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

Federal Court May Take Judicial Notice of State and Federal Dockets Available on the Internet

Barger v. Warden, 2014 U.S. Dist. LEXIS 26416 (C.D. Cal. Feb. 28, 2014): Petitioner's relevant state court records 1 establish the following facts. He was sentenced for the above offenses on July 2, 2007. On December 23, 2008, the California Court of Appeal affirmed the judgment (case no. B200472). The California Suprem ...
Barger v. Warden, 2014 U.S. Dist. LEXIS 26416 (C.D. Cal. Feb. 28, 2014): Petitioner's relevant state court records 1 establish the following facts. He was sentenced for the above offenses on July 2, 2007. On December 23, 2008, the California…
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Rule 11 — Finding of Factual Frivolousness Requires that No Evidence, or Only Patently Frivolous Evidence, Is Offered to Support a Claim — Any Evidence, Even If Weak or Self-Serving, Precludes Sanctions

Lawson v. Sec’y, Dep’t of Corr., 2014 U.S. App. LEXIS 7199 (11th Cir. April 17, 2014): Ross Lawson, proceeding pro se, has filed a motion to reconsider this court's order dated November 14, 2013, denying his motion for an injunction pending appeal.1 He also appeals the district court's dismissal of his 42 U.S.C. ...
Lawson v. Sec’y, Dep’t of Corr., 2014 U.S. App. LEXIS 7199 (11th Cir. April 17, 2014): Ross Lawson, proceeding pro se, has filed a motion to reconsider this court's order dated November 14, 2013, denying his motion for an injunction…
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RICO — Closed-End Continuity = at Least 2 Years — Open-End Not Shown by Fact the Enterprise Primarily Conducts a Legitimate Business Where the Nature of the Predicate Acts Do Not Imply a Continuing Threat Because All Are Directed at a Finite Goal

W&D Imports, Inc. v. Lia, 2014 U.S. App. LEXIS 7038 (2d Cir. April 16, 2014): Plaintiffs-Appellants W&D Imports,  [*2] Inc. d/b/a Willis Honda and David Davis (together "Willis") appeal from the April 23, 2013 judgment of the District Court dismissing all of Willis's claims against American Honda Motor ...
W&D Imports, Inc. v. Lia, 2014 U.S. App. LEXIS 7038 (2d Cir. April 16, 2014): Plaintiffs-Appellants W&D Imports,  [*2] Inc. d/b/a Willis Honda and David Davis (together "Willis") appeal from the April 23, 2013 judgment of the District Court dismissing…
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Text Messages — Circumstantial Evidence of Authenticity — Mere Possession of Device, Standing Alone, Insufficient to Show That Possessor Authored Messages Earlier Issued from Device

State of Missouri v. Francis, 2014 Mo. App. LEXIS 473 (Mo. Ct. App. April 29, 2014): First and foremost is the fundamental failure of the State to establish at trial that the outgoing text messages were written by Appellant. This failure is accentuated by the modern authority on admissions by a party opponent, particu ...
State of Missouri v. Francis, 2014 Mo. App. LEXIS 473 (Mo. Ct. App. April 29, 2014): First and foremost is the fundamental failure of the State to establish at trial that the outgoing text messages were written by Appellant. This…
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Importance of Considering Lesser Sanctions Where Central Blame Lay with Strategic Decisions of Counsel — General Inappropriateness of Penalizing Blameless Client for Attorney’s Behavior (Good Quotes)

Flores v. Ethicon, Inc., 2014 U.S. App. LEXIS 5751 (4th Cir. Mar. 28, 2014) (Wynn, J., concurring that the district court acted within its discretion in dismissing the case without prejudice as a sanction for Plaintiffs' refusal to comply with the district court's pretrial discovery procedures, but dissenting from the lower court’s denial of Pl ...
Flores v. Ethicon, Inc., 2014 U.S. App. LEXIS 5751 (4th Cir. Mar. 28, 2014) (Wynn, J., concurring that the district court acted within its discretion in dismissing the case without prejudice as a sanction for Plaintiffs' refusal to comply with…
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Sanctions — Rule 11 Inapplicable to Discovery — Applicable Rules and § 1927 Trump Inherent Power — Elements of a § 1927 Violation

