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

Dismissal Appropriate Sanction for Deceiving the Court with False and Misleading Evidence

Brush v. Szekrenyi, 2012 U.S. App. LEXIS 23908 (9th Cir. Nov. 13, 2012): The district court did not abuse its discretion by dismissing Brush's action as a sanction after reviewing the evidence before it and concluding that Brush submitted fraudulent affidavits concerning alleged violations of his Eighth Amendment rights. See Tr ...
Brush v. Szekrenyi, 2012 U.S. App. LEXIS 23908 (9th Cir. Nov. 13, 2012): The district court did not abuse its discretion by dismissing Brush’s action as a sanction after reviewing the evidence before it and concluding that Brush submitted fraudulent…
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Rule 54(b) — Directing Entry of Final Judgment as to Some But Not All Parties or Claims — Factors and Review — Special Masters Entitled to Quasi-Judicial Immunity Even for Invoices for Services

Nystedt v. Nigro, 2012 U.S. App. LEXIS 23947 (1st Cir. Nov. 20, 2012): The claims against the Nigro defendants are narrowly focused. The complaint posits that the special master's delinquent performance of his duties prolonged the will contest and, thus, caused the value of the estate to plummet. The plaintiff frames this plaint as both ...
Nystedt v. Nigro, 2012 U.S. App. LEXIS 23947 (1st Cir. Nov. 20, 2012): The claims against the Nigro defendants are narrowly focused. The complaint posits that the special master’s delinquent performance of his duties prolonged the will contest and, thus,…
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Does Rule 60(b)(1) Permit Relief from Judgment Because of Error of Law by Court? Circuit Split — Limited Scope of 60(b)(6)

United States Bank, N.A. v. Boardman, 2012 U.S. Dist. LEXIS 167388 (N.D. Cal. Nov. 26, 2012): Rule 60(b) provides relief from judgment where one or more of the following is shown: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered before the ...
United States Bank, N.A. v. Boardman, 2012 U.S. Dist. LEXIS 167388 (N.D. Cal. Nov. 26, 2012): Rule 60(b) provides relief from judgment where one or more of the following is shown: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly…
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RICO Standing Established If Plaintiff Is Injured by One Predicate Act — Need Not Be Injured by All Alleged to Form the Pattern

Just Film, Inc. v. Merchant Servs., Inc., 2012 U.S. Dist. LEXIS 173455 (N.D. Cal. Dec. 6, 2012): Plaintiffs allege that Defendants defrauded them and the putative class members in a scheme involving credit and debit card processing services and equipment.... Plaintiffs divide the Defendants into two categories: Merchant Services Defenda ...
Just Film, Inc. v. Merchant Servs., Inc., 2012 U.S. Dist. LEXIS 173455 (N.D. Cal. Dec. 6, 2012): Plaintiffs allege that Defendants defrauded them and the putative class members in a scheme involving credit and debit card processing services and equipment….…
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Contempt Citation Against Feds for Post-BP Oil Drilling Moratorium Reversed — Stricter “Abuse of Discretion” Review for Contempt — Meaning of “Clear and Convincing” — Argument Waived by Inadequate Briefing

Hornbeck Offshore Servs., LLC v. Salazar, 2012 U.S. App. LEXIS 24355 (5th Cir. Nov. 27, 2012) (Note: 2 to 1 decision): This case arises from the 2010 Deepwater Horizon accident in the Gulf of Mexico. An explosion killed 11 workers, caused the drilling platform to sink, and resulted in a major uncontrolled release of oil. At Presidential ...
Hornbeck Offshore Servs., LLC v. Salazar, 2012 U.S. App. LEXIS 24355 (5th Cir. Nov. 27, 2012) (Note: 2 to 1 decision): This case arises from the 2010 Deepwater Horizon accident in the Gulf of Mexico. An explosion killed 11 workers,…
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Court May Allow Affirmative Defense to Be Raised Initially in Pretrial Order or at Summary Judgment — PSLRA’s RICO Bar Applies to Securities in Private Entities — Predicate Acts Sharing Same Purpose, Result, Victims = Single RICO Enterprise

