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 for Pursuing Issue of First Impression — Tenuous Nature of Legal Theory Coupled with Inadequate Factual Investigation — Rule 11 Factors (Eleventh Circuit)

Walther v. McIntosh, 2014 U.S. App. LEXIS 13987 (11th Cir. July 23, 2014): Dorothy Walther, Howard Walther, and Phillips P. O'Shaughnessy appeal the district court's order imposing sanctions against O'Shaughnessy under Federal Rule of Civil Procedure 11 for his conduct in pursuing a lawsuit in the district  [*2]
Walther v. McIntosh, 2014 U.S. App. LEXIS 13987 (11th Cir. July 23, 2014): Dorothy Walther, Howard Walther, and Phillips P. O'Shaughnessy appeal the district court's order imposing sanctions against O'Shaughnessy under Federal Rule of Civil Procedure 11 for his conduct…
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Does a Magistrate Judge Have Authority to Decide a Motion for Spoliation Sanctions under Rule 37 or the Court’s Inherent Power? As with Rule 11, the Case Law Is Split

In re Estate of Jackson v. Cnty. of Suffolk, 2014 U.S. Dist. LEXIS 96355 (E.D.N.Y. July 15, 2014)): Plaintiff the Estate of Willie Jackson ("plaintiff" or the "Estate") brings this action against numerous defendants associated with Suffolk County (the "County Defendants") based on an incident on April 2, ...
In re Estate of Jackson v. Cnty. of Suffolk, 2014 U.S. Dist. LEXIS 96355 (E.D.N.Y. July 15, 2014)): Plaintiff the Estate of Willie Jackson ("plaintiff" or the "Estate") brings this action against numerous defendants associated with Suffolk County (the "County…
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§ 1927 Sanctions — Recklessness May Suffice to Show Bad Faith — Multiplicity Essential: “Section 1927 Only Authorizes Shifting Fees That Are Associated with the Persistent Prosecution of a Meritless Claim.” (Good Quotes)

Hamaker v. Enerco Grp., Inc., 2014 U.S. App. LEXIS 9868 (5th Cir. May 28, 2014): Patricia Ayala brought suit in Louisiana state court  [*2] against a manufacturer, its insurers, and a retail store alleging that defects in a propane heater caused the death of her husband. The case was removed to federal court by the manufactur ...
Hamaker v. Enerco Grp., Inc., 2014 U.S. App. LEXIS 9868 (5th Cir. May 28, 2014): Patricia Ayala brought suit in Louisiana state court  [*2] against a manufacturer, its insurers, and a retail store alleging that defects in a propane heater …
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Circumstantial Authentication of Email Evidence Based on Content and Context — Authenticating Testimony Need Not “Be Free from Weakness or Doubt” — Deficiencies in Chain of Custody for Factfinder

State v. Ruiz, 2014 Mich. App. LEXIS 855 (Mich. Ct. App. May 15, 2014): Defendant next argues that the trial court erred by admitting e-mail records into evidence. Defendant objected at trial to the admissibility of the e-mail evidence in Exhibit 13, but made no objection to the admissibility of other e-mails. We revi ...
State v. Ruiz, 2014 Mich. App. LEXIS 855 (Mich. Ct. App. May 15, 2014): Defendant next argues that the trial court erred by admitting e-mail records into evidence. Defendant objected at trial to the admissibility of the e-mail evidence in…
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Rule 37(c)(1) Sanctions — Neither Fault Nor Willfulness Required — Opportunity to Submit Briefs = Opportunity to Be Heard, Satisfies Due Process

Remington v. Mathson, 2014 U.S. App. LEXIS 9849 (9th Cir. May 28, 2014): The district court did not abuse its discretion in imposing discovery sanctions on Remington because Remington's failure to comply with expert witness disclosures was neither substantially justified nor harmless. See Yeti by Molly Ltd., 259 F.3d at 1 ...
Remington v. Mathson, 2014 U.S. App. LEXIS 9849 (9th Cir. May 28, 2014): The district court did not abuse its discretion in imposing discovery sanctions on Remington because Remington's failure to comply with expert witness disclosures was neither substantially justified…
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Inherent Power Sanctions Imposed Where Rule 11 Substantively Violated But Inapt Due to Timeliness — Applying “Rule 11-Type Analysis” OK — Pro Se Can’t Recover Attorney’s Fees — Can’t Award Sanctions to Pay Unpaid Judgment

