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

Bankruptcy: Presumptive Sanction for Breach of § 329(a) (Fee Agreements) Is Loss of All Fees —Not Least Severe Sanction — Rule 11 Inapt — Mitigating Circumstances Must Be Compelling

SE Prop. Holdings, LLC v. Stewart (In re Stewart), 2020 U.S. App. LEXIS 25882 (10th Cir. Aug. 14, 2020): Attorney Ruston Welch received $348,404.41 in fees for representing David and Terry Stewart in their C ...
SE Prop. Holdings, LLC v. Stewart (In re Stewart), 2020 U.S. App. LEXIS 25882 (10th Cir. Aug. 14, 2020): Attorney Ruston Welch received $348,404.41 in fees for representing David and Terry Stewart in their Chapter 7 bankruptcy proceedings. This appeal …
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Inherent Power Sanctions for Ethical Rule Violations: Insulting Counsel, Mediator, Court Rptr; Physical Threat — Reprimand As Serious SX — Bad Faith Needed Only for Fees — Due Process: Notice of Type, Severity of Possible SX Critical

   Golden v. Clear Advantage Mktg., 2020 U.S. Dist. LEXIS 88130,2020 WL 2516671 (S.D. Iowa Mar. 30, 2020): *1 The issues now before the court present a pure credibility dispute, alth ...
Golden v. Clear Advantage Mktg., 2020 U.S. Dist. LEXIS 88130,2020 WL 2516671 (S.D. Iowa Mar. 30, 2020): *1 The issues now before the court present a pure credibility dispute, although not concerning the merits of the underlying copyright and…
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Spoliation Sanctions: Preclusion for Failing to Preserve Most Data-Filled Form of ESI — Alt’ve Not Reasonably Usable — Preclusion ¹ Dispositive (MJ) If Other Evid. Exists — 2d Cir. Disc’y Sxs Factors (Pro, Con)—Client Sx’d for Atty Error

 Joint Stock Co. "Channel One Russ. Worldwide" v. Infomir LLC, 2020 U.S. Dist. LEXIS 63099 (S.D.N.Y. Mar. 26, 2020): Plaintiffs, a group of Russian television broadcasters, commenced this a ...
Joint Stock Co. "Channel One Russ. Worldwide" v. Infomir LLC, 2020 U.S. Dist. LEXIS 63099 (S.D.N.Y. Mar. 26, 2020): Plaintiffs, a group of Russian television broadcasters, commenced this action on February 19, 2016 against various Defendants, [*3]  including Infomir LLC …
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Facebook Authentication: FB Certification of Identity of Page Owner + Circumstantial Evidence Explaining Why S/he’d Defriend 2nd ID’ed FB Subscriber Authenticatse Defriending — Rule 901(a) Test: Could Reasonable Juror Could Find Auth. by Preponderance

State v. Sample, 2020 WL 2316709 (Md. Ct. App. May 11, 2020): *1 It is axiomatic that for a trial court to admit evidence, there must be sufficient indicia that the evidence is authentic—i.e., that the evidence “is what its proponent claims.” Md. R. 5-901(a). A party can sufficiently authenticate eviden ...
State v. Sample, 2020 WL 2316709 (Md. Ct. App. May 11, 2020): *1 It is axiomatic that for a trial court to admit evidence, there must be sufficient indicia that the evidence is authentic—i.e., that the evidence “is what its…
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Supreme Court: Party May Assert Defense in 2nd Action, Even If It Could Have Been Asserted in 1st Action, Unless It Would Violate Traditional Res Judicata Principles — Issue Or Claim Preclusion (Merger Or Bar)

