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 — “Unusual Circumstances” Warranting Fees Most Likely for Improper Purpose —Rule 1.6(b)(5) in Sanctions Proceedings — Good Quote on Counsel’s Right to Rely on Client — Judicial Endorsement of Position Augurs against Sanctions

Philos Techs., Inc. v. Philos & D, Inc., 2013 U.S. Dist. LEXIS 66048 (N.D. Ill. May 8, 2013) PLS Tech Korea ("PLS Tech") is a South Korean company, founded by Jong Ho Philos Ko ("J. Ko"), that specializes in heat treatment technology (F. ¶1). On December 20, 2007 Don-Hee and Jaehee Park (referred to singularly by their first names and collecti ...
Philos Techs., Inc. v. Philos & D, Inc., 2013 U.S. Dist. LEXIS 66048 (N.D. Ill. May 8, 2013) PLS Tech Korea (“PLS Tech”) is a South Korean company, founded by Jong Ho Philos Ko (“J. Ko”), that specializes in heat…
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Sanctions — Dismissal or Default under Rule 37 — Bad Faith Required — Tenth Circuit’s 3-Part Test — Pro Se Defaulted — Sanction Must Be Just and Related to Claim at Issue (Good Quote)

Klein-Becker USA, LLC v. Englert, 2013 U.S. App. LEXIS 6191 (10th Cir. Mar. 27, 2013): Klein-Becker USA and Klein-Becker IP Holdings (collectively "Klein-Becker") sued Patrick Englert and Mr. Finest, Inc., for trademark infringement, copyright infringement, false advertising, and unfair competition under the Lanham Act; false advertisin ...
Klein-Becker USA, LLC v. Englert, 2013 U.S. App. LEXIS 6191 (10th Cir. Mar. 27, 2013): Klein-Becker USA and Klein-Becker IP Holdings (collectively “Klein-Becker”) sued Patrick Englert and Mr. Finest, Inc., for trademark infringement, copyright infringement, false advertising, and unfair competition…
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Derivative Actions — State Law Sets Demand Requirement in Diversity Action — Also in Federal Question Case If Federal Policies Not Frustrated — State-Law Demand Requirement Applies in RICO Action

Gomes v. Am. Century Cos., 2013 U.S. App. LEXIS 6184 (8th Cir. Mar. 28, 2013): Nelson Gomes, an investor in the American Century International Discovery Fund ("the Fund"), brought Maryland common-law claims and federal racketeering claims for violations of 18 U.S.C. §§ 1962(c) and (d) against the appellees, who are the Fund's fiduciari ...
Gomes v. Am. Century Cos., 2013 U.S. App. LEXIS 6184 (8th Cir. Mar. 28, 2013): Nelson Gomes, an investor in the American Century International Discovery Fund (“the Fund”), brought Maryland common-law claims and federal racketeering claims for violations of 18…
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MTD for Lack of Standing Is under 12(b)(1) (No Subject Matter Jurisdiction), Not 12(b)(6) — Dismissal Is Not on Merits and Is Presumptively without Prejudice — Complaint Must Allege Non-Conclusory Facts Showing Jurisdiction

Allstate Ins. Co. v. Global Med. Billing, Inc., 2013 U.S. App. LEXIS 7277 (6th Cir. April 8, 2013): We review a dismissal for lack of standing de novo. McGlone v. Bell, 681 F.3d 718, 728 (6th Cir. 2012) (citing Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 348 (6th Cir. 2007)). Although the parties and the district court con ...
Allstate Ins. Co. v. Global Med. Billing, Inc., 2013 U.S. App. LEXIS 7277 (6th Cir. April 8, 2013): We review a dismissal for lack of standing de novo. McGlone v. Bell, 681 F.3d 718, 728 (6th Cir. 2012) (citing Prime…
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Spoliation Sanctions — Eleventh Circuit’s Five-Factor Test — Prejudice and Practical Importance of Destroyed Evidence Are Critical

