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

Removal — Bad Faith Prerequisite for Sua Sponte Sanctions in 2d Circuit Satisfied by Actual Knowledge Removal Requirements Unsatisfied — Improper Purpose Not Required — Benefit to Client and Correctability of Act Irrelevant

Cardona v. Mohabir, 2014 U.S. Dist. LEXIS 62637 (S.D.N.Y. May 6, 2014): Court-initiated sanctions are expressly contemplated by Rule 11(c)(3) yet, except in an unusual case such as this that is premised upon an admission, the subjective bad faith standard requires a district judge with a full calendar of cases to delve into an ...
Cardona v. Mohabir, 2014 U.S. Dist. LEXIS 62637 (S.D.N.Y. May 6, 2014): Court-initiated sanctions are expressly contemplated by Rule 11(c)(3) yet, except in an unusual case such as this that is premised upon an admission, the subjective bad faith standard …
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Removal — Sanctions — Neither Rule 11 Nor Rule 60 Nor the Inherent Power of the Court Permits Striking a Remand Order and Retrieving a Case from State Court to Sanction Misrepresentations of Counsel in Obtaining Remand

Barlow v. Colgate Palmolive Co., 2014 U.S. App. LEXIS 8143 (4th Cir. April 30, 2014) (2-1 decision): The federal removal statute immunizes from review — appellate or otherwise — any order remanding to state court a case removed to federal court, with an exception for certain civil rights cases or suits against federal offi ...
Barlow v. Colgate Palmolive Co., 2014 U.S. App. LEXIS 8143 (4th Cir. April 30, 2014) (2-1 decision): The federal removal statute immunizes from review — appellate or otherwise — any order remanding to state court a case removed to federal …
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Email Admissibility — Every Level of Hearsay Must Be Addressed — Emails Received by Reporter from Counsel to a Party, While Business Records of Reporter, Are Hearsay as to Counsel’s Statements (Admissions Not Addressed)

Am. Home Assur. Co. v. Greater Omaha Packing Co., 2014 U.S. Dist. LEXIS 51287 (D. Neb. April 14, 2014): This matter is before the Court on the motion of the counterclaim plaintiff Greater Omaha Packing Company, Inc., (Filing No. 434) for the reconsideration of the Court's April 4, 2014, memorandum opinion (Filing No. 432) and orde ...
Am. Home Assur. Co. v. Greater Omaha Packing Co., 2014 U.S. Dist. LEXIS 51287 (D. Neb. April 14, 2014): This matter is before the Court on the motion of the counterclaim plaintiff Greater Omaha Packing Company, Inc., (Filing No. 434)…
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Hearsay Exemption of Rule 801(d)(2)(A) (An Opposing Party’s Statement) Requires Only That Statement Be Offered against a Party Opponent — Rule 804(b)(3) (Statement Against Interest) Distinguished

Matter of Romanowski, 2014 Mich. App. LEXIS 763 (Mich. Ct. App. April 22, 2014): In these consolidated appeals, respondents, the adoptive parents of the involved minor child, appeal as of right from a circuit court dispositional order placing the child in the temporary custody of the court with petitioner, the Department of Human Serv ...
Matter of Romanowski, 2014 Mich. App. LEXIS 763 (Mich. Ct. App. April 22, 2014): In these consolidated appeals, respondents, the adoptive parents of the involved minor child, appeal as of right from a circuit court dispositional order placing the child…
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Supreme Court — Attorney’s Fees under 35 U.S.C. § 285 Reviewed for Abuse of Discretion, Like Rule 11 Sanctions

Highmark Inc. v. Allcare Health Mgmt., 2014 U.S. LEXIS 3106 (U.S. April 29, 2014) (reversing the decision excerpted in our post of December 16, 2012): Section 285 of the Patent Act provides: "The court in exceptional cases may award reasonable attorney fees to the prevailing party." 35 U. S. C. §285. In Brooks ...
Highmark Inc. v. Allcare Health Mgmt., 2014 U.S. LEXIS 3106 (U.S. April 29, 2014) (reversing the decision excerpted in our post of December 16, 2012): Section 285 of the Patent Act provides: "The court in exceptional cases may award reasonable…
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Judicial Notice of Internet Evidence — Time Zones and Coordinated Universal Time from National Weather Service Website and Non-Governmental Site www.timeanddate.com