Hilburn v. Bayonne Parking Auth., 2014 U.S. App. LEXIS 6246 (3d Cir. April 4, 2014): Peter Hilburn and Felicia  [*2] Ryan appeal from the District Court's order granting Appellees' Motion for Summary Judgment and imposing sanctions. Specifically, Appellants argue that they presented sufficient evidence to sur ...
Hilburn v. Bayonne Parking Auth., 2014 U.S. App. LEXIS 6246 (3d Cir. April 4, 2014): Peter Hilburn and Felicia  [*2] Ryan appeal from the District Court's order granting Appellees' Motion for Summary Judgment and imposing sanctions. Specifically, Appellants argue that…
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Disqualification — Despite Lack of Subject Matter Jurisdiction, Court May Disqualify Counsel — Potential for Abuse Lower If Motion Brought by Former Client — Appeals Court May Sua Sponte Judicially Notice Related Case Filings

Zerger & Mauer LLP, 2014 U.S. App. LEXIS 10060 (8th Cir. May 30, 2014): This appeal is a companion to Baker v. Martin Marietta Materials, Inc., 745 F.3d 919 (8th Cir. 2014). In Baker, we determined that the district court lacked subject-matter jurisdiction over the merits and reversed the district court's jurisdictional r ...
Zerger & Mauer LLP, 2014 U.S. App. LEXIS 10060 (8th Cir. May 30, 2014): This appeal is a companion to Baker v. Martin Marietta Materials, Inc., 745 F.3d 919 (8th Cir. 2014). In Baker, we determined that the district court…
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Judicial Notice of Internet Evidence — Online State Licensing Records Properly Subject to Judicial Notice

Sterling Trust v. Edwards, 2014 Cal. App. Unpub. LEXIS 2885 (Cal. Ct. App. April 23, 2014): In his declaration filed in support of the motion for summary judgment Hensel stated that he was "the President of Hensel  [*13] Financial" and that "Hensel Financial has been, and is still, licensed as a Califo ...
Sterling Trust v. Edwards, 2014 Cal. App. Unpub. LEXIS 2885 (Cal. Ct. App. April 23, 2014): In his declaration filed in support of the motion for summary judgment Hensel stated that he was "the President of Hensel  [*13] Financial" and…
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FRAP 38 and § 1927 Sanctions on Appeal Appropriate for “Slap-Dash Excuse for a Brief” — “Poor Quality of Briefing Is Inexcusable” (Good Quotes)

United States v. Alaniz, 2014 U.S. App. LEXIS 9710 (5th Cir. May 27, 2014): Sanctions may be warranted where counsel's arguments are "totally without merit and his briefing . . . sloppily prepared." Macklin v. City of New Orleans, 293 F.3d 237, 241-42 (5th Cir. 2002). We have imposed sanctions under Fede ...
United States v. Alaniz, 2014 U.S. App. LEXIS 9710 (5th Cir. May 27, 2014): Sanctions may be warranted where counsel's arguments are "totally without merit and his briefing . . . sloppily prepared." Macklin v. City of New Orleans, 293…
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Where Sanctions Sought under Rule 37, Due Process Violated by Sanctioning under Inherent Power (Circuit Split (Second vs. Third)) — $6,400 Fine Is Likely “Substantial” and Thus Likely Requires Criminal Contempt Protections

Eastcott v. Hasselblad USA, Inc., 2014 U.S. App. LEXIS 10362 (Fed. Cir. June 4, 2014): This patent appeal involves camera lens technology and the district court's imposition of sanctions for a "sham" invoice requesting expert fees. In 2011, Appellant John Eastcott filed a complaint in the United States District Court for ...
Eastcott v. Hasselblad USA, Inc., 2014 U.S. App. LEXIS 10362 (Fed. Cir. June 4, 2014): This patent appeal involves camera lens technology and the district court's imposition of sanctions for a "sham" invoice requesting expert fees. In 2011, Appellant John…
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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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