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 11 Motion That Would Require Court to Decide Substance of Motion Subject to Bankruptcy Stay Is Properly Deferred until Stay Lifted

Wolgast v. Richards, 2012 U.S. Dist. LEXIS 5704 (E.D. Mich. Jan. 18, 2012): Plaintiff's argument presents an issue of first impression: May a debtor, after filing a Chapter 13 bankruptcy petition, move for Rule 11 sanctions in a pending case when the subject matter of the motion has been automatically stayed? Under the particular ci ...
Wolgast v. Richards, 2012 U.S. Dist. LEXIS 5704 (E.D. Mich. Jan. 18, 2012): Plaintiff’s argument presents an issue of first impression: May a debtor, after filing a Chapter 13 bankruptcy petition, move for Rule 11 sanctions in a pending case…
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Uncertain Application of Rooker-Feldman to State Court Judgments Still on Appeal in State Court System — Circuit Split

TC Healthcare I, LLC v. Dupuis (In re Haven Eldercare, LLC), 2012 U.S. Dist. LEXIS 3190 (D. Conn. Jan. 10, 2012): Ms. Dupuis was employed by a nursing home operator, Haven Eldercare LLC ("Haven"), which filed for Chapter 11 bankruptcy protection in 2007. Before the bankruptcy, Ms. Dupuis and Haven entered into a tuition reimbursement con ...
TC Healthcare I, LLC v. Dupuis (In re Haven Eldercare, LLC), 2012 U.S. Dist. LEXIS 3190 (D. Conn. Jan. 10, 2012): Ms. Dupuis was employed by a nursing home operator, Haven Eldercare LLC (“Haven”), which filed for Chapter 11 bankruptcy…
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Imprisonment for Civil Contempt for Failure to Pay Rule 11 Sanction — 4-Part Fourth Circuit Test for Dismissal Sanction — No Rule 11 Sanction for Isolated, Inadvertent Mistake

Young Again Prods., Inc. v. Ortega, 2011 U.S. App. LEXIS 25713 (4th Cir. Dec. 23, 2011): This appeal arises from the district court's entry of default judgment in the amount of $3,832,832 against John Acord and his mother, Marcella Ortega (collectively, the "Appellants"), pursuant to Federal Rules of Civil Procedure 16(f) and 37(b)(2)(A ...
Young Again Prods., Inc. v. Ortega, 2011 U.S. App. LEXIS 25713 (4th Cir. Dec. 23, 2011): This appeal arises from the district court’s entry of default judgment in the amount of $3,832,832 against John Acord and his mother, Marcella Ortega…
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Can’t Dismiss under 12(b)(6) on Grounds Motion Unopposed, Where Non-Opposition Due to Technical Error — Failure to Comply with Local Rules ≠ Dismissal with Prejudice Absent Contumacious or Repeated Failures — No Rule 11 Sanctions for Inaction

Webb v. Morella, 2012 U.S. App. LEXIS 433 (5th Cir. Jan. 9, 2012): The appellants, Belva and Faith Webb, filed this cause against Joseph Morella, their lawyer and a part-time city magistrate, asserting in their complaint a disorganized smattering of federal and state law tort claims against Morella. Morella moved for dismissal of the c ...
Webb v. Morella, 2012 U.S. App. LEXIS 433 (5th Cir. Jan. 9, 2012): The appellants, Belva and Faith Webb, filed this cause against Joseph Morella, their lawyer and a part-time city magistrate, asserting in their complaint a disorganized smattering of…
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On-the-Record Statement by Party Declaring in Court That He/She Will Not Bring Civil Action Does Not Judicially Estop Party from Doing So Later

