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

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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Inherent Power Sanctions — How Bad Faith May Be Demonstrated

Miller v. Am. Family Mut. Ins. Co., 2013 U.S. App. LEXIS 13744 (9th Cir. July 8, 2013): Mr. Miller acknowledges that the district court has the inherent power to impose sanctions for bad faith conduct by litigants. See generally Chambers v. NASCO, Inc., 501 U.S. 32, 46-51 (1991). He nevertheless contends that the district court erred ...
Miller v. Am. Family Mut. Ins. Co., 2013 U.S. App. LEXIS 13744 (9th Cir. July 8, 2013): Mr. Miller acknowledges that the district court has the inherent power to impose sanctions for bad faith conduct by litigants. See generally Chambers…
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Primary Jurisdiction Doctrine — Factors

Hood v. Wholesoy & Co., 2013 U.S. Dist. LEXIS 97836 (N.D. Cal. July 12, 2013): Pending before the Court is the Motion of Defendants Wholesoy & Co., Modesto Wholesoy Company LLC, The Wholesoy Company, Tan Industries, Inc., Ken Nordquist, and Ted Nordquist (collectively "Wholesoy") to Dismiss the class action complaint of Plaintiff Janet ...
Hood v. Wholesoy & Co., 2013 U.S. Dist. LEXIS 97836 (N.D. Cal. July 12, 2013): Pending before the Court is the Motion of Defendants Wholesoy & Co., Modesto Wholesoy Company LLC, The Wholesoy Company, Tan Industries, Inc., Ken Nordquist, and…
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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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