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

Electronic Spoliation: Inherent Power—Fraud on Court Requires Clear & Convincing Evidence — Factors — Dismissal Requires Willfulness, Consideration of Less Drastic Sanctions — [No Reference to 37(e), Which Governs]

ComLab Corp. v. Tire, 815 Fed.Appx. 597 (2d Cir. 2020) (unpublished): SUMMARY ORDER Plaintiff-Appellant ComLab, Corp. (“ComLab”) brings this consolidated appeal challenging two judgments of the United States District Court for the Southern District of New York. The first appeal concerns a September 11, ...
ComLab Corp. v. Tire, 815 Fed.Appx. 597 (2d Cir. 2020) (unpublished): SUMMARY ORDER Plaintiff-Appellant ComLab, Corp. (“ComLab”) brings this consolidated appeal challenging two judgments of the United States District Court for the Southern District of New York. The first appeal…
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Good Faith Reliance on Information Received from In-House Counsel, Verified After Challenge Raised, Defeats Rule 11 Sanction Sought for Misrepresenting Corporate Status

Huang v. Mediatek USA, Inc.815 Fed.Appx. 521 (Fed. Cir. 2020): This appeal arises from an action for patent infringement. Xiaohua Huang accused MediaTek USA Inc., formerly known as Nephos Inc., of infringing certain claims of
Huang v. Mediatek USA, Inc.815 Fed.Appx. 521 (Fed. Cir. 2020): This appeal arises from an action for patent infringement. Xiaohua Huang accused MediaTek USA Inc., formerly known as Nephos Inc., of infringing certain claims of U.S. Patent Nos. 6,744,653 and…
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Appeals: FRAP 38 Sanctions Apt If Appeal Is Wholly without Merit, There Is No Reasonable Expectation of Success — § 1927 Sanctions If Lawyer Reasonably Should Have Known Claim Is Frivolous

 T.V.S. v. Akron City Sch. Dist. Bd. of Educ., 2020 U.S. App. LEXIS 25457 (6th Cir. Aug. 11, 2020): ¶¶ ORDER Akron City School District Board of Education, Akron City School District, and its employees Da ...
T.V.S. v. Akron City Sch. Dist. Bd. of Educ., 2020 U.S. App. LEXIS 25457 (6th Cir. Aug. 11, 2020): ¶¶ ORDER Akron City School District Board of Education, Akron City School District, and its employees David W. James, Philomena Vincente,…
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Rule 11 Sanctions Apt Where All Claims Barred by Statute of Limitations & Res Judicata [Even Though These Are Affirmative Defenses]

 Whitted v. Jordan, 2020 U.S. App. LEXIS 24942 (9th Cir. Aug. 5, 2020) (unpublished): MEMORANDUM* Stephen Whitted appeals the adverse summary ...
Whitted v. Jordan, 2020 U.S. App. LEXIS 24942 (9th Cir. Aug. 5, 2020) (unpublished): MEMORANDUM* Stephen Whitted appeals the adverse summary judgment ruling on his claims of intentional interference with a parent-child relationship, civil conspiracy, abuse of process, constitutional…
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Rule 11 Sanctions Are Generally Reserved for Rare and Exceptional Cases (Good Quote)

 Eurosesmillas, S.A. v. Uttarwar, 2020 U.S. App. LEXIS 25578 (9th Cir. Aug. 10, 2020) (unpublished): MEMORANDUM*  
Eurosesmillas, S.A. v. Uttarwar, 2020 U.S. App. LEXIS 25578 (9th Cir. Aug. 10, 2020) (unpublished): MEMORANDUM*  Eurosesmillas, S.A. v. Uttarwar, 2020 U.S. App. LEXIS 25578 (9th Cir. Aug. 10, 2020) (unpublished): Mohan Uttarwar and Piyush Gupta appeal from the…
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Bankruptcy: Presumptive Sanction for Breach of § 329(a) (Fee Agreements) Is Loss of All Fees —Not Least Severe Sanction — Rule 11 Inapt — Mitigating Circumstances Must Be Compelling

SE Prop. Holdings, LLC v. Stewart (In re Stewart), 2020 U.S. App. LEXIS 25882 (10th Cir. Aug. 14, 2020): Attorney Ruston Welch received $348,404.41 in fees for representing David and Terry Stewart in their C ...
SE Prop. Holdings, LLC v. Stewart (In re Stewart), 2020 U.S. App. LEXIS 25882 (10th Cir. Aug. 14, 2020): Attorney Ruston Welch received $348,404.41 in fees for representing David and Terry Stewart in their Chapter 7 bankruptcy proceedings. This appeal …
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Inherent Power Sanctions for Ethical Rule Violations: Insulting Counsel, Mediator, Court Rptr; Physical Threat — Reprimand As Serious SX — Bad Faith Needed Only for Fees — Due Process: Notice of Type, Severity of Possible SX Critical