Furey v. Wolfe, 2011 U.S. Dist. LEXIS 148360 (E.D. Pa. Dec. 27, 2011): This suit arises from the plaintiff's arrest on April 5, 2008. The plaintiff alleges that Police Officer Travis Wolfe, Police Commissioner Charles Ramsey, and the City of Philadelphia Police Department engaged in violations of his constitution rights, assault, and ba ...
Furey v. Wolfe, 2011 U.S. Dist. LEXIS 148360 (E.D. Pa. Dec. 27, 2011): This suit arises from the plaintiff’s arrest on April 5, 2008. The plaintiff alleges that Police Officer Travis Wolfe, Police Commissioner Charles Ramsey, and the City of…
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Diversity Jurisdiction — When Unsuccessful Petitioner Seeks to Vacate Arbitral Award of Less Than $75,000 without Seeking Further Relief in Arbitration or in Court, Amount in Controversy Unsatisfied

Coffey v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 2012 U.S. Dist. LEXIS 3998 (C.D. Cal. Jan. 11, 2012): In this action, Plaintiffs seek to vacate an arbitration award entered on October 3, 2011. Plaintiffs sought an award of $222,142.00 from Defendant on the grounds that Defendant's broker had recommended unsuitable securities ...
Coffey v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 2012 U.S. Dist. LEXIS 3998 (C.D. Cal. Jan. 11, 2012): In this action, Plaintiffs seek to vacate an arbitration award entered on October 3, 2011. Plaintiffs sought an award of $222,142.00…
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When Is Law “Clearly Established?”

Harvey v. Montgomery County, 2012 U.S. Dist. LEXIS 55 (S.D. Tex. Jan. 3, 2012): Importantly, "[w]here no controlling authority specifically prohibits a defendant's conduct, and when the federal circuit courts are split on the issue, the law cannot be said to be clearly established." Morgan v. Swanson, 659 F.3d 359, 372 (5th Cir. ...
Harvey v. Montgomery County, 2012 U.S. Dist. LEXIS 55 (S.D. Tex. Jan. 3, 2012): Importantly, “[w]here no controlling authority specifically prohibits a defendant’s conduct, and when the federal circuit courts are split on the issue, the law cannot be said…
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When Supreme Court Resolves Circuit Split, Its Holding May Be Retroactively Applied Because It Was Reasonably Foreseeable

United States v. Jones, 2011 U.S. Dist. LEXIS 151102 (W.D. Tex Aug. 15, 2011): The Supreme Court has held that where circuits are split on an issue of law and the Supreme Court subsequently resolves the split, the newly articulated law may be applied retroactively because the potential for review is reasonably foreseeable.
United States v. Jones, 2011 U.S. Dist. LEXIS 151102 (W.D. Tex Aug. 15, 2011): The Supreme Court has held that where circuits are split on an issue of law and the Supreme Court subsequently resolves the split, the newly articulated…
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Withdrawal of Assertion of Fifth Amendment in Civil Case Permissible Absent Prejudice to Opponents — Stage of Proceedings and Motivation to Game the System Key Considerations

Davis-Lynch, Inc. v. Moreno, 2012 U.S. App. LEXIS 549 (5th Cir. Jan. 10, 2012): This court has not ruled on whether and under what circumstances a party may withdraw its invocation of the Fifth Amendment privilege against self incrimination in a civil case. Multiple Circuits, however, have addressed this issue, noting that it is depende ...
Davis-Lynch, Inc. v. Moreno, 2012 U.S. App. LEXIS 549 (5th Cir. Jan. 10, 2012): This court has not ruled on whether and under what circumstances a party may withdraw its invocation of the Fifth Amendment privilege against self incrimination in…
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Rooker Feldman Does Not Apply until State Court Judgment Has Become Final — Inapplicable to Interlocutory Orders — Circuit Split

Persley v. Lee, 794 F. Supp. 2d 728 (E.D. Ky. 2011): While Defendant correctly argues that a lower federal court may not review final state court judgments, the matter before this Court has not become final. Thus, the Rooker-Feldman doctrine does not apply. The Rooker-Feldman doctrine precludes this Court "from exercising appel ...
Persley v. Lee, 794 F. Supp. 2d 728 (E.D. Ky. 2011): While Defendant correctly argues that a lower federal court may not review final state court judgments, the matter before this Court has not become final. Thus, the Rooker-Feldman doctrine…
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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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