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 37(c)(1) Sanctions — Factors for Determining Whether Failure Was Substantially Justified or Harmless

ACE Am. Ins. Co. v. McDonald’s Corp., 2012 U.S. Dist. LEXIS 89726 (D. Md. June 28, 2012): Although Ace American's Rule 26 (a)(2) disclosures were untimely and in non-compliance, and arguably rendered McDonald's unable to "comply with its own Rule 26(a)(2) disclosure requirements," *** the Court denies McDonald's Motion to Strike Ace A ...
ACE Am. Ins. Co. v. McDonald’s Corp., 2012 U.S. Dist. LEXIS 89726 (D. Md. June 28, 2012): Although Ace American’s Rule 26 (a)(2) disclosures were untimely and in non-compliance, and arguably rendered McDonald’s unable to “comply with its own Rule…
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RICO — Criminally False Attestations of HR Personnel Disguising Hiring of Illegal Aliens Not Proximate Cause of Depressed Wages for Other Employees

Walters v. McMahen, 2012 U.S. App. LEXIS 13682 (4th Cir. July 5, 2012): In this case, a group of hourly-wage employees of Perdue Farms, Inc. (Perdue), a major poultry processing company, filed a civil conspiracy action under 18 U.S.C. § 1962(d) of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq ...
Walters v. McMahen, 2012 U.S. App. LEXIS 13682 (4th Cir. July 5, 2012): In this case, a group of hourly-wage employees of Perdue Farms, Inc. (Perdue), a major poultry processing company, filed a civil conspiracy action under 18 U.S.C. §…
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Imposing Inherent Power Sanctions without Order to Show Cause Violates Due Process — Footnote in Prior Opinion Insufficient — Decision to Sanction Made Unilaterally, Rendering Notice Nugatory — Sanctions for Violating Local Font Rules Reversed

Kornhauser v. Comm’r of Social Security, 2012 U.S. App. LEXIS 13504 (11th Cir. July 2, 2012): Valinda S. Kornhauser brought this lawsuit to challenge the decision of the Commissioner of Social Security denying her claim for disability benefits. The District Court referred the case to a Magistrate Judge for a report and recommendation ...
Kornhauser v. Comm’r of Social Security, 2012 U.S. App. LEXIS 13504 (11th Cir. July 2, 2012): Valinda S. Kornhauser brought this lawsuit to challenge the decision of the Commissioner of Social Security denying her claim for disability benefits. The District…
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While Rule 11 Does Not Impose a Continuing Duty to Update, Correct or Withdraw a Pleading, It Does Bar Continued Prosecution After a Claim Becomes Meritless (Here, Settlement Agreement Entered)

Fuerst v. Fuerst, 832 F. Supp. 2d 210 (E.D.N.Y. 2011): As an initial matter, the Defendant's contention that sanctions are warranted relies on the presumption that the Settlement effectuated a release of the Plaintiff's claims. A review of the Settlement supports this presumption. The Settlement explicitly provides that the parties agree ...
Fuerst v. Fuerst, 832 F. Supp. 2d 210 (E.D.N.Y. 2011): As an initial matter, the Defendant’s contention that sanctions are warranted relies on the presumption that the Settlement effectuated a release of the Plaintiff’s claims. A review of the Settlement…
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Circumstantial Authentication of Email Evidence

United States v. Little, 2012 U.S. Dist. LEXIS 90812 (N.D. Cal. June 18, 2012): C. Motion in Limine to Exclude Government Exhibit 109 Lastly, Little moves for an in limine order to exclude Government Exhibit 109, which consists of an email and an attached letter sent on July 1, 2003 by Little to Williams, with a copy to ...
United States v. Little, 2012 U.S. Dist. LEXIS 90812 (N.D. Cal. June 18, 2012): C. Motion in Limine to Exclude Government Exhibit 109 Lastly, Little moves for an in limine order to exclude Government Exhibit 109, which consists of an…
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Standards for Sanctions under Federal Rule of Bankruptcy Procedure 8020 = Those for FRAP 38 — While Court May Consider Offender’s Ability to Pay, It Is Not Required to Do So (Unlike under Rule 11)

