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

Appeals — “Though We Do Not Lightly Create a Circuit Split, We Are Obliged to Follow Supreme Court Precedent Even When It Might Be Viewed As Inequitable or as Form Over Substance” (Good Quote)

  Jewell v. United States, 749 F.3d 1295 (10th Cir. 2014): Though we do not lightly create a circuit split, we are obliged to follow Supreme Court precedent, even when it might be viewed as "inequitable" or as "form over substance." In Powell, the Supreme Court expressed itself cle ...
Jewell v. United States, 749 F.3d 1295 (10th Cir. 2014): Though we do not lightly create a circuit split, we are obliged to follow Supreme Court precedent, even when it might be viewed as "inequitable" or as "form over substance."…
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Judicial Notice of Internet Evidence — Fact That Certain Gambling Websites Are Owned by Foreign Entities, Which Is Ascertainable from Factual Documents Found on Reliable Sources on Internet, May Be Judicially Noticed

United States v. Hom, 2014 U.S. Dist. LEXIS 77489 (N.D. Cal. June 4, 2014): The following facts are uncontested. During 2006, pro se defendant John Hom gambled online through internet accounts with PokerStars.com and PartyPoker.com (Hendon Decl., Exh. 5 at 1-2). In 2007, defendant continued to gamble online through his PokerS ...
United States v. Hom, 2014 U.S. Dist. LEXIS 77489 (N.D. Cal. June 4, 2014): The following facts are uncontested. During 2006, pro se defendant John Hom gambled online through internet accounts with PokerStars.com and PartyPoker.com (Hendon Decl., Exh. 5 at…
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Rule 37 Sanctions — Purposes — Factors — Prejudice as Prerequisite to Obtaining Sanctions More Severe Than Fees — Categories of Prejudice

Paice, LLC v. Hyundai Motor Co., 2014 U.S. Dist. LEXIS 95043 (D. Md. June 27, 2014): B. Sanctions The Court now turns to consider whether discovery sanctions are appropriate for Defendants' discovery conduct to-date.5  Courts have broad discretion to impose punitive measures on any party who fai ...
Paice, LLC v. Hyundai Motor Co., 2014 U.S. Dist. LEXIS 95043 (D. Md. June 27, 2014): B. Sanctions The Court now turns to consider whether discovery sanctions are appropriate for Defendants' discovery conduct to-date.5  Courts have broad discretion to impose…
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How Much of an Explanation Must a District Court Provide in Certifying a Case for Immediate Appeal under Rule 54(b)? The Circuits Are Split, and the Right Answer Is None — A Result No Circuit Has Reached — Sutton, J., Concurring

Adler v. Elk Glenn, LLC, 2014 U.S. App. LEXIS 13044 (6th Cir. July 10, 2014) (Sutton, J., concurring) (note: Judge Sutton is Chair of the Standing Committee on Rules of Practice and Procedure of the United States Judicial Conference and a recognized scholar of the Federal Rules): SUTTON, J., concurring. When a ...
Adler v. Elk Glenn, LLC, 2014 U.S. App. LEXIS 13044 (6th Cir. July 10, 2014) (Sutton, J., concurring) (note: Judge Sutton is Chair of the Standing Committee on Rules of Practice and Procedure of the United States Judicial Conference…
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Denial of Disqualification Motion Not Appealable under § 1291 before Final Judgment — Mandamus May Be Available in Exceptional Circumstances

Averhart v. CWA Union Local 1033, 2014 U.S. App. LEXIS 12609 (3d Cir. July 3, 2014): In his supplemental brief, Averhart concedes that this Court presently lacks jurisdiction under 28 U.S.C. § 1291 to review the District Court's denial of his request to disqualify counsel, and he has expressly withdrawn his appeal to that extent. ...
Averhart v. CWA Union Local 1033, 2014 U.S. App. LEXIS 12609 (3d Cir. July 3, 2014): In his supplemental brief, Averhart concedes that this Court presently lacks jurisdiction under 28 U.S.C. § 1291 to review the District Court's denial of…
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RICO — Proof of Predicate Acts That Are Criminal Is Essential to a Successful Civil RICO Claim

