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

Experts — Method of Gatekeeping Is Discretionary But Court Must Apply Daubert – Inadmissibility of Certain Hedonic and Credit Expectancy Damages

Smith v. Dorchester Real Estate, Inc., 2013 U.S. App. LEXIS 20785 (1st Cir. Oct. 15, 2013): This case arises out of a fraudulent real estate mortgage scheme that involved inducing a schizophrenic trash collector into acting as a straw buyer for two overvalued residential properties in Massachusetts. That person, Robert Smith, sued var ...
Smith v. Dorchester Real Estate, Inc., 2013 U.S. App. LEXIS 20785 (1st Cir. Oct. 15, 2013): This case arises out of a fraudulent real estate mortgage scheme that involved inducing a schizophrenic trash collector into acting as a straw buyer…
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Requirements for Case-Ending Sanctions (Seventh Circuit) — Finding of Bad Faith May Be Implicit — No Need for Lesser Sanctions First — Meaning of “Abuse of Discretion” — Failure to Develop Argument on Appeal Waives It

Wellness Int’l Network, Ltd. v. Sharif, 2013 U.S. App. LEXIS 17553 (7th Cir. Aug. 21, 2013): Sharif challenges the district court's affirmance of both the default judgment and the award of attorney's fees to WIN as discovery sanctions, see Fed. R. Civ. P. 37(b); see also Fed. R. Bankr. P. 7037 (rendering Fed. R. Civ. P. 37 ...
Wellness Int’l Network, Ltd. v. Sharif, 2013 U.S. App. LEXIS 17553 (7th Cir. Aug. 21, 2013): Sharif challenges the district court's affirmance of both the default judgment and the award of attorney's fees to WIN as discovery sanctions, see Fed.…
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Rule 11 Sanctions Apt for Failing to Dismiss Claim after Becoming Aware They Lack Merit

Baker v. Chevron USA Inc., 2013 U.S. App. LEXIS 16219 (6th Cir. Aug. 2, 2013): Rule 11 sanctions are appropriate when an attorney refuses to dismiss a claim after becoming aware that it lacks merit. See Merritt, 613 F.3d at 627 ("Rule 11 imposes a continual obligation on attorneys to refrain from pursing meritl ...
Baker v. Chevron USA Inc., 2013 U.S. App. LEXIS 16219 (6th Cir. Aug. 2, 2013): Rule 11 sanctions are appropriate when an attorney refuses to dismiss a claim after becoming aware that it lacks merit. See Merritt, 613 F.3d at…
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Arbitration — Fourth Circuit Vacates Award for “Manifest Disregard of the Law,” Recognizing Circuit Split as to Whether That Ground Is Viable after Hall Street — FAA Trumps State Arbitration Law in Any Dispute “Involving Commerce”

Kiran M. Dewan, CPA, PA v. Walia, 2013 U.S. App. LEXIS 21970 (4th Cir. Oct. 28, 2013): Kiran Dewan and his close corporation, Kiran M. Dewan, CPA, P.A. ("the Company") (collectively, "Appellants"), appeal from the district court's confirmation of an arbitral award in favor of the Company's former employe ...
Kiran M. Dewan, CPA, PA v. Walia, 2013 U.S. App. LEXIS 21970 (4th Cir. Oct. 28, 2013): Kiran Dewan and his close corporation, Kiran M. Dewan, CPA, P.A. ("the Company") (collectively, "Appellants"), appeal from the district court's confirmation of an…
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With Rare Exception, District Court Has No Duty to Consider a Potential Statute of Limitations Defense Sua Sponte — District Court Has Broad Discretion to Interpret Its Local Rules

 O'Connell v. Fernandez-Pol,  2013 U.S. App. LEXIS 19964 (9th Cir. Sept. 30, 2013): Defendant Dr. Jose Fernandez-Pol ("Dr. Pol") appeals the district court's order granting Plaintiffs' motion for judgment on the pleadings after the district court struck Dr. Pol's answer as a discovery sanction under Federal ...
O'Connell v. Fernandez-Pol,  2013 U.S. App. LEXIS 19964 (9th Cir. Sept. 30, 2013): Defendant Dr. Jose Fernandez-Pol ("Dr. Pol") appeals the district court's order granting Plaintiffs' motion for judgment on the pleadings after the district court struck Dr. Pol's answer…
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FCA Doesn’t Preempt Ethics Rules — Ex-GC, Co-Plaintiffs & Counsel Disqualified — GC Disclosed More Confidences Than Needed — OK for Court to Rely on In Camera Document to See If It Was Privileged — Ethical Duties to Corp Transfer to Acquiror