WMS Motor Sales v. Reese (In re Reese), 2012 U.S. App. LEXIS 12134 (6th Cir. June 13, 2012): Attorney-Appellant Irene K. M*** appeals the Bankruptcy Appellate Panel's ("BAP") imposition of sanctions for filing a frivolous appeal in bankruptcy proceedings involving WMS Motor Sales ("WMS"). After concluding that M***'s conduct was egregi ...
WMS Motor Sales v. Reese (In re Reese), 2012 U.S. App. LEXIS 12134 (6th Cir. June 13, 2012): Attorney-Appellant Irene K. M*** appeals the Bankruptcy Appellate Panel’s (“BAP”) imposition of sanctions for filing a frivolous appeal in bankruptcy proceedings involving…
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Spoliation Analysis Is Distinct from Analysis Regarding Spoliation Sanctions — Adverse Inference Requires Actual Suppression or Withholding of Evidence

Omogbehin v. Cino, 2012 U.S. App. LEXIS 12545 (3d Cir. June 20, 2012): Generally, spoliation refers to situations where a party has altered, destroyed, or failed to produce evidence "relevant to an issue in a case." Bull v. United Parcel Serv., Inc., 665 F.3d 68, 73 (3d Cir. 2012) (quoting Brewer v. Quaker State Oil Refining Corp., 72 F ...
Omogbehin v. Cino, 2012 U.S. App. LEXIS 12545 (3d Cir. June 20, 2012): Generally, spoliation refers to situations where a party has altered, destroyed, or failed to produce evidence “relevant to an issue in a case.” Bull v. United Parcel…
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RICO — “We Find It Extremely Difficult to Fathom Any Scenario in Which An Attorney Might Expose Himself to RICO Liability by Offering Conventional Advice to a Client or Performing Ordinary Legal Tasks” (Good Quote)

RSM Production Corp. v. Freshfields Bruckhaus Deringer US LLP, 2012 U.S. App. LEXIS 12784 (D.C. Cir. June 22, 2012): RSM Production Corporation ("RSM") appeals the dismissal of its complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), against the law firm Freshfields Bruckhaus Deringer U.S. LLP, and two of its partners, Jan P ...
RSM Production Corp. v. Freshfields Bruckhaus Deringer US LLP, 2012 U.S. App. LEXIS 12784 (D.C. Cir. June 22, 2012): RSM Production Corporation (“RSM”) appeals the dismissal of its complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), against the law…
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Equitable Estoppel May Prevent Party from Reversing Position in Second Litigation with Same Adversary Where Judicial Estoppel Does Not Apply

Segal v. Strausser Enters., Inc., 2012 U.S. App. LEXIS 13228 (3d Cir. June 28, 2012): Appellees (collectively, "Segal") entered a real estate deal with Strausser Enterprises, Inc. ("SEI") that contained a mandatory arbitration clause. After the parties entered the contract, SEI believed that one of Segal's impending commercial transacti ...
Segal v. Strausser Enters., Inc., 2012 U.S. App. LEXIS 13228 (3d Cir. June 28, 2012): Appellees (collectively, “Segal”) entered a real estate deal with Strausser Enterprises, Inc. (“SEI”) that contained a mandatory arbitration clause. After the parties entered the contract,…
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§ 1927 Sanctions Imposable for Flippant, Condescending, Unproofread Briefs That Mischaracterize Evidence and Contain Baseless Arguments and Allegations

Greer v. Richardson Independent School Dist., 2012 U.S. App. LEXIS 11990 (5th Cir. June 13, 2012): On November 24, 2010, RISD moved for attorneys' fees pursuant to Federal Rule of Civil Procedure 54 and 28 U.S.C. § 1927, and it filed an Amended Motion for Attorney Fees on February 17, 2011. RISD sought the recovery of fees incurred as ...
Greer v. Richardson Independent School Dist., 2012 U.S. App. LEXIS 11990 (5th Cir. June 13, 2012): On November 24, 2010, RISD moved for attorneys’ fees pursuant to Federal Rule of Civil Procedure 54 and 28 U.S.C. § 1927, and it…
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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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