Peer v. Lewis, 2014 U.S. App. LEXIS 13259 (11th Cir. July 9, 2014): Daniel Warfield Lewis, proceeding pro se, appeals the order imposing sanctions against three lawyers who represented Christopher Peer in an underlying action brought against Lewis under the Fair Credit Reporting  [*2] Act (FCRA), 15 U.S.C. § 1681. He challen ...
Peer v. Lewis, 2014 U.S. App. LEXIS 13259 (11th Cir. July 9, 2014): Daniel Warfield Lewis, proceeding pro se, appeals the order imposing sanctions against three lawyers who represented Christopher Peer in an underlying action brought against Lewis under the …
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FSIA Does Not Protect Counsel of Sovereign from § 1782 Discovery — Second Circuit Affirms Denial of 1782 Discovery but Sua Sponte Orders Documents Not Be Destroyed Due to Fluidity of Foreign Proceedings

Mare Shipping LLC v. Squire Sanders (US) LLP, 2014 U.S. App. LEXIS 14525 (2d Cir. July 30, 2014): Appellants Mare Shipping Inc. ("Mare") and Apostolos Mangouras ("Mangouras") appeal from a decision of the District Court denying their motion to compel discovery for use in a foreign litigation, brought pursuant to 28 ...
Mare Shipping LLC v. Squire Sanders (US) LLP, 2014 U.S. App. LEXIS 14525 (2d Cir. July 30, 2014): Appellants Mare Shipping Inc. ("Mare") and Apostolos Mangouras ("Mangouras") appeal from a decision of the District Court denying their motion to compel…
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Failure to Pay Sanctions = Civil Contempt — No Vicarious §1927 Liability — Every Lawyer Needn’t Vet Every Filing — Adverse Inference for 5th Amend. on Sanctions Motion — What Is Timely Is up to District Court — The Rule of Holes (Good Quotes)

Lightspeed Media Corp. v. Smith, 2014 U.S. App. LEXIS 14725 (7th Cir. July 31, 2014): The first rule of holes, according to an old saying, is to stop digging. The two appeals before us bring that to mind, for reasons that will become apparent. The first, No. 13-3801, comes to us from the district court's order granting a m ...
Lightspeed Media Corp. v. Smith, 2014 U.S. App. LEXIS 14725 (7th Cir. July 31, 2014): The first rule of holes, according to an old saying, is to stop digging. The two appeals before us bring that to mind, for reasons …
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Does a Magistrate Judge Have Authority to Deny a Motion to Amend a Complaint If Denial Effectively Dismisses Certain Claims (E.g., Because Statute of Limitations Has Expired)? Case Law Split

Duncan v. City of N.Y., 2014 U.S. Dist. LEXIS 96214 (E.D.N.Y. July 15, 2014): Plaintiff Shamaine Duncan ("Duncan") seeks leave to file a Fourth Amended Complaint in order to substitute the name of police officer Richard Dinkle ("Dinkle") for that of one of the "John Doe" defendants. See D ...
Duncan v. City of N.Y., 2014 U.S. Dist. LEXIS 96214 (E.D.N.Y. July 15, 2014): Plaintiff Shamaine Duncan ("Duncan") seeks leave to file a Fourth Amended Complaint in order to substitute the name of police officer Richard Dinkle ("Dinkle") for that …
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Judicial Estoppel — Majority Rule — Prior Success, Clear Inconsistency and Impact on Judicial Integrity Requirements

Crawford v. Franklin Credit Mgmt. Corp., 2014 U.S. App. LEXIS 13179 (2d Cir. July 11, 2014): "Judicial estoppel generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase." Pegram v. Herdrich, 530 U.S. 211, 227 n.8 ...
Crawford v. Franklin Credit Mgmt. Corp., 2014 U.S. App. LEXIS 13179 (2d Cir. July 11, 2014): "Judicial estoppel generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument …
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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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