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

Inherent Power: in Exceptional Case, Bad Faith Conduct at Issue in Case May Be Sanctioned — Unless Appeal Is Sanctionable, Fact It Arises Out of Such Conduct Irrelevant — 28 U.S.C. §2412 Codifies Inherent Power, Waives Sovereign U.S.’s Immunity

Luther v. United States, 2019 WL 1645983 (5th Cir. Apr. 17, 2019): *1 The Equal Access to Justice Act,
Luther v. United States, 2019 WL 1645983 (5th Cir. Apr. 17, 2019): *1 The Equal Access to Justice Act, 28 U.S.C. § 2412(b), waives the government’s sovereign immunity for the imposition of attorneys’ fees “to the same extent that…
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RICO: Plaintiff Must Plead Specifics as to Each Defendant, No “Lumping” (Good Quote) — Conclusory Allegations of Enterprise Insufficient — No Threat of Continuing Criminal Activity when Everything Occurs in Connection with a Trial

Walker v. Beaumont Independent Sch. Dist., 2019 WL 4458378 (5th Cir. Sept. 18, 2019): *1 With this appeal, we review the district court’s dismissal of the entirety of Appellants’ claims pursuant to the Texas Citizens’ Participation Act, (“TCPA”),
Walker v. Beaumont Independent Sch. Dist., 2019 WL 4458378 (5th Cir. Sept. 18, 2019): *1 With this appeal, we review the district court’s dismissal of the entirety of Appellants’ claims pursuant to the Texas Citizens’ Participation Act, (“TCPA”), TEX. CIV. …
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Even After All Parties Have Consented to Plenary Jurisdiction of Magistrate Judge, Only District Judge May Rule on Motion to Withdraw Consent to Jurisdiction of Magistrate Judge — Circuit Split

   Branch v. Umphenour, 2019 U.S. App. LEXIS 26784 (9th Cir. Sept. 5, 2019): Appellant Louis Branch, a prisoner in the California state prison system, brought this pro se suit alleging civil ...
Branch v. Umphenour, 2019 U.S. App. LEXIS 26784 (9th Cir. Sept. 5, 2019): Appellant Louis Branch, a prisoner in the California state prison system, brought this pro se suit alleging civil rights violations by various prison officials. After the conclusion …
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Inherent Power Sanctions—While Court May Sanction for Noncompliance with Order, It Is Not Required to (Good Quote) — Rooker-Feldman Inapplicable to Independent Claim, Even If It Denies State Court Legal Conclusion in Case to Which Plaintiff Was Party

Williams v. Capital One Bank (USA) N.A., 2019 WL 4187363 (11th Cir. Sept. 4, 2019) (unpublished): PER CURIAM: *1 Troy Williams appeals the dismissal of his Fair Credit Reporting Act (FCRA) claims against Capital One Bank (USA), N.A., and the entry of summary judgment on his FCRA claims against Equifax Informati ...
Williams v. Capital One Bank (USA) N.A., 2019 WL 4187363 (11th Cir. Sept. 4, 2019) (unpublished): PER CURIAM: *1 Troy Williams appeals the dismissal of his Fair Credit Reporting Act (FCRA) claims against Capital One Bank (USA), N.A., and the…
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Expert Testimony: Whether Judge Applied Proper Legal Framework Reviewed De Novo — If So, Abuse of Discretion for Decision — While Daubert Doesn’t Bar Generalist from Specialized Opinions, S/he Must Be Qualified for Each One

 United States v. Truitt, 2019 U.S. App. LEXIS 27497 (7th Cir. Sept. 12, 2019): In late 2009 Cathy Truitt filed seven nearly identical tax returns, each falsely claiming that she was entitled to a $3 ...
United States v. Truitt, 2019 U.S. App. LEXIS 27497 (7th Cir. Sept. 12, 2019): In late 2009 Cathy Truitt filed seven nearly identical tax returns, each falsely claiming that she was entitled to a $300,000 refund. The IRS identified six …
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Spoliation of Video Reviewed under Tangible Spoliation Standard, Not Rule 37(e) (Isn’t a Video Electronically Stored?) — 2d Cir. Factors — No Abuse of Discretion to Deny Adverse Inference Where Destruction Per 90-Day Policy & Issue Argued to Jury

