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

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If All Opinions Are Now Citable, What Does It Mean to Have a Court Rule Saying the Opinion Is Non-Precedential?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 This unpublished memorandum opinion is intended solely to inform the parties and any reviewing court of the basis for the instant ruling, or, alternatively, to assist in any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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Attorney-Client Privilege — Assertion of Noerr-Pennington Defense, Which Protects Pre-Litigation Activity, Does Not Waive Privilege Despite Opponent’s Invocation of Sham Exception

Rock River Commc’ns, Inc. v. Universal Music Group, Inc., 2013 U.S. App. LEXIS 19257 (9th Cir. Sept. 18, 2013): In October 2007 ... UMG sent a cease-and-desist letter to Rock River claiming that UMG owned exclusive licensing rights to all the Recordings remixed on the album "Roots, Rock, Remixed" and that Rock River therefore cou ...
Rock River Commc’ns, Inc. v. Universal Music Group, Inc., 2013 U.S. App. LEXIS 19257 (9th Cir. Sept. 18, 2013): In October 2007 … UMG sent a cease-and-desist letter to Rock River claiming that UMG owned exclusive licensing rights to all…
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Third Circuit Rejects Non-Precedential Opinion Triggering Rule 11 Safe Harbor Period via Letter — Post-Motion Conduct Not Sanctionable Due to Lack of Notice

In re Miller (Ettinger & Assocs. LLC v. Miller), 2013 U.S. App. LEXIS 19090 (3d Cir. Sept. 16, 2013): 1. Initial Motion for Sanctions On January 31, 2011, the Millers filed and served on Ettinger and Tsarouhis a Rule 9011 Motion for Sanctions ("Initial Motion"). It asserted that Ettinger's compla ...
In re Miller (Ettinger & Assocs. LLC v. Miller), 2013 U.S. App. LEXIS 19090 (3d Cir. Sept. 16, 2013): 1. Initial Motion for Sanctions On January 31, 2011, the Millers filed and served on Ettinger and Tsarouhis a Rule 9011…
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§ 1927 Sanctions — Meaning of “Unreasonably and Vexatiously” — “A case may be weak, but as long as it is not without circumstantial foundation, it is not frivolous” (Good Quote)

§ 1927 Sanctions — Meaning of “Unreasonably and Vexatiously” —  "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, ...
§ 1927 Sanctions — Meaning of “Unreasonably and Vexatiously” —  "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…
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Recent Posts

RICO: Indirect Injury Unrecoverable — Indirect Purchaser Rule Imported from Antitrust

Rule 11 Sanctions: (1) Improper Purpose of Harassment Reasonably Determined Based on Past Tactics (25 Lawsuits, 14 Ethics Complaints, and 150 FOIA Requests) As Well As Present Behavior — (2) Hearings Are Not Only Not Required to Satisfy Due Process But, If The Record Is Otherwise Adequate, Are Affirmatively Discouraged

RICO and Probate Exception to Federal Jurisdiction: Federal Jurisdiction over RICO Claim Not Barred by Probate Exception Even If the Federal Judgment May Be Binding on the Probate Proceedings (Or Vice Versa) — Calculating Damages Based on Diminution of Value of Estate ≠ Administration of the Estate — Doesn’t Matter If RICO Misconduct Includes Defendants’ Actions with Respect to The Estate

RICO: No Causation Where Harm Flowed Several Steps After the Fraudulent Acts — RICO Causation Same As Antitrust Causation

Sanctions vs. Automatic Stay: Imposition of Sanctions (Here, Inherent Power Sanctions) Is Subject to the Police Power Exception to the Automatic Stay in Bankruptcy

The Word “Include” May Be A Word of Limitation As Opposed to a Word of Enlargement, Depending on the Context

RICO — Pleading Conspiracy — Plaintiffs Must Plausibly Allege That the Defendants Knowingly Joined the RICO Conspiracy — Sparse Allegations of Knowledge of Fraud Due to Participation in a Commercial Transaction Insufficient to State RICO Conspiracy Claim Where Allegations Not Inconsistent with Ordinary Commercial Behavior — While Knowledge May Be Pled “Generally” under Rule 9(b), It Cannot Be Alleged Conclusorily and Must Satisfy the Twiqbal Plausibility Standard

Depositions: Improper to Object to Form to Straightforward Questions (Not Compound, Vague, Leading or Speculative) — Lack of Foundation Objection Improper in 30(b)(6) Deposition — Improper to “Educate” Witness During Breaks of 30(b)(6) Deposition Through Witness Calls to Knowledgeable Corporate Colleagues — Magistrate Judge May Impose Financial Sanctions

Spoliation/Sanctions: “A Party Does Not Spoliate Evidence When, Without Notice Of The Evidence’s Potential Relevance, It Destroys The Evidence According To Its Policy Or In The Normal Course Of Its Business” (Good Quote)

RICO: Fraud on Government Entities Causing Plaintiffs to Pay More for Inmate Calls Actionable on Bridge v. Phoenix Bond Analysis — Fact That Governments Had Separate Injuries As Part of the Scheme (from Reduced Commissions) Irrelevant — Plaintiffs’ Injuries Not Derivative of Governments’ — The Fraud on the Governments Was Not Too Distinct From Plaintiffs’ Injuries But Rather Necessary to Injure Plaintiffs — No Risk of Duplicative Recoveries and No Plaintiff Better Situated to Sue for Plaintiffs’ Injuries

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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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