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

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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§ 1927 Sanctions — Continuing to Litigate Claims after Adverse Party Offers to Provide the Only Relief to Which Claimant Is Entitled Merits Sanction

Milner v. Biggs, 2014 U.S. App. LEXIS 9075 (6th Cir. May 13, 2014): In the underlying case, plaintiffs-appellants Jason A. Milner, Natasha M. Milner, and Lexi Milner retained Jason Shugart as counsel after discovering mold in a home approximately four weeks after they purchased it. On behalf of the Milners, Shugart  [*2]
Milner v. Biggs, 2014 U.S. App. LEXIS 9075 (6th Cir. May 13, 2014): In the underlying case, plaintiffs-appellants Jason A. Milner, Natasha M. Milner, and Lexi Milner retained Jason Shugart as counsel after discovering mold in a home approximately four…
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Rule 37(c)(1) Sanction of Exclusion of Belatedly-Appointed Expert — Factors — Burden of Proving Justification or Excuse — “Particularly Wide” Discretion Accorded Trial Court, Which Need Not Explicitly Consider Guiding Factors

Wilkins v. Montgomery, 2014 U.S. App. LEXIS 8412 (4th Cir. May 5, 2014): We first discuss Appellant's challenge to the district court's exclusion of her expert, Dr. Voskanian. This issue implicates both the February 8 Order excluding Dr. Voskanian, and the portion of the April 11 Order denying Appellant's Rule 59 motion to ...
Wilkins v. Montgomery, 2014 U.S. App. LEXIS 8412 (4th Cir. May 5, 2014): We first discuss Appellant's challenge to the district court's exclusion of her expert, Dr. Voskanian. This issue implicates both the February 8 Order excluding Dr. Voskanian, and…
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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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