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

§1927 Sanctions: Clear & Convincing Evid. Only If Cost of Whole Case Shifted — Persistent Prosecution of Baseless Claim Enough — Can’t Rely on Client If “Glaring Red Flags” (Many Good Quotes)

Morrison v. Walker, 2019 WL 4782749 (5th Cir. Oct. 1, 2019): *1 Litigation abuse is nothing new. Since 1813, when James Madison was president, a one-sentence federal statute has authorized monetary sanctions against attorneys who misuse the litigation process. ...
Morrison v. Walker, 2019 WL 4782749 (5th Cir. Oct. 1, 2019): *1 Litigation abuse is nothing new. Since 1813, when James Madison was president, a one-sentence federal statute has authorized monetary sanctions against attorneys who misuse the litigation process.1…
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Advocate-Witness Rule (3.7) — Lawyer in Bad Faith Insurance Action Who Represented Plaintiff in Underlying Suit = Necessary Witness & Disqualified — Not All Participation in Bad Faith Suit Barred

 Timlick v. Liberty Mut. Ins. Co., 2019 U.S. Dist. LEXIS 174208 (D. Mont. Oct. 7, 2019): Defendants Liberty Mutual Insurance Company and Safeco Insurance Company of Illinois have filed a motion to disqualify ...
Timlick v. Liberty Mut. Ins. Co., 2019 U.S. Dist. LEXIS 174208 (D. Mont. Oct. 7, 2019): Defendants Liberty Mutual Insurance Company and Safeco Insurance Company of Illinois have filed a motion to disqualify Plaintiff Jay Timlick's counsel, Gary Crowe, pursuant…
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Wayback Machine — Judicial Notice OK— Even If Not, Court Could Consider Internet Archive Corporate Witness’s Affidavits Authenticating the Technology from Other Cases Pursuant to Rule 104(a)

Pohl v. Mh Sub I, 2019 U.S. Dist. LEXIS 182695 (N.D. Fla. Oct. 23, 2019): ORDER ON MOTIONS IN LIMINE AND SANCTIONS This Court has considered, without hearing, parties' vario ...
Pohl v. Mh Sub I, 2019 U.S. Dist. LEXIS 182695 (N.D. Fla. Oct. 23, 2019): ORDER ON MOTIONS IN LIMINE AND SANCTIONS This Court has considered, without hearing, parties' various motions. For the reasons stated below, Plaintiff's Motion in Limine,…
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Arbitration: Evident Partiality—Arbitrator Must Disclose Ownership Interest in Administering Entity & Whether Either Party Has Had Prior Non-Trivial Business Dealings — When Party Has Constructive Knowledge of Evident Partiality

Monster Energy Co. v. City Bevs., LLC, 2019 U.S. App. LEXIS 31388 (9th Cir. Oct. 22, 2019): City Beverages, LLC, doing business as Olympic Eagle Distributing [*4]  (Olympic Eagle), and Monster Energy Co. (M ...
Monster Energy Co. v. City Bevs., LLC, 2019 U.S. App. LEXIS 31388 (9th Cir. Oct. 22, 2019): City Beverages, LLC, doing business as Olympic Eagle Distributing [*4]  (Olympic Eagle), and Monster Energy Co. (Monster) signed an agreement providing exclusive distribution…
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The Existence of a Default Judgment against a Foreign State Can Establish Venue in the District in Which It Was Entered If the Foreign State Attempts to Open Up the Judgment (28 U.S.C. § 1391(f)(1))

Gater Assets Ltd. v. AO Gazsnabtranzit, 2019 U.S. Dist. LEXIS 167195 (S.D.N.Y. Sept. 27, 2019): Before the Court are a number of motions relating to Plaintiff-Petitioner Gater Assets Limited's (&q ...
Gater Assets Ltd. v. AO Gazsnabtranzit, 2019 U.S. Dist. LEXIS 167195 (S.D.N.Y. Sept. 27, 2019): Before the Court are a number of motions relating to Plaintiff-Petitioner Gater Assets Limited's ("Plaintiff") attempt to enforce an arbitration award against Defendants AO Moldovagaz …
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Securities: Judicial Notice (JN) of Wayback Machine OK — Defs. Can’t Use JN to Insert Own Version of Events to Defeat Well-Pled Claims — JN of Transcripts for Acts, Not Substance, & of 10b5-1 Plan Only for Fact Sales Made Pursuant Thereto