United States v. Quest Diagnostics Inc., 2013 U.S. App. LEXIS 21709 (2d Cir. Oct. 25, 2013): Plaintiff appeals from the July 12, 2011 judgment of the United  States District Court for the Southern District of New York (Robert P. Patterson, Judge) dismissing this qui tam action and disqualifying plaintiff, its individual members--i ...
United States v. Quest Diagnostics Inc., 2013 U.S. App. LEXIS 21709 (2d Cir. Oct. 25, 2013): Plaintiff appeals from the July 12, 2011 judgment of the United  States District Court for the Southern District of New York (Robert P. Patterson,…
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Arbitration Agreement Contained Only in Employee Handbook That Is Subject to Unilateral Change by Employer without Notice Is Illusory and Unenforceable

Scudiero v. Radio One of Tex. II, LLC, 2013 U.S. App. LEXIS 21677 (5th Cir. Oct. 24, 2013): ***Radio One contends that the district court erred in holding that the two arbitration provisions in the employee handbook were illusory and thus unenforceable based on a provision in the handbook that expressly provided that Radio One reserv ...
Scudiero v. Radio One of Tex. II, LLC, 2013 U.S. App. LEXIS 21677 (5th Cir. Oct. 24, 2013): ***Radio One contends that the district court erred in holding that the two arbitration provisions in the employee handbook were illusory and…
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Purposes of Rule 37 Sanctions — Factors — Importance of Bad Faith and Prejudice in Assessing Apt Sanction

First Mariner Bank v. Resolution Law Group, 2013 U.S. Dist. LEXIS 153299 (D. Md. Oct. 24, 2013): Courts have broad discretion to impose punitive measures on any party who fails to obey a discovery order. Fed R. Civ. P. 37(b)(2)(B); Mut. Fed. Sav. & Loan Ass'n v. Richards & Assocs., 872 F.2d 88, 92 (4th Cir. 1989);  8B Charles Al ...
First Mariner Bank v. Resolution Law Group, 2013 U.S. Dist. LEXIS 153299 (D. Md. Oct. 24, 2013): Courts have broad discretion to impose punitive measures on any party who fails to obey a discovery order. Fed R. Civ. P. 37(b)(2)(B);…
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When Notes Are Securities — Reves’ Family Resemblance Test — Issue of Law in Civil Cases — Notes with Durations Shorter Than Nine Months

Securities and Exchange Comm'n v. Thompson, 2013 U.S. App. LEXIS 20342 (10th Cir. Oct. 4, 2013): This appeal arises out of a civil-enforcement action brought by the Securities and Exchange Commission ("SEC") against Defendant-Appellant Ralph W. Thompson, Jr., in connection with an alleged Ponz ...
Securities and Exchange Comm'n v. Thompson, 2013 U.S. App. LEXIS 20342 (10th Cir. Oct. 4, 2013): This appeal arises out of a civil-enforcement action brought by the Securities and Exchange Commission ("SEC") against Defendant-Appellant Ralph W. Thompson, Jr., in connection…
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Circuit Splits Created with Trepidation — Good Quotes

Anderson v. Private Capital Grp., Inc., 2013 U.S. App. LEXIS 20613 (10th Cir. Oct. 10, 2013): We need not reach any general conclusions regarding whether the void ab initio exception has any room to operate in the Tenth Circuit. It is sufficient for us to say that Mr. Anderson has failed to offer us any cog ...
Anderson v. Private Capital Grp., Inc., 2013 U.S. App. LEXIS 20613 (10th Cir. Oct. 10, 2013): We need not reach any general conclusions regarding whether the void ab initio exception has any room to operate in the Tenth Circuit. It…
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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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