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

Court Has No Inherent Power to Compel a Specific, High-Ranking State Official (U. Pres.) to Attend Settlement Conference Or to Make It Public — Purpose of Rule 16 Settlement Conference Is to Settle, Not Provide Public Forum

 In re Univ. of Mich., 2019 U.S. App. LEXIS 25304 (6th Cir. Aug. 23, 2019): This case is about power. The power of district courts to manage their cases and our power to review that process. Questions about ...
In re Univ. of Mich., 2019 U.S. App. LEXIS 25304 (6th Cir. Aug. 23, 2019): This case is about power. The power of district courts to manage their cases and our power to review that process. Questions about judicial power…
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Rule 37(b)(2)(A) Sanctions — Dismissal for Violation of Discovery Order Reversed Where Party Appeared for Deposition Per Order, Was Questioned for Hours, Left for Work, and Order Stated No End Time — Unasked Questions Must Be ID’ed to Show Prejudice

Akins v. So. Glazer’s Wine & Spirits of Ark. LLC, 2019 WL 4071876 (8th Cir. Aug. 29, 2019) (unpublished): PER CURIAM. *1 Henry Akins appeals after the district court dismissed with prejudice his employment discrimination complaint as a sanction for not obeying a discovery order under
Akins v. So. Glazer’s Wine & Spirits of Ark. LLC, 2019 WL 4071876 (8th Cir. Aug. 29, 2019) (unpublished): PER CURIAM. *1 Henry Akins appeals after the district court dismissed with prejudice his employment discrimination complaint as a sanction for…
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RICO: Whether a Pattern Exists (Predicates + Relationship + Threat of Continuing Activity) Is a Jury Question — Mailing Need Only Be Incident to Fraud, Not Fraudulent — Limited Scope of 9(b) Particularity

Sorensen v. Polukoff, 2019 WL 3819629 (10th Cir. Aug. 15, 2019) (Unpublished): 1 Sherman Sorensen, M.D., appeals the dismissal of his claims under the Racketeer Influenced and Corrupt Organizations Act (RICO),
Sorensen v. Polukoff, 2019 WL 3819629 (10th Cir. Aug. 15, 2019) (Unpublished): 1 Sherman Sorensen, M.D., appeals the dismissal of his claims under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962. The district …
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Rule 37/41 Dismissal — 6th Cir.’s 4-Factor Test — Reckless Disregard Sufficient Mental State — While Lesser Sanctions Should Be Considered, Court Has Power to Dismiss As “First & Only Sanction”

 McElrath v. City of Cleveland, 2019 U.S. App. LEXIS 24598 (6th Cir. Aug. 16, 2019) (unpublished): Ayanna and LaCretia McElrath, pro se Ohio litigants, appeal the district court's judgment dismissing the ...
McElrath v. City of Cleveland, 2019 U.S. App. LEXIS 24598 (6th Cir. Aug. 16, 2019) (unpublished): Ayanna and LaCretia McElrath, pro se Ohio litigants, appeal the district court's judgment dismissing their civil rights action pursuant to Federal Rules of Civil …
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Experts — Daubert Review: Abuse-of-Discretion Standard Applies as Much to the Trial Court’s Decisions about How to Determine Reliability as to Its Ultimate Conclusion

 Water Pollution Control Auth. v. Flowserve US, Inc., 2019 U.S. App. LEXIS 22512 (2d Cir. July 30, 2019) (unpublished): SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDE ...
Water Pollution Control Auth. v. Flowserve US, Inc., 2019 U.S. App. LEXIS 22512 (2d Cir. July 30, 2019) (unpublished): SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED…
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Texts — Hearsay: Adoptive Admission by Silence — Three Factors — “Because of The Inherently Equivocal Nature of Silence, Such Evidence Must Be Received with Caution” (Good Quote)

Andre Vargas was convicted of four counts of third degree child rape for raping his daughter during the summer before her ninth grade year when she was 14. At trial, the State presented testimony from the victim, people she had told about the sexual abuse when she was a senior in high school, and an expert on delayed disclosure. The State presented no physical ev ...
Andre Vargas was convicted of four counts of third degree child rape for raping his daughter during the summer before her ninth grade year when she was 14. At trial, the State presented testimony from the victim, people she had…
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Discovery Sanction: Evasive or Incomplete Interrogatory Answer = No Answer — While Striking Claim Is Extreme, More Demanding Standard Applied in Civil Forfeiture Actions to Special Interrogatories on Standing

 United States v. 284,950.00 in United States Currency, 2019 U.S. App. LEXIS 23947 (8th Cir. Aug. 12, 2019): Nikkolas Thompson appeals the district court's1 ...
United States v. 284,950.00 in United States Currency, 2019 U.S. App. LEXIS 23947 (8th Cir. Aug. 12, 2019): Nikkolas Thompson appeals the district court's1 judgment in favor of the United States in this civil forfeiture action. We affirm. In …
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Spoliation: Adverse Inference Requires Actual Suppression or Withholding — Inapt If Evidence “Lost or Accidentally Destroyed” or Failure “Is Otherwise Properly Accounted for” (Good Quotes)

 Layden v. Target Corp, 768 Fed. Appx. 152 (3d Cir. April 17, 2019): Donna Layden slipped and fell in Target and filed suit for negligence. The District Court granted summary judgment to Target after discove ...
Layden v. Target Corp, 768 Fed. Appx. 152 (3d Cir. April 17, 2019): Donna Layden slipped and fell in Target and filed suit for negligence. The District Court granted summary judgment to Target after discovery, concluding that Layden failed to…
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Facebook/Social Media Authentication Has 2 Parts: Proponent Must Supply Evidence as to Both (i) Who Owns the Page, and (ii) Who Took the Action Sufficient to Allow Jury to Find Both

Sample v. State, 2019 Md. App. LEXIS 642, 2019 WL 3451812 (Md. Ct. Spec. App. July 31, 2019): Appellant Hayes Sample was convicted by a jury in the Cir ...
Sample v. State, 2019 Md. App. LEXIS 642, 2019 WL 3451812 (Md. Ct. Spec. App. July 31, 2019): Appellant Hayes Sample was convicted by a jury in the Circuit Court for Baltimore County of attempted armed robbery, first degree …
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Inherent Power Sanctions: Dismissal for Disregard of Order Not Abuse of Discretion Where Litigant Forewarned — Nor Is Dismissal without Prejudice — Meaning of Abuse of Discretion (11th Circuit)

Frank v. Schulson, 2019 WL 3545891 (11th Cir. Aug. 5, 2019) (unpublished): *1 Kenneth Frank, a Florida state pretrial detainee proceeding pro se, appeals the district court’s order dismissing without prejudice his civil rights complaint, in which he alleged claims under, inter alia,
Frank v. Schulson, 2019 WL 3545891 (11th Cir. Aug. 5, 2019) (unpublished): *1 Kenneth Frank, a Florida state pretrial detainee proceeding pro se, appeals the district court’s order dismissing without prejudice his civil rights complaint, in which he alleged claims…
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Recent Posts

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

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

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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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