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

Appellate Court Looks Skeptically on Sanction Issued Sua Sponte without Explanation As to Why It Was Necessary — Improper Purpose vs. Harmful Effect — No Inherent Power Sanction If Rule 11 Apt

Kenyon Int’l Emergency Servs. Inc. v. Malcolm, 2013 U.S. App. LEXIS 9704 (5th Cir. May 14, 2013): The district court's written order does not specify the basis for sanctions, although its oral statement indicates they were imposed for Faubus's "having filed the irrelevantly scurrilous e-mail" that graphically documented Employee A ...
Kenyon Int’l Emergency Servs. Inc. v. Malcolm, 2013 U.S. App. LEXIS 9704 (5th Cir. May 14, 2013): The district court’s written order does not specify the basis for sanctions, although its oral statement indicates they were imposed for Faubus’s “having…
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District Court Cannot Dismiss with Prejudice under Rule 12(b)(1) Because by Definition It Lacks Jurisdiction over the Claim — Court May Dismiss with Prejudice under 12(b)(6) for Lack of Statutory, But Not Article III, Standing

Cox, Cox, Filo, Camel & Wilson, L.L.C. v. Sasol N. Am., Inc., 2013 U.S. App. LEXIS 10572 (5th Cir. May 24, 2013): This case presents the question whether, under Federal Rule of Civil Procedure 12(b)(1), a district court may dismiss a claim with prejudice to the merits of that claim. We hold that it may not, and therefore VACATE and REMA ...
Cox, Cox, Filo, Camel & Wilson, L.L.C. v. Sasol N. Am., Inc., 2013 U.S. App. LEXIS 10572 (5th Cir. May 24, 2013): This case presents the question whether, under Federal Rule of Civil Procedure 12(b)(1), a district court may dismiss…
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More Rigorous Abuse of Discretion Review Applied to Civil Contempt Citation — Standards for Civil Contempt — Corporation/Appellee That Fails to Retain Counsel Defaults on Appeal But Court Here Still Proceeds to Merits

Liberty Propane L.P. v. Fehely, 2013 U.S. App. LEXIS 10617 (2d Cir. May 28, 2013): Where, as here, a district court holds a party in civil contempt and imposes sanctions for a bad-faith violation of a prior court order, we review the contempt finding "under an abuse of discretion standard that is more rigorous than usual, and we con ...
Liberty Propane L.P. v. Fehely, 2013 U.S. App. LEXIS 10617 (2d Cir. May 28, 2013): Where, as here, a district court holds a party in civil contempt and imposes sanctions for a bad-faith violation of a prior court order, we…
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A Sine Qua Non of Spoliation Is That the Alleged Spoliator Be on Notice That the Evidence Is Potentially Relevant to Litigiation

Wyatt Tech. Corp. v. Malvern Instruments, Inc., 2013 U.S. App. LEXIS 9843 (9th Cir. May 16, 2013): The heft of Wyatt's claims against Malvern--specifically, Wyatt's copyright infringement claims--required Wyatt to proffer some evidence that Malvern's software was substantially similar to Dynamics. L.A. Printex Indus., Inc. v. Aeropostal ...
Wyatt Tech. Corp. v. Malvern Instruments, Inc., 2013 U.S. App. LEXIS 9843 (9th Cir. May 16, 2013): The heft of Wyatt’s claims against Malvern–specifically, Wyatt’s copyright infringement claims–required Wyatt to proffer some evidence that Malvern’s software was substantially similar to…
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Severe vs. Lesser Sanctions — Fifth Circuit Standards for Each — Deeming Facts Admitted Is a Lesser Sanction That Need Only Be “Just and Fair”

Alexsam, Inc. v. IDT Corp., 2013 U.S. App. LEXIS 10009 (Fed. Cir. May 20, 2013): In January 2011, following the close of discovery, Alexsam moved for sanctions pursuant to Rule 37 of the Federal Rules of Civil Procedure, alleging that IDT had failed to disclose information suggesting that the miscellaneous systems infringe Alexsam's pat ...
Alexsam, Inc. v. IDT Corp., 2013 U.S. App. LEXIS 10009 (Fed. Cir. May 20, 2013): In January 2011, following the close of discovery, Alexsam moved for sanctions pursuant to Rule 37 of the Federal Rules of Civil Procedure, alleging that…
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Admissibility of Intrinsic vs. Extrinsic Evidence of Other Bad Acts under Federal Rule of Evidence 404(b) — ABA Judicial Recusal Standards

United States v. Ciavarella, 2013 U.S. App. LEXIS 10513 (3d Cir. May 24, 2013): Mark Ciavarella, a former state judge, was convicted by a jury in the Middle District of Pennsylvania of racketeering, honest services mail fraud, money laundering conspiracy, filing false tax returns, and several other related crimes. The charges resulted f ...
United States v. Ciavarella, 2013 U.S. App. LEXIS 10513 (3d Cir. May 24, 2013): Mark Ciavarella, a former state judge, was convicted by a jury in the Middle District of Pennsylvania of racketeering, honest services mail fraud, money laundering conspiracy,…
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Once Arbitration Compelled, District Court Lacks Ability to Stay It — The Question Is for the Arbitrator

C. Stay Pending a Decision from the Supreme Court Smith v. ServiceMaster Holding Corp., 2013 U.S. Dist. LEXIS 71661 (W.D. Tenn. May 21, 2013): Defendants assert that "this Court should stay the arbitration until the Supreme Court clarifies the standard of review for vacating [arbitration] clause construction awards." ( ...
C. Stay Pending a Decision from the Supreme Court Smith v. ServiceMaster Holding Corp., 2013 U.S. Dist. LEXIS 71661 (W.D. Tenn. May 21, 2013): Defendants assert that “this Court should stay the arbitration until the Supreme Court clarifies the standard…
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Sanctions: If Rule or Statutory Power (Including § 1927) Available, Court Should Not Invoke Inherent Power — D.C. Circuit State of Mind for § 1927 Unsettled But Clear & Convincing Proof Required — Law Firm Vicarious Liability

Animal Welfare Inst. v. Feld Entm’t, Inc., 2013 U.S. Dist. LEXIS 68522 (D.D.C. Mar. 29, 2013): B. Inherent Authority In addition to powers deriving from rule or statute, courts also have inherent authority to sanction litigation misconduct when a party has "acted in bad faith, vexatiously, wantonly, or for oppressive ...
Animal Welfare Inst. v. Feld Entm’t, Inc., 2013 U.S. Dist. LEXIS 68522 (D.D.C. Mar. 29, 2013): B. Inherent Authority In addition to powers deriving from rule or statute, courts also have inherent authority to sanction litigation misconduct when a party…
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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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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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