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

Motions for Reconsideration — Strict Standard — S.D.N.Y. Local Rule — Complaint Urging Positions Previously Rejected or Which District Court Advises Counsel Are Frivolous Merits Rule 11 Sanctions — Mistake, Inexperience No Defense

Hochstadt v. N.Y. State Educ. Dep’t, 2013 U.S. App. LEXIS 19418 (2d Cir. Sept. 19, 2013): We review the denial of a motion for reconsideration for abuse of discretion. RJE Corp. v. Northville Indus. Corp., 329 F.3d 310, 316 (2d Cir. 2003). A district court abuses its discretion when its decision: (1) is based on "an e ...
Hochstadt v. N.Y. State Educ. Dep’t, 2013 U.S. App. LEXIS 19418 (2d Cir. Sept. 19, 2013): We review the denial of a motion for reconsideration for abuse of discretion. RJE Corp. v. Northville Indus. Corp., 329 F.3d 310, 316 (2d…
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RICO — Beneficiary of Estate Has No Standing to Sue for RICO Violation Committed against Estate — No Proximate Cause, Hence No Injury

Schrager v. Aldana, 2013 U.S. App. LEXIS 19313 (3d Cir. Sept. 19, 2013): Appellant Arnold Schrager alleges that Appellee Jennifer Aldana conspired with Karen Lipton and Russell Rosenblatt to defraud the estate of Roslyn Schrager, the mother of Appellant and Lipton, for over $1 million. The United States District Court for the Distric ...
Schrager v. Aldana, 2013 U.S. App. LEXIS 19313 (3d Cir. Sept. 19, 2013): Appellant Arnold Schrager alleges that Appellee Jennifer Aldana conspired with Karen Lipton and Russell Rosenblatt to defraud the estate of Roslyn Schrager, the mother of Appellant and…
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Inherent Power Sanctions in Criminal Cases Must Take Counsel’s Constitutional Function into Account — Improper to Give No Warning, Then “Sanction Counsel for Defying the Court’s Unstated Expectations” (Good Quote)

United States v. Agosto-Vega, 2013 U.S. App. LEXIS 19817 (1st Cir. Sept. 27, 2013) (Kayatta, J.):   Attorney Francisco Rebollo-Casalduc ("Rebollo"), a criminal defense attorney, appeals from a $2,000 sanction imposed upon him and his client for filing motions in limine im ...
United States v. Agosto-Vega, 2013 U.S. App. LEXIS 19817 (1st Cir. Sept. 27, 2013) (Kayatta, J.):   Attorney Francisco Rebollo-Casalduc ("Rebollo"), a criminal defense attorney, appeals from a $2,000 sanction imposed upon him and his client for filing motions in limine…
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Inherent Power Sanction of Party/§ 1927 of GC—Factors in Picking Right Sanction—Non-Frivolous Positions Do Not Excuse Frivolous Ones—“Deploying a Few Random Nodes of Truth to the End of Evading…an Over-Arching…Truth” (Good Quotes)

Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 2013 U.S. Dist. LEXIS 137633 (M.D. Fla. Sept. 25, 2013): This action between Odyssey Marine Exploration and the Kingdom of Spain adjudicates the right to possession and ownership of more than $600,000,000.00 in silver specie.  This action presented ...
Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 2013 U.S. Dist. LEXIS 137633 (M.D. Fla. Sept. 25, 2013): This action between Odyssey Marine Exploration and the Kingdom of Spain adjudicates the right to possession and ownership of more than $600,000,000.00 …
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Why Not to Label an Opponent’s Argument “Ridiculous”

Bennett v. State Farm Mutual Auto. Ins. Co., No. 13-3047 (6th Cir. Sept. 24, 2013): There are good reasons not to call an opponent’s argument “ridiculous,” which is what State Farm calls Barbara Bennett’s principal argument here.  The reasons include civility; the near-certainty that overstatement will only push the ...
Bennett v. State Farm Mutual Auto. Ins. Co., No. 13-3047 (6th Cir. Sept. 24, 2013): There are good reasons not to call an opponent’s argument “ridiculous,” which is what State Farm calls Barbara Bennett’s principal argument here.  The reasons include …
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If All Opinions Are Now Citable, What Does It Mean to Have a Court Rule Saying the Opinion Is Non-Precedential?

