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

Appellate Review Is Waived as to Any Non-Dispositive Magistrate Judge Order Not Timely Objected to before District Court

Seto v. Thielen, 519 Fed. Appx. 966; 2013 U.S. App. LEXIS 3953 (9th Cir. 2013): A motion for leave to amend is a nondispositive motion which a magistrate judge may properly decide. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); U.S. Dominator, Inc. v. Factory Ship Robert E. Resoff, 768 F.2d 1099, 1102 & n.1 (9th Cir. 1985), supers ...
Seto v. Thielen, 519 Fed. Appx. 966; 2013 U.S. App. LEXIS 3953 (9th Cir. 2013): A motion for leave to amend is a nondispositive motion which a magistrate judge may properly decide. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P.…
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Class Actions — Adequacy of Representation Must Be Judge Independently of Fairness of Settlement — Utility of Subclasses — Civil RICO Liability Is Based on Predicate Criminal Conduct, Requires Conscious Wrongdoing

Charron v. Wiener, 2013 U.S. App. LEXIS 19977 (2d Cir. Sept. 30, 2012): B. Adequacy of Representation Federal Rule of Civil Procedure 23(a)(4) requires that in a class action, "the interests of the class" must be "fairly and adequately protect[ed]." Fed. R. Civ. P. 23(a)(4). To ensure that ...
Charron v. Wiener, 2013 U.S. App. LEXIS 19977 (2d Cir. Sept. 30, 2012): B. Adequacy of Representation Federal Rule of Civil Procedure 23(a)(4) requires that in a class action, "the interests of the class" must be "fairly and adequately protect[ed]."…
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§ 1927 Sanctions: A case may be weak, but as long as it is not without circumstantial foundation, it is not frivolous (Good Quote)

Barnhart v. Lamar Advertising Co., 2013 U.S. App. LEXIS 14174 911th Cir. July 15, 2013): Section 1927 provides, in relevant part, that "[a]ny attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' ...
Barnhart v. Lamar Advertising Co., 2013 U.S. App. LEXIS 14174 911th Cir. July 15, 2013): Section 1927 provides, in relevant part, that "[a]ny attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be…
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“Exceptional Circumstances” Relieving a Law Firm of Rule 11 Liability for Misconduct of Its Lawyers — Good Quotes

Catton v. Defense Tech. Sys. Inc., 2013 U.S. App. LEXIS 19771 (2d Cir. Sept. 27, 2013): Todtman, Nachamie, Spizz & Johns, P.C. ("Todtman") and John Brady both appeal from the February 29, 2012, and August 2, 2012, orders issued by the United States District Court for the Southern District of New York (Zilly, J.) imposing sa ...
Catton v. Defense Tech. Sys. Inc., 2013 U.S. App. LEXIS 19771 (2d Cir. Sept. 27, 2013): Todtman, Nachamie, Spizz & Johns, P.C. ("Todtman") and John Brady both appeal from the February 29, 2012, and August 2, 2012, orders issued by…
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After All Federal Claims Dismissed, District Court May Exercise Supplemental Jurisdiction over State Law Claims, As to Which There Is No Independent Federal Jurisdiction, Where to Do So Would Promote Judicial Economy

Hinterberger v. Kaleida Health, 2013 U.S. App. LEXIS 17469 (2d Cir. Aug. 21, 2013): The employees argue that once the district court dismissed their RICO claim, it should have declined to exercise supplemental jurisdiction over their remaining claims. We disagree. The Supreme Court has made it abundantly clear--in a case that ...
Hinterberger v. Kaleida Health, 2013 U.S. App. LEXIS 17469 (2d Cir. Aug. 21, 2013): The employees argue that once the district court dismissed their RICO claim, it should have declined to exercise supplemental jurisdiction over their remaining claims. We disagree.…
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Securities Act — Limitations — Discovery, Not Inquiry Notice, Standard Applies to ’33 Act — Need Not Plead Compliance with SOL — Inquiry Notice Applies to RICO — One Panel May “Reevaluate” Another’s Decision If New Supreme Court Case