United States v. Diaz, 2014 U.S. Dist. LEXIS 56572 (D. Nev. April 23, 2014): B. The Government's Motion for Judicial Notice of Time Zones [Doc. 146] The Government moves under Federal Rule of Evidence 201 for judicial notice of Coordinated Universal Time ("UTC"), as it relates to Pacific ...
United States v. Diaz, 2014 U.S. Dist. LEXIS 56572 (D. Nev. April 23, 2014): B. The Government's Motion for Judicial Notice of Time Zones [Doc. 146] The Government moves under Federal Rule of Evidence 201 for judicial notice of Coordinated…
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Rule 11 — Unsupportable Individual Allegations in Pleading Are Sanctionable Despite Presence of Other, Supported Allegations

Heller v. Cepia LLC, 2014 U.S. App. LEXIS 4064 (9th Cir. Mar. 4, 2014): The district court did not abuse its discretion in concluding that individual factual misrepresentations in a pleading can be sanctionable under Rule 11. Rule 11 requires an attorney to certify that factual allegations in a pleading have evidentia ...
Heller v. Cepia LLC, 2014 U.S. App. LEXIS 4064 (9th Cir. Mar. 4, 2014): The district court did not abuse its discretion in concluding that individual factual misrepresentations in a pleading can be sanctionable under Rule 11. Rule 11…
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RICO — RICO Remedies Don’t Include Setting Aside Prior Judgment or Undermining Its Preclusive Effect — Loss of Claims Due to Fraud on the Court = RICO Injury — Elements of Fraud on Court and Issue Preclusion

Knight v. Phoenix Central, Inc., 2014 U.S. App. LEXIS 7508 (10th Cir. April 22, 2014): Judy Knight appeals from the dismissal of her lawsuit on the grounds of untimeliness, failure to state a claim, and claim preclusion (res judicata). We affirm the judgment below. Most of our reasons for affirmance are routine. But this appea ...
Knight v. Phoenix Central, Inc., 2014 U.S. App. LEXIS 7508 (10th Cir. April 22, 2014): Judy Knight appeals from the dismissal of her lawsuit on the grounds of untimeliness, failure to state a claim, and claim preclusion (res judicata). We…
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Supreme Court—Sanctions—§285 Looks to Totality of Circumstances—A Case “Stands Out” If Weak or Unreasonably Litigated—Some Factors: Frivolousness, Motivation, Need to Compensate, Deter—Objective Baselessness or Bad Faith May Be Enough

Octane Fitness, LLC v. ICON Health & Fitness, Inc., 2014 U.S. LEXIS 3107 (U.S. April 29, 2014): Section 285 of the Patent Act authorizes a district court to award attorney's fees in patent litigation. It provides, in its entirety, that "[t]he court in exceptional cases may award reasonable attorney  [*5] fees to the prevaili ...
Octane Fitness, LLC v. ICON Health & Fitness, Inc., 2014 U.S. LEXIS 3107 (U.S. April 29, 2014): Section 285 of the Patent Act authorizes a district court to award attorney's fees in patent litigation. It provides, in its entirety, that…
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Judicial Notice of Internet Evidence — Court May Take Judicial Notice of Online State Court Records and Its Own Records in Other Cases

Beltran v. Brazelton, 2014 U.S. Dist. LEXIS 53243 (C.D. Cal. April 15, 2014): 1   The Court takes judicial notice of Internet records relating to this action in the state appellate courts (available at http://appellatecases.courtinfo.ca.gov) ("state court records"). See Smith ...
Beltran v. Brazelton, 2014 U.S. Dist. LEXIS 53243 (C.D. Cal. April 15, 2014): 1   The Court takes judicial notice of Internet records relating to this action in the state appellate courts (available at http://appellatecases.courtinfo.ca.gov) ("state court records"). See Smith v.…
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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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