 Dixon v. Midland Mortg. Co., 2013 U.S. Dist. LEXIS 137279 (D.D.C. Sept. 25, 2013): Footnote 1. This unpublished memorandum opinion is intended solely to inform the parties and any reviewing court of the basis for the instant ruling, or, alternatively, to assist in any potential future analysis of the res judicata, law of the case, ...
Dixon v. Midland Mortg. Co., 2013 U.S. Dist. LEXIS 137279 (D.D.C. Sept. 25, 2013): Footnote 1. This unpublished memorandum opinion is intended solely to inform the parties and any reviewing court of the basis for the instant ruling, or, alternatively,…
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Failure to Provide 21-Day Safe Harbor Mandates Denial of Uncontested Rule 11 Motion

Dixon v. Midland Mortg. Co., 2013 U.S. Dist. LEXIS 137279 (D.D.C. Sept. 25, 2013): Midland filed its Motion for Sanctions on October 10, 2011, approximately two weeks after the Court's dismissal of Plaintiff's First Amended Complaint. Therein, Midland invokes Federal Rule of Civil Procedure 11 in seeking "an award of att ...
Dixon v. Midland Mortg. Co., 2013 U.S. Dist. LEXIS 137279 (D.D.C. Sept. 25, 2013): Midland filed its Motion for Sanctions on October 10, 2011, approximately two weeks after the Court's dismissal of Plaintiff's First Amended Complaint. Therein, Midland invokes Federal…
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When a Circuit Court Feels It Necessary, It May Create a Circuit Split Even If Many Other Circuits Unanimously Take the Other View

Woods v. Carey, 722 F.3d 1177 (9th Cir. 2013): Footnote 7. *** More important, although a circuit split is not desirable, we are not required to follow the initial circuit to decide an issue if our own careful analysis of the legal question leads us to conclude that Congress intended the contrary result. Zimmerman ...
Woods v. Carey, 722 F.3d 1177 (9th Cir. 2013): Footnote 7. *** More important, although a circuit split is not desirable, we are not required to follow the initial circuit to decide an issue if our own careful analysis of …
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Magistrate Judge Has Subject Matter Jurisdiction to Enter Judgment in Class Action — Absent Class Members Not “Parties” — Ordinary Meaning Shown in Contemporaneous Black’s, Restatements, Cases—Stern v. Marshall Does Not Void 28 USC § 636

Day v. Persels & Assocs., LLC, 2013 U.S. App. LEXIS 18741 (11th Cir. Sept. 10, 2013): This appeal requires that we resolve ... whether a magistrate judge had subject-matter jurisdiction to enter a final judgment in a class action without first obtaining the consent of the absent members of the class.... Miranda Day sued several debt ...
Day v. Persels & Assocs., LLC, 2013 U.S. App. LEXIS 18741 (11th Cir. Sept. 10, 2013): This appeal requires that we resolve … whether a magistrate judge had subject-matter jurisdiction to enter a final judgment in a class action without…
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Arbitration Agreement That Can Be Modified by One Side at Any Time for Any Reason Is Unenforceable — No Consideration If One Party Can Immediately Rescind, Even If It Doesn’t — Is 30 Days’ Notice Enough to Save It?

Day v. Fortune Hi-Tech Mktg., Inc., 2013 U.S. App. LEXIS 19060 (6th Cir. Sept. 12, 2013): These two closely related cases involve Defendant Fortune Hi-Tech Marketing, Inc. ("Fortune Hi-Tech" or "FHTM"). Defendant hired Plaintiffs as independent representatives and Plaintiffs sued, alleging that FHTM was in fact ru ...
Day v. Fortune Hi-Tech Mktg., Inc., 2013 U.S. App. LEXIS 19060 (6th Cir. Sept. 12, 2013): These two closely related cases involve Defendant Fortune Hi-Tech Marketing, Inc. ("Fortune Hi-Tech" or "FHTM"). Defendant hired Plaintiffs as independent representatives and Plaintiffs sued,…
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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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