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

RICO — Federal Question Jurisdiction “Exists Only Where There Is a ‘Colorable’ Claim Arising under Federal Law” — Not If It Is “Insubstantial, Implausible, Foreclosed by [Precedent or] Completely Devoid of Merit” (Good Quotes)

Jones v. USAA Cas. Ins. Co., 2019 U.S. App. LEXIS 24567 (10th Cir. August 19, 2019) (unpublished): Alberta Rose Josephine Jones, proceeding pro se, sued numerous defendants after a large tree fell and ...
Jones v. USAA Cas. Ins. Co., 2019 U.S. App. LEXIS 24567 (10th Cir. August 19, 2019) (unpublished): Alberta Rose Josephine Jones, proceeding pro se, sued numerous defendants after a large tree fell and damaged a rental property she co-owns in…
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Rule 37 Sanctions — Default Judgment Requires Willfulness & Bad Faith, Plus a Well-Pleaded Complaint Alleging a Sufficient Basis for the Judgment Entered — No Disqualification under R. 1.18 If Opposing Party’s Consultation Concerned Unrelated Matter

Thornton v. Hospitality Mgmt. Assocs., Inc., 2019 WL 4858252 (11th Cir. Oct. 2, 2019) (unpublished): *1 Douglas Gurney, proceeding pro se, appeals the district court’s award of expenses and entry of default judgment as
Thornton v. Hospitality Mgmt. Assocs., Inc., 2019 WL 4858252 (11th Cir. Oct. 2, 2019) (unpublished): *1 Douglas Gurney, proceeding pro se, appeals the district court’s award of expenses and entry of default judgment as Federal Rule of Civil Procedure 37(b)…
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Facebook/Social Media Authentication — West Virginia Adopts Liberal, Circumstantial Evidence Approach — Testimony from Conversant, Witness to Party Sending or Receiving, or Distinctive Characteristics Sufficient

 State v. Benny W., 2019 W. Va. LEXIS 487 (W. Va. Sup. Ct. of App. Oct. 18, 2019): This appeal was brought by Benny W. (hereinafter "Petitioner") from the April 4, 2018, order of the Circuit Court ...
State v. Benny W., 2019 W. Va. LEXIS 487 (W. Va. Sup. Ct. of App. Oct. 18, 2019): This appeal was brought by Benny W. (hereinafter "Petitioner") from the April 4, 2018, order of the Circuit Court of Ritchie County…
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Rule 37(c)(1) Sanctions — Failure to Exclude Unnecessary Evidence That Was Improperly Undisclosed Properly Not Sanctioned Due to Absence of Prejudice [= Evidence of Harmlessness]

Janet Walcott appeals the district court's grant of summary judgment to the government on her claim that the Internal Revenue Service (IRS) failed to send her the required notices of deficiency before it levied on her income to collect taxes and penalties. Exercising jurisdiction under
Janet Walcott appeals the district court's grant of summary judgment to the government on her claim that the Internal Revenue Service (IRS) failed to send her the required notices of deficiency before it levied on her income to collect taxes…
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RICO: Separate Roles Performed in Concert ≠ Enterprise — Must Factually Allege Structural Features Like Common Purpose, Relationship & Longevity Needed to Pursue Enterprise’s Purpose — Conclusory Allegations Insufficient

 Sheikh v. Wheeler, 2019 U.S. App. LEXIS 31093 (7th Cir. Oct. 18, 2019) (unpublished): Zafar Sheikh obtained a loan to purchase a supermarket. He fell behind with the mortgage payments, and the bank initiate ...
Sheikh v. Wheeler, 2019 U.S. App. LEXIS 31093 (7th Cir. Oct. 18, 2019) (unpublished): Zafar Sheikh obtained a loan to purchase a supermarket. He fell behind with the mortgage payments, and the bank initiated foreclosure proceedings. He then filed suit,…
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RICO: Plaintiff Must Plausibly Allege Common Purpose to State Associated-in-Fact Enterprise — Sanctions: Vexatious Litigant Injunction Factors (2d Circuit)