Pension Fund for Operating Eng’rs  v. Mortg. Asset Securitization Transactions, Inc., 2013 U.S. App. LEXIS 19166 (3d Cir. Sept. 17, 2013): Lead Plaintiff Pension Trust Fund for Operating Engineers (the "Operating Engineers") appeal from the District Court's initial order dismissing without prejudice their amended c ...
Pension Fund for Operating Eng’rs  v. Mortg. Asset Securitization Transactions, Inc., 2013 U.S. App. LEXIS 19166 (3d Cir. Sept. 17, 2013): Lead Plaintiff Pension Trust Fund for Operating Engineers (the "Operating Engineers") appeal from the District Court's initial order dismissing…
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RICO — Statute of Limitations — Separate Accrual Rule — Factors — Reaffirmations of Prior Acts and Continuation of Earlier Injury Do Not Start New Limitations Period

Lehman v. Lucom, 2013 U.S. App. LEXIS 17947 (11th Cir. Aug. 28, 2013): Civil actions under the Racketeering Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968, are subject to a four-year statute of limitations. See Rotella v. Wood, 528 U.S. 549, 553, 120 S. Ct. 1075, 1080-81, 145 L. Ed. 2d 1047 (2000). Under th ...
Lehman v. Lucom, 2013 U.S. App. LEXIS 17947 (11th Cir. Aug. 28, 2013): Civil actions under the Racketeering Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968, are subject to a four-year statute of limitations. See Rotella v. Wood,…
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Sanctions — Due Process Demands More Specific Notice for Client Than for Lawyer — Bad Faith for Inherent Power Sanctions Is Judged by an Objective Standard

Dial HD, Inc. v. ClearOne Commc’ns, 2013 U.S. App. LEXIS 19241 (11th Cir. Sept. 18, 2013): First, we find unavailing Bowers's argument that he did not receive adequate notice of the district court's intent to use its inherent power to impose sanctions. A district court may impose sanctions using its inherent   power &qu ...
Dial HD, Inc. v. ClearOne Commc’ns, 2013 U.S. App. LEXIS 19241 (11th Cir. Sept. 18, 2013): First, we find unavailing Bowers's argument that he did not receive adequate notice of the district court's intent to use its inherent power to…
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Erie Doctrine: Federal Court Attempting to Predict State Law on a Matter of First Impression May Consider the Case Law of Other Jurisdictions

Vechten v. Elenson, 920 F. Supp. 2d 1284 (S.D. Fla. 2013): "[A] federal court attempting to forecast state law" on a matter of first impression "may consider the case law of other jurisdictions," see Guideone Elite Ins. Co. v. Old Cutler Presbyterian Church, Inc., 420 F.3d 1317, 1326 n.5 (11th Cir. 2005)***. < ...
Vechten v. Elenson, 920 F. Supp. 2d 1284 (S.D. Fla. 2013): "[A] federal court attempting to forecast state law" on a matter of first impression "may consider the case law of other jurisdictions," see Guideone Elite Ins. Co. v. Old…
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Failure to Collect Evidence Available to, But Not in the Possession of, a Party Does Not Constitute Spoliation

United States v. Greco, 2013 U.S. App. LEXIS 17264 (6th Cir. Aug. 20, 2013): Defendant Thomas Greco was convicted at the end of a three-week jury trial on charges of bribery and conspiracy to commit bribery involving programs receiving federal funds (18 U.S.C. § 666(a)(1)(B) and § 371), violation of and conspiracy to violate the Ho ...
United States v. Greco, 2013 U.S. App. LEXIS 17264 (6th Cir. Aug. 20, 2013): Defendant Thomas Greco was convicted at the end of a three-week jury trial on charges of bribery and conspiracy to commit bribery involving programs receiving federal…
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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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