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

Lack of Civility and Professionalism = Good Grounds to Deny Attorneys’ Fees — Aspect of Inherent Power of the Court

Wescott Agri-Products, Inc. v. Sterling State Bank, Inc., 2012 U.S. App. LEXIS 13214 (8th Cir. June 28, 2012): The district court granted summary1 judgment to Wescott Agri-Products, Inc. on Wescott's claim that Sterling State Bank, Inc. (bank) violated the Perishable Agricultural Commodities Act, 1930 (PACA), 7 U.S.C. § 499a et seq., b ...
Wescott Agri-Products, Inc. v. Sterling State Bank, Inc., 2012 U.S. App. LEXIS 13214 (8th Cir. June 28, 2012): The district court granted summary1 judgment to Wescott Agri-Products, Inc. on Wescott’s claim that Sterling State Bank, Inc. (bank) violated the Perishable…
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Foreign Arbitration Subject to Limited Appellate Review (FAA-Like) Is a “Proceeding” within 28 U.S.C. § 1782 — As This Is the First Post-Intel Circuit-Level Decision, Is There More Than a Nominal Circuit Split?

Application of Consorcio Ecuatoriano de Telecomunicaciones S.A., Pursuant to 28 USC 1782, 2012 U.S. App. LEXIS 12949 (11th Cir. June 25, 2012) (NOTE: THIS OPINION WAS WITHDRAWN SUA SPONTE ON 1/10/14 -- see Application of Consorcio Ecuatoriano de Telecoms. S.A., 2014 U.S. App. LEXIS 531 (11th Cir. Jan. 10, 2014):
Application of Consorcio Ecuatoriano de Telecomunicaciones S.A., Pursuant to 28 USC 1782, 2012 U.S. App. LEXIS 12949 (11th Cir. June 25, 2012) (NOTE: THIS OPINION WAS WITHDRAWN SUA SPONTE ON 1/10/14 — see Application of Consorcio Ecuatoriano de Telecoms.…
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Allegedly False Representations Directed to Person in State Giving Rise to Claim Satisfy Minimum Contacts — Circuit Split as to Whether All Jurisdictionally Relevant Acts Must Be Aimed at State or Only Tortious Acts

Felland v. Clifton, 2012 U.S. App. LEXIS 11380 (7th Cir. June 6, 2012): While vacationing in Arizona, Robert and Linda Felland entered into a contract to purchase a condominium unit in a planned beachfront development in Puerto Peñasco, Mexico. The project was managed by a real-estate development firm owned by Patrick Clifton, an Arizo ...
Felland v. Clifton, 2012 U.S. App. LEXIS 11380 (7th Cir. June 6, 2012): While vacationing in Arizona, Robert and Linda Felland entered into a contract to purchase a condominium unit in a planned beachfront development in Puerto Peñasco, Mexico. The…
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Rule 11 Sanctions for Filing Claims Barred by Statute of Limitations (An Affirmative Defense) and § 1927 Sanctions for Filing Duplicative Lawsuits

Erwin v. Russ, 2012 U.S. App. LEXIS 11101 (5th Cir. June 1, 2012): Erwin, along with twenty-three other plaintiffs (collectively the "Plaintiffs") sued Bryan F. Russ, Jr. and fifty-three other defendants (collectively the "Defendants") for their roles in an alleged grand conspiracy involving a Texas state judge and Russ' law firm ("The ...
Erwin v. Russ, 2012 U.S. App. LEXIS 11101 (5th Cir. June 1, 2012): Erwin, along with twenty-three other plaintiffs (collectively the “Plaintiffs”) sued Bryan F. Russ, Jr. and fifty-three other defendants (collectively the “Defendants”) for their roles in an alleged…
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Is Forum Selection Clause Substantive or Procedural for Choice of Law Purposes in Diversity Action? Circuit Split

Mid-American Benefits, Inc. v. Neb. Ass’n of Resource Dists., 2012 U.S. Dist. LEXIS 77609 (D. Neb. June 5, 2012): Because this is a diversity jurisdiction action, the Court must determine whether to treat the forum selection clause issue as substantive or procedural, which will, in turn, determine the choice of law. In Rainforest Caf ...
Mid-American Benefits, Inc. v. Neb. Ass’n of Resource Dists., 2012 U.S. Dist. LEXIS 77609 (D. Neb. June 5, 2012): Because this is a diversity jurisdiction action, the Court must determine whether to treat the forum selection clause issue as substantive…
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Sanctions — What Constitutes Bad Faith for § 1927 and Inherent Power Purposes — Even Meritorious Arguments May Be Advanced in Bad Faith for Harassment Purposes — Award of Costs as Sanction