Southern Snow Mfg. Co. v. Snowizard Holdings, Inc., 2014 U.S. App. LEXIS 12242 (Fed. Cir. June 30, 2014): A snowball is a confection of ice shavings, flavored with various syrups and typically served in a cone-shaped paper cup. This appeal arises from the conclusion of four consolidated lawsuits in the United States District C ...
Southern Snow Mfg. Co. v. Snowizard Holdings, Inc., 2014 U.S. App. LEXIS 12242 (Fed. Cir. June 30, 2014): A snowball is a confection of ice shavings, flavored with various syrups and typically served in a cone-shaped paper cup. This appeal …
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Appellate Practice — Failure to Develop Argument in Brief, Including a Single Conclusory Sentence, Forfeits Appellate Review

Schnader Harrison Segal & Lewis LLP, 2014 U.S. App. LEXIS 11647 (4th Cir. June 20, 2014): On appeal, Hershey also challenges the district  court's order granting Schnader's motion for Rule 11 sanctions.  "We review the decision to award sanctions for abuse of discretion." Newport News Holdings Corp. v. Virtual City ...
Schnader Harrison Segal & Lewis LLP, 2014 U.S. App. LEXIS 11647 (4th Cir. June 20, 2014): On appeal, Hershey also challenges the district  court's order granting Schnader's motion for Rule 11 sanctions.  "We review the decision to award sanctions for…
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Offer of Judgment — Rule 68 Reverses Rule 54(d) and Requires a Prevailing Plaintiff to Pay a Defendant’s Post-Offer Cost If the Judgment Is Less Than the Unaccepted Offer, Even in Civil Rights Cases

Stanczyk v. City of N.Y., 752 F.3d 273 (2d Cir. June 3, 2014): On March 21, 2013, a jury in the United States District Court for the Eastern District of New York found City of New York police officers Richard DeMartino ("DeMartino") and Shaun Grossweiler ("Grossweiler") (the "Officers") liable under 42 U. ...
Stanczyk v. City of N.Y., 752 F.3d 273 (2d Cir. June 3, 2014): On March 21, 2013, a jury in the United States District Court for the Eastern District of New York found City of New York police officers Richard…
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Sanctions — Due Process Satisfied Despite Lack of Notice Where Sanctioned Party, in Briefing Amount of Penalty, Argued Merits to Newly-Assigned Judge and Sought Reconsideration — Irrelevance No Defense to Noncompliance with Valid Discovery Order

  McLaughlin v. Phelan Hallinan & Schmieg, LLP, 2014 U.S. App. LEXIS 12028 (3d Cir. June 26, 2014): Timothy McLaughlin had a mortgage. As a result of an error, the mortgage company believed that he was in default and referred the matter to the law firm Phelan Hallinan & Shmieg, LLP, whose lawyers include Lawrence T. Phelan, Fr ...
McLaughlin v. Phelan Hallinan & Schmieg, LLP, 2014 U.S. App. LEXIS 12028 (3d Cir. June 26, 2014): Timothy McLaughlin had a mortgage. As a result of an error, the mortgage company believed that he was in default and referred the…
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Following § 1404(a) Transfer, Does Transferee Court Apply Its Own Circuit’s Interpretation of Federal Law or That of Transferor Circuit? — Circuit Split

Klatte v. Buckman, Buckman & Reid, Inc., 2014 U.S. Dist. LEXIS 92286 (D.N.J. July 8, 2014): Because this action was transferred to this Court from a district court in another circuit, an additional  [*13] preliminary layer of analysis is required before the Court may reach the question of who determines arbitrability ...
Klatte v. Buckman, Buckman & Reid, Inc., 2014 U.S. Dist. LEXIS 92286 (D.N.J. July 8, 2014): Because this action was transferred to this Court from a district court in another circuit, an additional  [*13] preliminary layer of analysis is required…
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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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