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 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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While Failure to Object to Magistrate Judge’s Report within 14 Days Waives Review of That Decision If the Report Explicitly So States (with Citations), the Waiver Rule Is Non-Jurisdictional and May Be Excused

Zaretsky v. Maxi Aids, Inc., 2013 U.S. App. LEXIS 14312 (2d Cir. July 16, 2013): Appellants Feige Zaretsky and Aaron Berlin, pro se, appeal from a final judgment dismissing their amended complaint pursuant to Federal Rules of Civil Procedure 16(f), for failure to comply with a court order, and 41(b), for failure to prosecute. Appellants ...
Zaretsky v. Maxi Aids, Inc., 2013 U.S. App. LEXIS 14312 (2d Cir. July 16, 2013): Appellants Feige Zaretsky and Aaron Berlin, pro se, appeal from a final judgment dismissing their amended complaint pursuant to Federal Rules of Civil Procedure 16(f),…
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When Summary Judgment Allowed on Claims Requiring Proof of Intent — RICO Enterprise of Affiliated and Unaffiliated Entities and Employees Upheld — Prejudgment Interest Plus Punitive Damages Permitted, and at Higher State Rate — Good Quotes

In re ClassicStar Mare Lease Litig., 2013 U.S. App. LEXIS 14518 (6th Cir. July 18, 2013): Defendants argue that summary judgment was inappropriate because there are disputed issues of fact as to whether they intended to defraud Plaintiffs through the Mare Lease Program. Defendants assert that the district court improperly relied only on ...
In re ClassicStar Mare Lease Litig., 2013 U.S. App. LEXIS 14518 (6th Cir. July 18, 2013): Defendants argue that summary judgment was inappropriate because there are disputed issues of fact as to whether they intended to defraud Plaintiffs through the…
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Default Judgment for Discovery Violations — Factors for Review of Rule 37 Sanctions — Severe & Otherwise — Second Circuit

Guggenheim Capital, LLC v. Birnbaum, 2013 U.S. App. LEXIS 14195 (2d Cir. July 15, 2013): "If a party . . . fails to obey an order to provide or permit discovery," the district court may impose sanctions, including "rendering a default judgment against the disobedient party." Fed. R. Civ. P. 37(b)(2)(A)(vi). Certain Rule 37 remedies ...
Guggenheim Capital, LLC v. Birnbaum, 2013 U.S. App. LEXIS 14195 (2d Cir. July 15, 2013): “If a party . . . fails to obey an order to provide or permit discovery,” the district court may impose sanctions, including “rendering a…
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Circuit Split: Can Defendant Moot Class Action by Offering Full Individual Relief before Certification Motion Filed? — Impact of Supreme Court’s 2013 Genesis Decision — “Inherently Transitory” Rationale Inapt

Keim v. ADF Midatlantic, LLC, 2013 U.S. Dist. LEXIS 98373 (S.D. Fla. July 12, 2013): "To allow a case, not certified as a class action and with no motion for class certification even pending, to continue in federal court when the sole plaintiff no longer maintains a personal stake defies the limits on federal jurisdiction expressed ...
Keim v. ADF Midatlantic, LLC, 2013 U.S. Dist. LEXIS 98373 (S.D. Fla. July 12, 2013): “To allow a case, not certified as a class action and with no motion for class certification even pending, to continue in federal court when…
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RICO — Enterprise Consisting of Corporate President, His Assistant and His Off-the-Books Wholly-Owned Entity Satisfies Distinctiveness Requirement of § 1962(c) Where All 3 Are Also Defendants

Mega Concrete, Inc. v. Smith, 2013 U.S. Dist. LEXIS 98660 (E.D. Pa. July 15, 2013): This lawsuit involves allegations that two former employees of the plaintiff construction companies, defendants Michael Smith and Kimberly Lawson, conspired and collaborated with others to steal the plaintiffs' resources, manpower, business opportunities ...
Mega Concrete, Inc. v. Smith, 2013 U.S. Dist. LEXIS 98660 (E.D. Pa. July 15, 2013): This lawsuit involves allegations that two former employees of the plaintiff construction companies, defendants Michael Smith and Kimberly Lawson, conspired and collaborated with others to…
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Standards for Dismissal under Rules 37 and 41(b) — Rule 37 Factors Not Exhaustive — Each Need Not Be Satisfied If Order Is “Just” — Pro Se Must Be Warned before Sanction of Dismissal Imposed — 41(b) Dismissal May Be Sua Sponte

Manigaulte v. C.W. Post of Long Island Univ., 2013 U.S. App. LEXIS 14096 (2d Cir. July 12, 2013): While "dismissal with prejudice is a harsh remedy to be used only in extreme situations, and then only when a court finds willfulness, bad faith, or any fault by the non-compliant litigant," Agiwal, 555 F.3d at 302 (internal quotat ...
Manigaulte v. C.W. Post of Long Island Univ., 2013 U.S. App. LEXIS 14096 (2d Cir. July 12, 2013): While “dismissal with prejudice is a harsh remedy to be used only in extreme situations, and then only when a court finds…
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Governmental Entity (Municipal Corporation) Cannot Be Sued under RICO Because Treble Damage Remedy Is Primarily Punitive

Tengood v. City of Philadelphia, 2013 U.S. App. LEXIS 12151 (3d Cir. June 17, 2013): Appellant challenges the district court's entry of summary judgment in favor of the City on Counts 1 and 2 of the Complaint, alleging it was error to conclude that the City cannot be subject to RICO liability. This argument is foreclosed by our decision ...
Tengood v. City of Philadelphia, 2013 U.S. App. LEXIS 12151 (3d Cir. June 17, 2013): Appellant challenges the district court’s entry of summary judgment in favor of the City on Counts 1 and 2 of the Complaint, alleging it was…
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Duty Imposed by Contract Clause Requiring “Best Efforts” — Good Faith and Fair Dealing Claim Redundant of Breach of Contract Claim

Cruz v. FXDirectDealer, LLC, 2013 U.S. App. LEXIS 12448 (2d Cir. June 19, 2013): C. Breach of Contract Claim Cruz claims that FXDD breached the Agreement by failing to use its "best efforts" to execute customer trade orders. FXDD responds that Cruz's breach of contract claim fails because the Agreement warns that FXDD ma ...
Cruz v. FXDirectDealer, LLC, 2013 U.S. App. LEXIS 12448 (2d Cir. June 19, 2013): C. Breach of Contract Claim Cruz claims that FXDD breached the Agreement by failing to use its “best efforts” to execute customer trade orders. FXDD responds…
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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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