Save the Peaks Coalition v. U.S. Forest Serv., 2012 U.S. App. LEXIS 12666 (9th Cir. June 21, 2012): Intervenor-Defendant-Appellee Arizona Snowbowl Resort Limited Partnership (Snowbowl) has moved for attorney's fees and costs. The court is well aware that Plaintiffs-Appellants and Howard M. Shanker (Shanker), their counsel, grossly ab ...
Save the Peaks Coalition v. U.S. Forest Serv., 2012 U.S. App. LEXIS 12666 (9th Cir. June 21, 2012): Intervenor-Defendant-Appellee Arizona Snowbowl Resort Limited Partnership (Snowbowl) has moved for attorney’s fees and costs. The court is well aware that Plaintiffs-Appellants and…
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RICO — Damage to Reputation from Defamation Is Personal, Not Injury to Business or Property, Even If It Results in a Loss of Income

Santana v. Cook Cnty. Board of Review, , 679 F.3d 614 (7th Cir. 2012): Finally, Santana alleges that the defendants' alleged racketeering activity--including bribery, money laundering, honest-services fraud, and extortion--injured him "in business or property" and therefore violated RICO, 18 U.S.C. § 1964(c). But Santana cannot state a ...
Santana v. Cook Cnty. Board of Review, , 679 F.3d 614 (7th Cir. 2012): Finally, Santana alleges that the defendants’ alleged racketeering activity–including bribery, money laundering, honest-services fraud, and extortion–injured him “in business or property” and therefore violated RICO, 18…
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Inherent Power Sanctions — Voluntary Dismissal in Face of Summary Judgment Motion = Evidence of Awareness of Frivolousness/Subjective Bad Faith — Client’s Verification of Complaint No Defense to Attorney’s Filing Baseless Claim

Dubuc v. Green Oak Township, 2012 U.S. App. LEXIS 11334 (6th Cir. June 4, 2012): Dennis Dubuc has a long history of instigating lawsuits against his township. As chronicled in an opinion from the Michigan Supreme Court, Dubuc filed "at least ten lawsuits" between 1985 and 2000, when the opinion was written. Dubuc v. Green Oak Twp., 609 ...
Dubuc v. Green Oak Township, 2012 U.S. App. LEXIS 11334 (6th Cir. June 4, 2012): Dennis Dubuc has a long history of instigating lawsuits against his township. As chronicled in an opinion from the Michigan Supreme Court, Dubuc filed “at…
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Non-Binding Arbitration ≠ Mediation — Proceedings Not Protected from Discovery Even If Federal Mediation Privilege Exists (Undecided)

Kimberly-Clark Worldwide, Inc. v. First Quality Baby Prods., LLC, 447 Fed. Appx. 217 (Fed. Cir. 2011): Kimberly-Clark Worldwide, Inc. ("K-C") appeals from the district court's orders compelling discovery relating to three alternative dispute resolution agreements and the proceedings that occurred pursuant to those agreements. ***
Kimberly-Clark Worldwide, Inc. v. First Quality Baby Prods., LLC, 447 Fed. Appx. 217 (Fed. Cir. 2011): Kimberly-Clark Worldwide, Inc. (“K-C”) appeals from the district court’s orders compelling discovery relating to three alternative dispute resolution agreements and the proceedings that occurred…
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Personal Knowledge Regarding Business Records May Be Inferred from Witness’s Position with Company, and Custodian May Testify as Corporate Representative — No Such Inference of Personal Knowledge Where Counsel Sponsors Internet Exhibit

Lusk v . Wells Fargo N.A., 2012 U.S. Dist. LEXIS 70369 (E.D. Tex. May 21, 2012): This is a dispute over an attempted foreclosure on certain real property located at 6738 County Road 593, Nevada, Collin County, Texas. *** First, Plaintiffs object to portions of the affidavit of Jennifer Robinson*** Federal Rule of Civil Pro ...
Lusk v . Wells Fargo N.A., 2012 U.S. Dist. LEXIS 70369 (E.D. Tex. May 21, 2012): This is a dispute over an attempted foreclosure on certain real property located at 6738 County Road 593, Nevada, Collin County, Texas. *** First,…
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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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