 Johnson v. Perry, 2019 U.S. App. LEXIS 6855 (2d Cir. Mar. 5, 2019) (unpublished): SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED
Johnson v. Perry, 2019 U.S. App. LEXIS 6855 (2d Cir. Mar. 5, 2019) (unpublished): SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Plaintiff-appellant Glenn Johnson, appearing …
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Authentication of Social Media Evid. Evaluated on Case-by-Case Basis — Proponent Must Corroborate ID of Author (Good Quotes) — Contextual Clues Inadequate Where No IP Address Obtained & 11 Other Pages Have Same Name

 Commonwealth v. Gardner, 2019 Pa. Super. Unpub. LEXIS 3055 (Pa. Super. Ct. Aug. 13, 2019): Appellant, Leo A. Gardner, appeals from the Judgment of Sentence entered in the Monroe County Court of Comm ...
Commonwealth v. Gardner, 2019 Pa. Super. Unpub. LEXIS 3055 (Pa. Super. Ct. Aug. 13, 2019): Appellant, Leo A. Gardner, appeals from the Judgment of Sentence entered in the Monroe County Court of Common Pleas on August 16, 2018, following his …
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Arbitration: Appealability — Order Compelling Arbitration Not Appealable Unless It Disposes of Entire Action — Merely Directing Arbitration Or Staying Action Pending Arbitration Requires §1292(b) Certification

Gold Coast Prop. Mgmt. v. Certain Underwriters at Lloyds, 2019 U.S. App. LEXIS 27098 (11th Cir. Sept. 6, 2019): THE COURT: This appeal is DISMISSED, sua sponte, for lack of jurisdiction.
Gold Coast Prop. Mgmt. v. Certain Underwriters at Lloyds, 2019 U.S. App. LEXIS 27098 (11th Cir. Sept. 6, 2019): THE COURT: This appeal is DISMISSED, sua sponte, for lack of jurisdiction. The district court's June 14, 2019 order granting the …
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Attorney-Client Privilege: Crime-Fraud Applies to Commc’n Precipitating Fraud Even If Different Tack Used — RICO: Unadjudicated Civil Action = Property — No Mens Rea for Unlawful Debt But Knowledge Statutory Definition Satisfied

United States v. Neff, 2019 WL 4235218 (3d Cir. Sept. 6, 2019) (unpublished): Charles Hallinan and Wheeler Neff were convicted of conspiring to collect unlawful debts in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), federal fraud, ...
United States v. Neff, 2019 WL 4235218 (3d Cir. Sept. 6, 2019) (unpublished): Charles Hallinan and Wheeler Neff were convicted of conspiring to collect unlawful debts in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), federal …
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Recent Posts

Rule 37 Default Judgment Sanction: (1) Abuse of Discretion Review = Legal Conclusions De Novo. Factual Findings for Clear Error — (2) Client May Be Sanctioned for Misconduct of Its Counsel, Though Here Client Was Directly Involved in Bad Faith Misbehavior — (3) Is There A Difference, Under Rule 11 As Opposed to Rule 37, Concerning Whether A Client Can Be Sanctioned for Its Counsel’s Misconduct? — (4) While Sanctions of Last Resort (Dismissal/Default) Are Apt Only If Lesser Sanctions Wouldn’t Ensure Compliance, Rule 37 Doesn’t Require the Vain Gesture of First Imposing Lessert Sanctions When It Is Clear They Would be Ineffective — (5) Court’s Reconsideration of Non-Final Orders Is Governed by Rule 54(b), And Court’s Discretion under That Rule Is Governed by the Law-of-the-Case-Doctrine

RICO: (1) Special Pleading Requirements? — (2) Although Enterprise Must Be More Than a Summation of the Predicate Acts, The Predicate Acts Can Demonstrate the Existence of the Enterprise — (3) Requirement That Association-in-Fact Exist For Purposes Other Than Just to Commit Predicate Acts Merely Requires Continuity — (4) To State an Association-in-Fact Enterprise Consisting of One Natural Person and Collection of Legal Fictions Requires Factual Detail As to How They Acted Together — (5) “A § 1962(c) Enterprise Must Be More Than An Association of Individuals Or Entities Conducting the Normal Affairs of a Defendant Corporation” (Good Quote)

RICO: (1) Fee Award May Exceed Amount Recovered — Strict Proportionality Not Required — (2) Nonmonetary Benefits and Injunctive Relief Recovered Also Relevant Factors — (3) Loss on Some Claims Need Not Result in Lowered Fees, Especially When Both Arise Out of The Same Nucleus of Operative Facts

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

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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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