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

Rule 11 and § 1927 Sanctions Reversed Because Appellate Court Finds Position Deemed “Frivolous” by District Court to be “Substantial” and Potentially Meritorious

Leveski v. ITT Educ. Servs., Inc., 2013 U.S. App. LEXIS 13722 (7th Cir. July 8, 2013): Given our finding that Leveski's allegations are sufficiently distinguishable from Graves--not to mention our finding that she has direct and independent knowledge of her allegations--our sanctions analysis becomes quite easy. The district judge s ...
Leveski v. ITT Educ. Servs., Inc., 2013 U.S. App. LEXIS 13722 (7th Cir. July 8, 2013): Given our finding that Leveski’s allegations are sufficiently distinguishable from Graves–not to mention our finding that she has direct and independent knowledge of her…
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Arbitration — Order Compelling Arbitration and Administratively Closing, But Not Dismissing, Action Is Appealable As a “Final Decision” within FAA § 16(a)(3)

Montero v. Carnival Corp., 2013 U.S. App. LEXIS 14141 (11th Cir. July 12, 2013): As an initial matter, Carnival contends that we lack jurisdiction because the district court's order compelling arbitration was a non-appealable interlocutory order, instead of an appealable final decision, because it did not dismiss Montero's claims. A ...
Montero v. Carnival Corp., 2013 U.S. App. LEXIS 14141 (11th Cir. July 12, 2013): As an initial matter, Carnival contends that we lack jurisdiction because the district court’s order compelling arbitration was a non-appealable interlocutory order, instead of an appealable…
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Failure to Identify Sanctioned Counsel as Appellant Forgiven Where Intent of Appeal Obvious and No Prejudice Shown — Aspects of Appeal Waived for Failure to Develop Arguments in Brief

Olson v. Bank of America, N.A., 2013 U.S. App. LEXIS 13289 (8th Cir. June 28, 2013): Attorney William Butler appeals from the district court's order imposing sanctions against him under Federal Rule of Civil Procedure 11. We affirm. Footnote 2. Although the Appellees make no mention of it, we note that neit ...
Olson v. Bank of America, N.A., 2013 U.S. App. LEXIS 13289 (8th Cir. June 28, 2013): Attorney William Butler appeals from the district court’s order imposing sanctions against him under Federal Rule of Civil Procedure 11. We affirm. Footnote 2.…
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May the District Court Consider New Evidence when Reviewing De Novo a Magistrate Judge’s Findings and Recommendation? — Circuit Split — Even If It May, Doing So Is Discretionary

B&K Livestock Auction, Inc. v. Or. Dep’t of Envtl. Quality, 2013 U.S. Dist. LEXIS 107254 (D. Or. July 31, 2013): Plaintiff raised new arguments in its objections to the Findings and Recommendation. Defendants argue that this Court should exercise its discretion and decline to consider Plaintiff's new arguments. The Magistrate's Act ...
B&K Livestock Auction, Inc. v. Or. Dep’t of Envtl. Quality, 2013 U.S. Dist. LEXIS 107254 (D. Or. July 31, 2013): Plaintiff raised new arguments in its objections to the Findings and Recommendation. Defendants argue that this Court should exercise its…
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Electronic Discovery — Almost No ESI-Related Costs Are Recoverable as “Costs” under 28 U.S.C. § 1920 — Meaning of “Making Copies” and “Exemplification”

Country Vintner of NC, LLC v. E & J Gallo Winery, Inc., 718 F.3d 249 (4th Cir. 2013): In this case we clarify what expenses related to electronically stored information ("ESI") are taxable under the federal taxation-of-costs statute as "[f]ees for exemplification and the costs of making copies of any materials where the copies are neces ...
Country Vintner of NC, LLC v. E & J Gallo Winery, Inc., 718 F.3d 249 (4th Cir. 2013): In this case we clarify what expenses related to electronically stored information (“ESI”) are taxable under the federal taxation-of-costs statute as “[f]ees…
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Error to Impose Sanctions in 2013 under Pre-1993 Version of Rule 11

Webb v. LaSalle, 2013 U.S. App. LEXIS 15051 (5th Cir. July 2, 2013): Regarding the imposition of sanctions, however, the court did not apply current law, and its quotations from and references to Rule 11 do not appear to come from the text of that rule as it was largely amended in 1993 to make it more difficult to levy sanctions. (The ...
Webb v. LaSalle, 2013 U.S. App. LEXIS 15051 (5th Cir. July 2, 2013): Regarding the imposition of sanctions, however, the court did not apply current law, and its quotations from and references to Rule 11 do not appear to come…
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Sua Sponte Rule 11 Sanctions — No Defense That Paralegal Erred in Misidentifying Judgment Debtor in Enforcement Action — It Was “Akin to Contempt” for Counsel of Record Not to Have Caught or Corrected the Error for Over a Year

iParametrics, LLC v. Howe, 2013 U.S. App. LEXIS 13204 (11th Cir. June 27, 2013): Scott M. Stevens, an attorney, appeals pro se the formal reprimand that he received for misrepresenting to the district court and a Georgia court that Jon Meier was indebted to iParametrics, LLC. The district court sua sponte sanctioned Stevens for viol ...
iParametrics, LLC v. Howe, 2013 U.S. App. LEXIS 13204 (11th Cir. June 27, 2013): Scott M. Stevens, an attorney, appeals pro se the formal reprimand that he received for misrepresenting to the district court and a Georgia court that Jon…
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Rule 26(e) Right to Supplement Does Not Permit a Filing Designed to Cure a Deficient Expert Report

SSS Enters. v. Nova Petroleum Realty LLC, 2013 U.S. App. LEXIS 14641 (4th Cir. July 19, 2013): At a pretrial conference, the district court ordered that the plaintiffs file their expert disclosures, as required by Federal Rule of Civil Procedure 26(a)(2)(B), by January 27, 2012. That rule requires that unless otherwise exempted, the disc ...
SSS Enters. v. Nova Petroleum Realty LLC, 2013 U.S. App. LEXIS 14641 (4th Cir. July 19, 2013): At a pretrial conference, the district court ordered that the plaintiffs file their expert disclosures, as required by Federal Rule of Civil Procedure…
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Good Faith Is No Defense to Citation for Civil Contempt If Violation of Injunction Is Proved by Clear and Convincing Evidence

N.L.R.B v. Flores, 2012 U.S. App. LEXIS 26981 (1st Cir. Aug. 6, 2012) (R&R): The party seeking an order of civil contempt must demonstrate by clear and convincing proof that the opposing party has violated the court's injunctive decree. Goya Foods, 290 F.3d at 77; Project B.A.S.I.C. v. Kemp, 947 F.2d 11, 16 (1st Cir. 1991).
N.L.R.B v. Flores, 2012 U.S. App. LEXIS 26981 (1st Cir. Aug. 6, 2012) (R&R): The party seeking an order of civil contempt must demonstrate by clear and convincing proof that the opposing party has violated the court’s injunctive decree. Goya…
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RICO — Third Circuit Requires a Minimum Duration of One Year for Closed-End Continuity

Battaist v. Arbors Mgmt., Inc., 2013 U.S. App. LEXIS 11815 (3d Cir. June 12, 2013): In order to state a cognizable RICO claim, Battiste's complaint must plausibly allege the following elements: "(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 495-96 ...
Battaist v. Arbors Mgmt., Inc., 2013 U.S. App. LEXIS 11815 (3d Cir. June 12, 2013): In order to state a cognizable RICO claim, Battiste’s complaint must plausibly allege the following elements: “(1) conduct (2) of an enterprise (3) through a…
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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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