McLeod v. Wal-Mart Stores, Inc., 2013 U.S. App. LEXIS 6669 (11th Cir. April 3, 2013): Debra Kathleen McLeod appeals the district court's grant of summary judgment in favor of Defendants Wal-Mart Stores, Inc., Wal-Mart Stores East, LP, and Wal-Mart Associates, Inc. ("Wal-Mart") in her suit for false arrest, malicious prosecution, and int ...
McLeod v. Wal-Mart Stores, Inc., 2013 U.S. App. LEXIS 6669 (11th Cir. April 3, 2013): Debra Kathleen McLeod appeals the district court’s grant of summary judgment in favor of Defendants Wal-Mart Stores, Inc., Wal-Mart Stores East, LP, and Wal-Mart Associates,…
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“RICO Was Intended to Combat Organized Crime, Not to Provide a Federal Cause of Action and Treble Damages to Every Tort Plaintiff” — Good Quote

Boar, Inc. v. County of Nye, 499 Fed. App’x 713 (9th Cir. 2012): In 2007, Karl and Maverick Snowdon purchased a parcel of land located on 3271 S. Homestead Road in Pahrump, Nevada that they intended to commercially develop. Over the following years, however, the Snowdons would repeatedly be dismayed to discover that there were various ...
Boar, Inc. v. County of Nye, 499 Fed. App’x 713 (9th Cir. 2012): In 2007, Karl and Maverick Snowdon purchased a parcel of land located on 3271 S. Homestead Road in Pahrump, Nevada that they intended to commercially develop. Over…
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Sanctions — Hyde Amendment — Criminal Defendants May Seek Fees for Vexatious, Frivolous or Bad Faith Prosecution — Court

United States v. Manzo, 712 F.3d 805 (3d Cir. 2013): Under a statutory provision known as the "Hyde Amendment," a district court in criminal cases "may award to a prevailing party, other than the United States, a reasonable attorney's fee and other litigation expenses, where the court finds that the position of the United States was ...
United States v. Manzo, 712 F.3d 805 (3d Cir. 2013): Under a statutory provision known as the “Hyde Amendment,” a district court in criminal cases “may award to a prevailing party, other than the United States, a reasonable attorney’s fee…
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Is a National Bank a Citizen Only of the State Housing Its “Main Office” or Also of the State Where Its Principal Place of Business Is Located? Caselaw Split

Adams v. Wells Fargo Bank, N.A., 2013 U.S. Dist. LEXIS 65353 (N.D. Cal. May 7, 2013): Plaintiffs, Christopher D. Adams and Sheila K. Adams, brought this action in state court seeking redress for several statutory and common law violations arising from the origination of their residential mortgage loan. Both Plaintiffs are California cit ...
Adams v. Wells Fargo Bank, N.A., 2013 U.S. Dist. LEXIS 65353 (N.D. Cal. May 7, 2013): Plaintiffs, Christopher D. Adams and Sheila K. Adams, brought this action in state court seeking redress for several statutory and common law violations arising…
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Negligent Spoliation — Sanctions — Deeming Certain Facts Admitted and Precluding Certain Arguments Does Not Prevent Summary Judgment in Favor of Spoliator — Bad Faith Required for Adverse Inference in Seventh Circuit

Northington v. H & M Int’l, 712 F.3d 1062 (7th Cir. 2013): This is a Title VII case involving two issues on appeal: whether in a grant of summary judgment there was any relevant issue of material fact and whether a discovery sanction was properly applied and adhered to by the district court. Since 2005, plaintiff-appellant Ehn ...
Northington v. H & M Int’l, 712 F.3d 1062 (7th Cir. 2013): This is a Title VII case involving two issues on appeal: whether in a grant of summary judgment there was any relevant issue of material fact and whether…
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Mohawk Bars Collateral Order Review of Adverse Privilege Decision Entered against Non-Party as Well as Party — Perlman Review Also Unavailable to Parties Where Subpoenas Served on Counsel Who Gave the Advice Parties Rely on as Defense

United States v. Copar Pumice Co., Inc., 2013 U.S. App. LEXIS 9148 (10th Cir. May 6, 2013): This is an interlocutory appeal arising out of an action filed by the United States against Defendants Kelly Armstrong, Debbie Cantrup, Richard Cook, Shirley Cook (collectively "the Cooks"), and Copar Pumice Company, Inc. ("Copar") for trespass, ...
United States v. Copar Pumice Co., Inc., 2013 U.S. App. LEXIS 9148 (10th Cir. May 6, 2013): This is an interlocutory appeal arising out of an action filed by the United States against Defendants Kelly Armstrong, Debbie Cantrup, Richard Cook,…
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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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