 Vidurek v. Koskinen, 2019 WL 5152509 (2d Cir. Oct. 15, 2019) (unpublished): ohn Vidurek and Kimberly Vidurek, pro se, appeal from a judgment of the District Court (Briccetti, J.), granting the Defendants-appellees’ motions to dismiss under
Vidurek v. Koskinen, 2019 WL 5152509 (2d Cir. Oct. 15, 2019) (unpublished): ohn Vidurek and Kimberly Vidurek, pro se, appeal from a judgment of the District Court (Briccetti, J.), granting the Defendants-appellees’ motions to dismiss under Rules 12(b)(1), …
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Civil Contempt Sanction of $1,000/Day until Discovery Order Honored — Disc’y per Rules 34(a), 45 & in Ch. 15 Bkcy Case Not Limited to Docs in U.S. — Issue Is Practical Ability to Obtain Them (“Control”) — Factors for Contempt & Coercive Sanction

 In re Markus, 2019 Bankr. LEXIS 3276, 2019 WL 5257902 (S.D.N.Y. Bankr. Oct. 16, 2019): On October 8, 2019, the Court entered an Order imposing sanctions on Victor A. Worms, Esq. (“Worms”), couns ...
In re Markus, 2019 Bankr. LEXIS 3276, 2019 WL 5257902 (S.D.N.Y. Bankr. Oct. 16, 2019): On October 8, 2019, the Court entered an Order imposing sanctions on Victor A. Worms, Esq. (“Worms”), counsel of record for the foreign debtor …
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Rule 37(c)(1) Sanctions: District Judge’s Review Magistrate of Judge’s Decision Is for Abuse of Discretion — 5-Factor 37(c)(1) Test (6th Cir.) — Can Timely Production (within Fact Discovery Period) Still Be Sanctionably Late? (Footnote 7)

Bisig v. Time Warner Cable, Inc., 2019 WL 4894348 (6th Cir. Oct. 4, 2019): *1 This case is about promises made, promises broken, and disclaimers signed. And it is a reminder that not every broken promise occasions a legal remedy. Plaintiffs
Bisig v. Time Warner Cable, Inc., 2019 WL 4894348 (6th Cir. Oct. 4, 2019): *1 This case is about promises made, promises broken, and disclaimers signed. And it is a reminder that not every broken promise occasions a legal remedy.…
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Experts: Rule 37(c)(1) Exclusion Is Discretionary, Not Self-Executing, Even Where Undisclosed Opinion Is Complete About-Face — 2-1 Eleventh Circuit Decision

Teresa Taylor here sues Mentor Worldwide LLC ("Mentor") and Mentor Corporation1 for compensatory and punitive damages for injuries she suffered as a result of the surgical implantation of a polypropylene mesh sling manufactured by Mentor to treat her stress urinary incontinence. The jury found Men ...
Teresa Taylor here sues Mentor Worldwide LLC ("Mentor") and Mentor Corporation1 for compensatory and punitive damages for injuries she suffered as a result of the surgical implantation of a polypropylene mesh sling manufactured by Mentor to treat her stress…
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Experts: Rule 37(c)(1) Discretion Inapt If Late-Disclosing Party Fails to Show Good Cause to Modify Protective Order Deadline for Expert Reports, Necessitating Exclusion — 2-1 Eighth Circuit Decision

 Petrone v. Werner Enters., 2019 U.S. App. LEXIS 30344 (8th Cir. Oct. 10, 2019): Philip Petrone and others (collectively, Plaintiffs) filed a class action against Werner Enterprises, Inc. and Drivers ...
Petrone v. Werner Enters., 2019 U.S. App. LEXIS 30344 (8th Cir. Oct. 10, 2019): Philip Petrone and others (collectively, Plaintiffs) filed a class action against Werner Enterprises, Inc. and Drivers Management, LLC (collectively, Defendants) arising out of an eight-week student-driver …
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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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