In re Facebook, Inc. Secs. Litig., 2019 U.S. Dist. LEXIS 166027 (N.D. Cal. Sept. 25, 2019): This lawsuit stems from the revelation that Cambridge Analytica acquired the private Facebook data of millions of us ...
In re Facebook, Inc. Secs. Litig., 2019 U.S. Dist. LEXIS 166027 (N.D. Cal. Sept. 25, 2019): This lawsuit stems from the revelation that Cambridge Analytica acquired the private Facebook data of millions of users and that, upon learning of this…
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Experts: Opinion Expressed As “Belief” Satisfies Daubert If It Reflects Conclusions Based on Actual Knowledge, Not “Mere Belief Or Speculation” — Rule 37(c)(1) Sanctions: Exclusion Not Automatic

 Turner v. Phillips 66 Co., 2019 U.S. App. LEXIS 30880 (10th Cir. Oct. 16, 2019) (unpublished): Richard Turner appeals the grant of summary judgment in favor of Phillips 66 Company on his claims under the
Turner v. Phillips 66 Co., 2019 U.S. App. LEXIS 30880 (10th Cir. Oct. 16, 2019) (unpublished): Richard Turner appeals the grant of summary judgment in favor of Phillips 66 Company on his claims under the Americans with Disabilities Act (ADA)…
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Rule 11 Sanctions: “In Rare Cases, District Courts May Dismiss … for Willful, Malicious & Flagrant Violations” — “Malicious Abuse of Process Justifies Dismiss[al]” (Good Quotes)

Tyagi v. Smith, 2019 WL 5304639 (7th Cir. Oct. 21, 2019): *1 Sanjay Tyagi, Alka Jagatia, and their child, A.T., appeal the dismissal of their case as a sanction under
Tyagi v. Smith, 2019 WL 5304639 (7th Cir. Oct. 21, 2019): *1 Sanjay Tyagi, Alka Jagatia, and their child, A.T., appeal the dismissal of their case as a sanction under Federal Rules of Civil Procedure 11 and 37. The…
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Experts — Factual Basis for Opinion Generally Goes to Credibility, Not Admissibility — Cross, Contrary Evidence, Burden of Proof Are Means to Attack Shaky But Admissible Evidence (Good Quotes)

 Klingenberg v. Vulcan Ladder USA, LLC, 2019 U.S. App. LEXIS 26216 (8th Cir. Aug. 29, 2019): Jeffrey Klingenberg and his wife sued Vulcan Ladder USA, LLC, and GP International Company, for a design d ...
Klingenberg v. Vulcan Ladder USA, LLC, 2019 U.S. App. LEXIS 26216 (8th Cir. Aug. 29, 2019): Jeffrey Klingenberg and his wife sued Vulcan Ladder USA, LLC, and GP International Company, for a design defect and breach of express warranty. After …
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Spoliation — Amending Complaint to Add Substantive Spoliation Tort Claim + Requesting Sanctions in Summary Judgment Brief Does Not Preserve Review of Failure to Sanction: Need Motion

 Sroka v. Wal-Mart Stores E., 2019 U.S. App. LEXIS 26011 (6th Cir. Aug. 29, 2019) (unpublished): Anyone who hears Michelle Sroka's story cannot but have the utmost sympathy for her: Heading to the local ...
Sroka v. Wal-Mart Stores E., 2019 U.S. App. LEXIS 26011 (6th Cir. Aug. 29, 2019) (unpublished): Anyone who hears Michelle Sroka's story cannot but have the utmost sympathy for her: Heading to the local Wal-Mart to buy chip dip before…
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Recent Posts

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

Spoliation: Fed. R. Civ. P. 37(e) Imposes a Higher Standard — Intent — Than Fourth Circuit Law Previously Applied to Spoliation of Electronically-Stored Information (And Still Does As to Non-ESI) — Willfulness vs. Intent

Inherent Power and § 1927 Sanctions: Removal of counsel from case, referral for disciplinary action, and award of fees and costs for assaulting opposing counsel at deposition — Failure to request hearing waive any right to a hearing — Notice and opportunity to be heard required before sua sponte sanctions imposed, whether under Rule 11, the inherent power of the court or § 1927 — Notice may come from court or opposing counsel — Order imposing sanctions cannot provide notice of sanctions — Nature of bad faith requirement for inherent power sanctions: bad faith to obstruct the judicial process or bring about violation of a court order — Sanctions proceeding need not defer (Younger abstention) to disciplinary proceeding involving the same conduct — Sanctions proceeding doesn’t threaten to interfere with disciplinary proceeding — Why District Court is accorded significant deference in matters concerning attorney’s fees

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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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