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

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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RICO / Sherman Act — Statute of Limitations — Non-Conspiracy Claims — “Acts That Are Merely Unabated Inertial Consequences (of A Single Act) Do Not Restart The Statute Of Limitations”

Z Techs. Corp. v. Lubrizoil Corp., 2014 U.S. App. LEXIS 9597 (6th Cir May 23, 2014): Z Technologies alleges that The Lubrizol Corporation violated the Sherman, Clayton, and analogous state-law antitrust acts by raising prices and enforcing a non-compete clause following Lubrizol's acquisition of the assets of another  [** ...
Z Techs. Corp. v. Lubrizoil Corp., 2014 U.S. App. LEXIS 9597 (6th Cir May 23, 2014): Z Technologies alleges that The Lubrizol Corporation violated the Sherman, Clayton, and analogous state-law antitrust acts by raising prices and enforcing a non-compete clause …
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Party and Counsel Both Subject to Personal Liability for Failure to Comply with Discovery Orders under Rule 37(b)(2)(A) & (C) — Good Quote

Porter Bridge Loan Co. v. Northrop, 2014 U.S. App. LEXIS 8956 (10th Cir. May 14, 2014): III. SANCTION AWARD AGAINST ATTORNEY CAPRON Mr. Capron challenges the district court's order imposing on him a discovery sanction of $1,500.00. Under Rule 37(b)(2)(A) & (C), if a party "fails to obey an orde ...
Porter Bridge Loan Co. v. Northrop, 2014 U.S. App. LEXIS 8956 (10th Cir. May 14, 2014): III. SANCTION AWARD AGAINST ATTORNEY CAPRON Mr. Capron challenges the district court's order imposing on him a discovery sanction of $1,500.00. Under Rule 37(b)(2)(A) …
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ESI Needn’t Be Produced Either as Kept in Usual Course of Business Nor Organized and Labeled to Correspond to Production Request, But in the Form Usually Maintained or In Reasonably Usable Form, Regardless of Requested Format

  Nat’l Jewish Health v. WebMD Health Servs. Grp., Inc., 2014 U.S. Dist. LEXIS 69669 (D. Colo. Mar. 24, 2014) (Hedges, Special Master): The WebMD ESI Production Complies With Rule 34(b)(2)(E)(ii) 1. Rule 34(b)(2)(E) provides that unless otherwise stipulated or ordered ...
Nat’l Jewish Health v. WebMD Health Servs. Grp., Inc., 2014 U.S. Dist. LEXIS 69669 (D. Colo. Mar. 24, 2014) (Hedges, Special Master): The WebMD ESI Production Complies With Rule 34(b)(2)(E)(ii) 1. Rule 34(b)(2)(E) provides that unless otherwise stipulated or ordered…
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Failure to Identify Sanctioning Power Pursuant to Which Attorneys’ Fees Awarded = Abuse of Discretion, Requires Remand

Arnold v. Fed. Nat’l Mortg. Ass’n, 2014 U.S. App. LEXIS 9711 (5th Cir. May 27, 2014): At the initial conference in this case, the district court explicitly warned the Arnolds and their original counsel that it believed their claims lacked any merit and that if they chose to continue to prosecute their suit they might face sanction ...
Arnold v. Fed. Nat’l Mortg. Ass’n, 2014 U.S. App. LEXIS 9711 (5th Cir. May 27, 2014): At the initial conference in this case, the district court explicitly warned the Arnolds and their original counsel that it believed their claims lacked…
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Appeals — While Pro Se Briefs Are Liberally Construed, Failure to Brief an Argument Still Waives It

Haase v. Countrywide Home Loans, Inc., 2014 U.S. App. LEXIS 6450 (5th Cir. April 8, 2014): As we begin our review, we are mindful that "we liberally construe briefs of pro se litigants and apply less stringent standards to parties proceeding pro se than parties represented by counsel." Grant v. Cuellar
Haase v. Countrywide Home Loans, Inc., 2014 U.S. App. LEXIS 6450 (5th Cir. April 8, 2014): As we begin our review, we are mindful that "we liberally construe briefs of pro se litigants and apply less stringent standards to parties …
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Sanctions — Striking of All Pleadings “Is a Serious Sanction That Requires an Explicit Factual Basis from the District Court” — Willfulness May Be Inferred from Party’s “Pattern of Behavior” (Good Quotes)