Gilmore v. Gilmore, 2012 U.S. App. LEXIS 24403 (2d Cir. Nov. 28, 2012): Plaintiff David Gilmore ("David") appeals from the September 1, 2011 memorandum decision and order of the United States District Court for the Southern District of New York (Pauley, J.) granting summary judgment to Defendants Abby Gilmore, Arthur Freierman, and Sout ...
Gilmore v. Gilmore, 2012 U.S. App. LEXIS 24403 (2d Cir. Nov. 28, 2012): Plaintiff David Gilmore (“David”) appeals from the September 1, 2011 memorandum decision and order of the United States District Court for the Southern District of New York…
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§ 1927 Sanctions — Circuit Split as to Whether Bad Faith Is Required or Recklessness Suffices — Failure to Name Counsel as Appellant Not Fatal If Appealed Order Sanctions Counsel Only — One Appellate Panel Cannot Overrule Another

McKenzie v. Norfolk S. Rwy., 2012 U.S. App. LEXIS 24171 (4th Cir. Nov. 20, 2012): Appellants next challenge the district court's entry of attorneys' fees against Schmidt under 28 U.S.C. § 1927. Prior to addressing the merits of the § 1927 sanctions, we must determine whether we have jurisdiction. *** Federal Rule of Appellate Proce ...
McKenzie v. Norfolk S. Rwy., 2012 U.S. App. LEXIS 24171 (4th Cir. Nov. 20, 2012): Appellants next challenge the district court’s entry of attorneys’ fees against Schmidt under 28 U.S.C. § 1927. Prior to addressing the merits of the §…
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Rule 45(c)(1) Cannot Support a Sanction Where the Cost of Complying with the Subpoena Is Minimal and Subpoena Was Not Facially Defective or Issued in Bad Faith — Appealability of Discovery Order Relating to Out-of-Circuit Case That Is Still Pending

Mount Hope Church v. Bash Back!, 2012 U.S. App. LEXIS 24233 (9th Cir. Nov. 26, 2012): Mount Hope Church ("Mount Hope" or "the Church") appeals a sanction order granting attorneys' fees and costs to Appellees Riseup Networks ("Riseup") and Objector dkwatt@riseup.net ("dkwatt") under Federal Rule of Civil Procedure 45(c)(1). The order, wh ...
Mount Hope Church v. Bash Back!, 2012 U.S. App. LEXIS 24233 (9th Cir. Nov. 26, 2012): Mount Hope Church (“Mount Hope” or “the Church”) appeals a sanction order granting attorneys’ fees and costs to Appellees Riseup Networks (“Riseup”) and Objector…
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“Illogical” Interpretation of Protective Order Constitutes Reversible Abuse of Discretion — Meaning of “All” and “Any” Is Literal

Lambright v. Ryan, 698 F.3d 808 (9th Cir. 2012): Joe Leonard Lambright appeals the decision of the district court to modify the protective order issued in his federal habeas proceeding to permit Respondent to turn over materials produced during the federal proceeding to the agency that will prosecute his resentencing, the Pima County At ...
Lambright v. Ryan, 698 F.3d 808 (9th Cir. 2012): Joe Leonard Lambright appeals the decision of the district court to modify the protective order issued in his federal habeas proceeding to permit Respondent to turn over materials produced during the…
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Ponzi Schemes — Rising Tide vs. Net Loss Method of Allocating Recovered Assets — Reinvestment (in the Scheme) Wrinkle — Bankruptcy Methodology and Fraudulent Conveyance Issues

SEC v. Huber, 2012 U.S. App. LEXIS 24547 (7th Cir. Nov. 29, 2012): William Huber operated a Ponzi scheme in which 118 investors lost a total of $22.6 million. He had told his investors--mainly friends and acquaintances, who trusted him--that he administered three investment funds, using a computer trading model. He had started the funds ...
SEC v. Huber, 2012 U.S. App. LEXIS 24547 (7th Cir. Nov. 29, 2012): William Huber operated a Ponzi scheme in which 118 investors lost a total of $22.6 million. He had told his investors–mainly friends and acquaintances, who trusted him–that…
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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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