcy court has inherent power to sanction parties for noncompliance with court orders. We hold that …
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Authentication of Map of Locations Based on Cell Phone Signals to Towers — Expert Testimony re Technology Plus Circumstantial Evidence Linking Phones to Owners at Relevant Times — Use of Names vs. Phone Numbers on Exhibit Upheld

United States v. Reed, 780 F.3d 260 (4th Cir. 2015): Four masked men committed a string of robberies around Alexandria and Arlington, Virginia, in December 2012. During the third and final robbery, the thieves took $60,411.15 from a credit union. [**2]  They also unwittingly took three GPS tracking devices embedded in the cash ...
United States v. Reed, 780 F.3d 260 (4th Cir. 2015): Four masked men committed a string of robberies around Alexandria and Arlington, Virginia, in December 2012. During the third and final robbery, the thieves took $60,411.15 from a credit union. …
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Sanctions — Appealability — Judicial Referral of Attorney Conduct to a Disciplinary Committee, Absent a Specific Finding of Misconduct by the Court, Is Not a Sanction and Is Not Appealable

Zente v. Credit Mgmt., LP, 2015 U.S. App. LEXIS 10063 (5th Cir. June 15, 2015): Albeit in the name of Plaintiff-Appellant Joseph Zente, his attorney, Sergei Lemberg, appeals the district court's referral of his conduct to the disciplinary committee of the Western District of Texas. We conclude that neither Zente nor Lember ...
Zente v. Credit Mgmt., LP, 2015 U.S. App. LEXIS 10063 (5th Cir. June 15, 2015): Albeit in the name of Plaintiff-Appellant Joseph Zente, his attorney, Sergei Lemberg, appeals the district court's referral of his conduct to the disciplinary committee of …
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Rule 11: Failure to Address Controlling Decision Issued Post-Filing/Pre-Dismissal Brief Warrants Sanctions — FRAP 38 Sanctions Imposable, But Denied, for Rehashing Arguments from Below without Addressing District Court’s Conclusions

Duncan v. CitiMortgage, Inc., 2015 U.S. App. LEXIS 10111 (11th Cir. June 16, 2015): Appellants Brendalynne and Tyrone Duncan appeal the district court's grants of motions to dismiss filed by Appellees Citimortgage, Inc., Pendergast & Associates, P.C., Howell A. Hall, and John F. Pendergast. Their attorney, Deirdre M. Stephens-John ...
Duncan v. CitiMortgage, Inc., 2015 U.S. App. LEXIS 10111 (11th Cir. June 16, 2015): Appellants Brendalynne and Tyrone Duncan appeal the district court's grants of motions to dismiss filed by Appellees Citimortgage, Inc., Pendergast & Associates, P.C., Howell A. Hall,…
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RICO & Res Judicata — Continuation of Same Activity at Issue in Prior Action Doesn’t Raise New or Independent RICO Claim — Test Isn’t Whether New Facts Occurred after Judgment But Whether Material Facts, Witnesses, Docs Are the Same in Both Suits

Foster v Denenberg, 2015 U.S. App. LEXIS 9644 (3d Cir. June 10, 2015): Frederick Foster appeals from an order of the District Court dismissing his complaint. For the reasons that follow, we will summarily affirm. Foster filed suit in 2010 in the United States District Court for the Eastern District of Pennsylvania against David ...
Foster v Denenberg, 2015 U.S. App. LEXIS 9644 (3d Cir. June 10, 2015): Frederick Foster appeals from an order of the District Court dismissing his complaint. For the reasons that follow, we will summarily affirm. Foster filed suit in 2010…
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YouTube Admissibility — Admission of Defendant’s Words in Video, However Accomplished, Violates Crawford Confrontation

State v. Patton, 2015 Ohio App. LEXIS 1783 (Ohio Ct. App. May 15, 2015): [*P1]  Daurin Patton, appeals a December 10, 2012 judgment of conviction and sentence of the Lucas County Court of Common Pleas on two counts of aggravated murder with two accompanying firearms specifications and one count of aggravated robbery. The aggravated m ...
State v. Patton, 2015 Ohio App. LEXIS 1783 (Ohio Ct. App. May 15, 2015): [*P1]  Daurin Patton, appeals a December 10, 2012 judgment of conviction and sentence of the Lucas County Court of Common Pleas on two counts of aggravated…
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§ 1927 Sanctions Affirmed for Issuing Trial Subpoena after Court Has Precluded Deposition of Same Apex Witness and While Motion to Compel Witness’s Attendance at Trial Is Pending

Wagner v. Gallup, Inc., 2015 U.S. App. LEXIS 9856 (8th Cir. June 12, 2015): Rodd Wagner appeals various district court decisions, the sum total of which limited matters of discovery, imposed sanctions on Wagner's attorney and ultimately dismissed Wagner's age discrimination and appropriation claims. We affirm. I ...
Wagner v. Gallup, Inc., 2015 U.S. App. LEXIS 9856 (8th Cir. June 12, 2015): Rodd Wagner appeals various district court decisions, the sum total of which limited matters of discovery, imposed sanctions on Wagner's attorney and ultimately dismissed Wagner's age…
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Facebook Post Authenticated by Its Content, Timing, Appended Name, Witness Testimony She Recognizes Page as Alleged Author’s & Fact Page Is Password Protected — There Are as Many Ways to Try a Case as There Are Trial Lawyers (Good Quote)

State v. Fawver, 2015 Wash. App. LEXIS 1208 (Wash. Ct. App. June 9, 2015): Corey Fawver challenges his convictions for first degree burglary and second degree assault, alleging both that his counsel's performance was flawed and the evidence did not support the assault conviction. We disagree and affirm. FACTS
State v. Fawver, 2015 Wash. App. LEXIS 1208 (Wash. Ct. App. June 9, 2015): Corey Fawver challenges his convictions for first degree burglary and second degree assault, alleging both that his counsel's performance was flawed and the evidence did not…
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Appeals — Liberal Construction of Pro Se Notice of Appeal — Discovery Sanctions/Due Process — Fact That Agreement Is Unsigned Does Not Make It Per Se Inadmissible (Good Quote) — Standards of Review of Damages Determinations

Chen v. Chan, 2015 U.S. App. LEXIS 9271 (2d Cir. June 4, 2015): Appellant Wai Yin Chan appeals from a judgment of the district court awarding damages to the plaintiffs on their claims under the New York Labor Law ("NYLL"). Chan asserts that the district court erred by (1) excluding evidence of a purported settlement agreemen ...
Chen v. Chan, 2015 U.S. App. LEXIS 9271 (2d Cir. June 4, 2015): Appellant Wai Yin Chan appeals from a judgment of the district court awarding damages to the plaintiffs on their claims under the New York Labor Law ("NYLL").…
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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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