   Golden v. Clear Advantage Mktg., 2020 U.S. Dist. LEXIS 88130,2020 WL 2516671 (S.D. Iowa Mar. 30, 2020): *1 The issues now before the court present a pure credibility dispute, alth ...
Golden v. Clear Advantage Mktg., 2020 U.S. Dist. LEXIS 88130,2020 WL 2516671 (S.D. Iowa Mar. 30, 2020): *1 The issues now before the court present a pure credibility dispute, although not concerning the merits of the underlying copyright and…
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Spoliation Sanctions: Preclusion for Failing to Preserve Most Data-Filled Form of ESI — Alt’ve Not Reasonably Usable — Preclusion ¹ Dispositive (MJ) If Other Evid. Exists — 2d Cir. Disc’y Sxs Factors (Pro, Con)—Client Sx’d for Atty Error

 Joint Stock Co. "Channel One Russ. Worldwide" v. Infomir LLC, 2020 U.S. Dist. LEXIS 63099 (S.D.N.Y. Mar. 26, 2020): Plaintiffs, a group of Russian television broadcasters, commenced this a ...
Joint Stock Co. "Channel One Russ. Worldwide" v. Infomir LLC, 2020 U.S. Dist. LEXIS 63099 (S.D.N.Y. Mar. 26, 2020): Plaintiffs, a group of Russian television broadcasters, commenced this action on February 19, 2016 against various Defendants, [*3]  including Infomir LLC …
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Facebook Authentication: FB Certification of Identity of Page Owner + Circumstantial Evidence Explaining Why S/he’d Defriend 2nd ID’ed FB Subscriber Authenticatse Defriending — Rule 901(a) Test: Could Reasonable Juror Could Find Auth. by Preponderance

State v. Sample, 2020 WL 2316709 (Md. Ct. App. May 11, 2020): *1 It is axiomatic that for a trial court to admit evidence, there must be sufficient indicia that the evidence is authentic—i.e., that the evidence “is what its proponent claims.” Md. R. 5-901(a). A party can sufficiently authenticate eviden ...
State v. Sample, 2020 WL 2316709 (Md. Ct. App. May 11, 2020): *1 It is axiomatic that for a trial court to admit evidence, there must be sufficient indicia that the evidence is authentic—i.e., that the evidence “is what its…
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Supreme Court: Party May Assert Defense in 2nd Action, Even If It Could Have Been Asserted in 1st Action, Unless It Would Violate Traditional Res Judicata Principles — Issue Or Claim Preclusion (Merger Or Bar)

 Lucky Brand Dungarees v. Marcel Fashions Group, 2020 U.S. LEXIS 2642 (U.S. May 14, 2020): This case arises from protracted litigation between petitioners Lucky Brand Dungarees, Inc., and others (collectiv ...
Lucky Brand Dungarees v. Marcel Fashions Group, 2020 U.S. LEXIS 2642 (U.S. May 14, 2020): This case arises from protracted litigation between petitioners Lucky Brand Dungarees, Inc., and others (collectively Lucky Brand) and respondent Marcel Fashions Group, Inc. (Marcel). In …
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Recent Posts

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

Spoliation: Fed. R. Civ. P. 37(e) Imposes a Higher Standard — Intent — Than Fourth Circuit Law Previously Applied to Spoliation of Electronically-Stored Information (And Still Does As to Non-ESI) — Willfulness vs. Intent

Inherent Power and § 1927 Sanctions: Removal of counsel from case, referral for disciplinary action, and award of fees and costs for assaulting opposing counsel at deposition — Failure to request hearing waive any right to a hearing — Notice and opportunity to be heard required before sua sponte sanctions imposed, whether under Rule 11, the inherent power of the court or § 1927 — Notice may come from court or opposing counsel — Order imposing sanctions cannot provide notice of sanctions — Nature of bad faith requirement for inherent power sanctions: bad faith to obstruct the judicial process or bring about violation of a court order — Sanctions proceeding need not defer (Younger abstention) to disciplinary proceeding involving the same conduct — Sanctions proceeding doesn’t threaten to interfere with disciplinary proceeding — Why District Court is accorded significant deference in matters concerning attorney’s fees

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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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