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

Spoliation — Destruction of Disposable Breath Test Device That Does Not Retain Results Is Not Sanctionable — Manufacturer’s Statement That It “Is Not Intended To Legally Determine Blood Alcohol” Goes to Weight — Good Quote on Daubert

Rutledge v. NCL (Bahamas), Ltd., 464 Fed. Appx. 826 (11th Cir. Mar. 20, 2012): Ada Mae Rutledge appeals several of the district court's evidentiary rulings in her negligence-based jury trial against Norwegian Cruise Line ("NCL"). Rutledge was aboard NCL's Norwegian Sun cruise ship on March 3, 2007, when she was injured in a fall as she ...
Rutledge v. NCL (Bahamas), Ltd., 464 Fed. Appx. 826 (11th Cir. Mar. 20, 2012): Ada Mae Rutledge appeals several of the district court’s evidentiary rulings in her negligence-based jury trial against Norwegian Cruise Line (“NCL”). Rutledge was aboard NCL’s Norwegian…
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Internet Evidence Not Offered for the Truth Sufficiently Authenticated on Summary Judgment by Attorney’s Affidavit

Lebewohl v. Heart Attack Grill, LLC, 2012 U.S. Dist. LEXIS 93945 (S.D.N.Y. July 6, 2012): The parties to this declaratory judgment action are restaurants that use provocative names to market their extravagantly caloric food. Defendants are a chain of theme restaurants called the Heart Attack Grill and its owners (together, "HAG"). HAG's ...
Lebewohl v. Heart Attack Grill, LLC, 2012 U.S. Dist. LEXIS 93945 (S.D.N.Y. July 6, 2012): The parties to this declaratory judgment action are restaurants that use provocative names to market their extravagantly caloric food. Defendants are a chain of theme…
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Discovery under 28 U.S.C. § 1782 — Ex Parte / OSC Approach Satisfies Due Process — Deferential Appellate Review: “Not Outside the Range of Permissible Decisions”

Gushlak v. Gushlak, 2012 U.S. App. LEXIS 13535 (2d Cir. July 3, 2012): Respondent-appellees Myron Gushlak ("Gushlak") and Yelena Furman ("Furman") appeal from orders of the district court granting Debbie Gushlak's petition for an order of judicial assistance, under 28 U.S.C. § 1782, to obtain discovery in connection with a foreign lega ...
Gushlak v. Gushlak, 2012 U.S. App. LEXIS 13535 (2d Cir. July 3, 2012): Respondent-appellees Myron Gushlak (“Gushlak”) and Yelena Furman (“Furman”) appeal from orders of the district court granting Debbie Gushlak’s petition for an order of judicial assistance, under 28…
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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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Recent Posts

RICO Causation: Parents of Children with Disabilities Deprived In-Person Education and Services during the Pandemic Were Not Causally Injured by Teachers’ False Assurances to Federal Authorities That IDEA-Complaint Policies Were in Place, Which Caused Funds to Issue But Not to the Benefit of the Disabled Children — Damages Too Indirect — Proper Plaintiff Is U.S. Government — Private Injunctive Relief Under RICO Uncertain in Third Circuit

Sanctions: Rule 37(b)(2) Dismissal — Sixth Circuit Factors

Inherent Power Sanctions — Extrajudicial Misconduct: Sanctions Power Extends to Conduct Intended to Sabotage Court’s Ability to Adjudicate the Case Before It, Here, By Commencing State Court Actions Seeking to Enjoin the Federal Plaintiffs from Proceeding with Their Federal Litigation — Sanctions Fee Awards: The Factors Used For Calculating A Fee Award To A Prevailing Party Do Not Govern — Under Goodyear, the Relevant Inquiry Is Whether There Is A Sufficient Causal Link Between The Sanctioned Misconduct And The Fees Awarded

RICO: Members of Association-in-Fact Enterprise Must Act with a Common Purpose—Mere Allegation That Various Defendants Agreed at Different Times to Engage in Various Fraudulent Schemes Does Not Plausibly Support the Essential Inference, That They Acted with s Sufficiently Common Purpose

RICO Causation: (1) State’s Misrepresentation to Federal Government That It Was Providing Plaintiffs with Mandated Special Education Did Not Cause Plaintiffs’ Injury Because The Failure to Provide The Education Was Not Caused by the Fraud on the Federal Government — (2) The Three Factors for Assessing RICO Causation — (3) Limits of the Second Circuit’s Decision in Alix v. McKinsey That Causation Can Be Established Where A Fraud On The Judiciary “Or Other Governmental Entity” Resulted In A Resource Going To Someone Less Deserving

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

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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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