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

§ 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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Work Product Protection Extends to Oral Communications, Facts, and the Identity of Persons Interviewed by Counsel or Investigators, But Not to Identity of Interviewers

U.S. Bank N.A. v. PHL Variable Life Ins. Co., 2013 U.S. Dist. LEXIS 143398 (S.D.N.Y. Oct. 3, 2013): The burden of establishing any right to work product protection is on the party asserting it. In re Grand Jury Subpoenas Dated March 19, 2002 & August 2, 2002, 318 F.3d 379, 384 (2d Cir. 2003) (party asserting work pr ...
U.S. Bank N.A. v. PHL Variable Life Ins. Co., 2013 U.S. Dist. LEXIS 143398 (S.D.N.Y. Oct. 3, 2013): The burden of establishing any right to work product protection is on the party asserting it. In re Grand Jury Subpoenas Dated…
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Joinder — Do Defendants Who Participate in BitTorrent File-Sharing — As a Swarm — Engage in a Single Transaction or in a Series of Closely Related Transactions within Rule 20? Caselaw Split

TCYK, LLC v. Does 1-9, 2013 U.S. Dist. LEXIS 125379 (S.D. Ohio Sept. 3, 2013): This is a copyright action in which plaintiff alleges that defendants copied and distributed plaintiff's copyrighted work, the motion picture "The Company You Keep." Complaint, Doc. No. 1, ¶ 5. Defendants are identified only by internet prot ...
TCYK, LLC v. Does 1-9, 2013 U.S. Dist. LEXIS 125379 (S.D. Ohio Sept. 3, 2013): This is a copyright action in which plaintiff alleges that defendants copied and distributed plaintiff's copyrighted work, the motion picture "The Company You Keep." Complaint,…
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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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