Southern U.S. Trade Ass’n v. Guddh, 2014 U.S. App. LEXIS 7570 (5th Cir. April 22, 2014): The defendant, Sumit Guddh, appeals the district court's imposition of sanctions against him and the district court's grant of summary judgment to the plaintiffs -- the Southern United States Trade Association ("SUSTA"), Jerry ...
Southern U.S. Trade Ass’n v. Guddh, 2014 U.S. App. LEXIS 7570 (5th Cir. April 22, 2014): The defendant, Sumit Guddh, appeals the district court's imposition of sanctions against him and the district court's grant of summary judgment to the plaintiffs…
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Statute of Frauds and Emails — Typing a Name at Bottom of Email Sufficient to Satisfy Statute, But “Pre-Printed” Signature Is Not

Rhodium Special Opportunity Fund, LLC v. Life Trading Holdco, LLC, 2014 N.Y. Misc. LEXIS 1525 (Sup. Ct. N.Y. Cnty. Mar. 31, 2014): Courts in New York have held that an email may constitute a writing for the purpose of the statute of frauds. See Naldi v Grunberg, 80 AD3d 1, 14, 908 N.Y.S.2d 639 (1st Dept 2010) ...
Rhodium Special Opportunity Fund, LLC v. Life Trading Holdco, LLC, 2014 N.Y. Misc. LEXIS 1525 (Sup. Ct. N.Y. Cnty. Mar. 31, 2014): Courts in New York have held that an email may constitute a writing for the purpose of the …
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RICO — Particularity Requirements — Single Fraud Perpetuated over Several Years Lacks Continuity — “Injury Resulting from Mere Subdivisions of One Fraudulent Scheme Is Not Sufficient to Form a Pattern” (Good Quotes)

DeWitt Ins., Inc. v. Horton, 2014 U.S. Dist. LEXIS 72384 (E.D. Mo. May 28, 2014): Dewitt Insurance, Inc. ("Dewitt") is an insurance management company.... Horton worked for Dewitt as an independent agent and as a "producer" from March 20, 1998 through June 30, 2011..... During some periods, Horton ...
DeWitt Ins., Inc. v. Horton, 2014 U.S. Dist. LEXIS 72384 (E.D. Mo. May 28, 2014): Dewitt Insurance, Inc. ("Dewitt") is an insurance management company…. Horton worked for Dewitt as an independent agent and as a "producer" from March 20, 1998 …
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Recent Posts

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.”

For An Appeal to Be Timely, A Motion for Reconsideration in The District Court (A Rule 59(e) Motion) Must Be Filed, And Not Just Served within 30 Days of The Decision, to Toll The 30-Day Period for Filing An Appeal

There Is No Good-Faith Defense For Issuing An Overly Burdensome Subpoena

Purposes of Rule 37 and Section 1927 Sanctions

While Rule 11 Doesn’t Apply to Appellate Proceedings (Unless It Has Been Incorporated in Local Appellate Rules), Rule 11 Caselaw Is Looked to for Guidance in Interpreting Applicable Sanctions Powers on Appeal

Rule 11 Sanctions & Appellate Review: Abuse of Discretion Standard Applies Unless Sanctions Are Based Solely (Not Just in Part) on Legal Issues, in Which Case Review Is De Novo

Rule 37(b)(2)(A) Sanctions for Altering Expert’s 26(a)(2)(B) Report — Without the Expert’s Knowledge or Approval — by Converting It from PDF to Word, Changing Headings and Other Formatting, and Omitting a Page of Relevant Text and Appendices, Even Though Expert Testified That The Overall Substance of the Report Was Unchanged — Rule 37(b)(2)(A) Sanctions May Be Reversed If Failure to Comply with Discovery Order Was Due to Misunderstanding or Inability to Comply

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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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