 Lucky Brand Dungarees v. Marcel Fashions Group, 2020 U.S. LEXIS 2642 (U.S. May 14, 2020): This case arises from protracted litigation between petitioners Lucky Brand Dungarees, Inc., and others (collectiv ...
Lucky Brand Dungarees v. Marcel Fashions Group, 2020 U.S. LEXIS 2642 (U.S. May 14, 2020): This case arises from protracted litigation between petitioners Lucky Brand Dungarees, Inc., and others (collectively Lucky Brand) and respondent Marcel Fashions Group, Inc. (Marcel). In …
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§1927 Liability Can Be Joint/Several with Client Who Is Otherwise Sanctioned for Same Acts — Colorable Claims Can Be Pursued Vexatiously — Bad Faith Not Required in 10th Cir. — Reckless Indifference to Duties to Court Enough

 Snyder v. Acord Corp., 2020 U.S. App. LEXIS 12889 (10th Cir. April 22, 2020) ORDER AND JUDGMENT* Seventeen Colorado homeowners ("Pla ...
Snyder v. Acord Corp., 2020 U.S. App. LEXIS 12889 (10th Cir. April 22, 2020) ORDER AND JUDGMENT* Seventeen Colorado homeowners (“Plaintiffs”) brought an action raising federal-and state-law claims against insurance companies, trade associations, and consulting firms (“Defendants”). The district…
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Court Rarely Finds Plain Error on Matters of First Impression

 United States v. Cooper, 2020 U.S. App. LEXIS 13873 (7th Cir. April 30, 2020): *** On appeal, Cooper argues for the first time that he was entitled to a full, plenary resentencing hearing and that he ...
United States v. Cooper, 2020 U.S. App. LEXIS 13873 (7th Cir. April 30, 2020): *** On appeal, Cooper argues for the first time that he was entitled to a full, plenary resentencing hearing and that he was entitled to be…
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Circuit Split Elsewhere Precludes Finding of Plain Error, As Does A Lack of Binding Precedent in the Circuit

United States v. Abrams, 2020 U.S. App. LEXIS 14090 (6th Cir. May 1, 2020): *** We cannot declare an error to be "plain" "unless the error is clear under current law."
United States v. Abrams, 2020 U.S. App. LEXIS 14090 (6th Cir. May 1, 2020): *** We cannot declare an error to be "plain" "unless the error is clear under current law." United States v. Olano, 507 U.S. 725, 734, …
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Attorney-Client Privilege: Crime-Fraud Exception Applies Even If Crime Or Fraud Is Only Counsel’s (Circuit Split) — Rule 11 Sanctions: Successor Counsel Not Liable for Predecessor’s Misconduct — Noerr Pennington No Defense to Discovery

Navient Sols., LLC v. Law Offices of Jeffrey Lohman, 2020 U.S. Dist. LEXIS 69846 (E.D. Va. April 20, 2020): Before the Court is defendants The Law Offices of Jeffrey Lohman's and Jeffrey Lohman's (col ...
Navient Sols., LLC v. Law Offices of Jeffrey Lohman, 2020 U.S. Dist. LEXIS 69846 (E.D. Va. April 20, 2020): Before the Court is defendants The Law Offices of Jeffrey Lohman's and Jeffrey Lohman's (collectively, "LOJL") Objection to the…
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Rule 11: Court Can’t Compel Party to Make Settlement Offer — Any Settlement Void — Denial of SJ Motion = Not Frivolous — Failure to Settle Not Sanctionable — Generally No Improper Purpose Sanction If Position Grounded in Fact, Law

 Tejero v. Portfolio Recovery Assocs., L.L.C., 2020 U.S. App. LEXIS 10711Luis Tejero sued Portfolio Recovery Associates, L.L.C. under the federal Fair Debt Collection Practices Act and a parallel state law. The parties ...
Tejero v. Portfolio Recovery Assocs., L.L.C., 2020 U.S. App. LEXIS 10711Luis Tejero sued Portfolio Recovery Associates, L.L.C. under the federal Fair Debt Collection Practices Act and a parallel state law. The parties eventually reached a settlement that forgave Tejero's …
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Recent Posts

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

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

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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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