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

Offensive (Nonmutual) Collateral Estoppel: 4 Factors — Identicality = Same Issues, Not Claims — Necessity Met If Finding Essential to Remedy, Even If Not Jmt — Legal Issues Reviewed De Novo, Fairness for Abuse of Discretion

 Bifolck v. Philip Morris United States, 2019 U.S. App. LEXIS 25023 (2d Cir. Aug. 22, 2019): Vincent Bifolck, individually and as executor of the estate of his deceased wife Jeanette Bifolck, appeals from a ...
Bifolck v. Philip Morris United States, 2019 U.S. App. LEXIS 25023 (2d Cir. Aug. 22, 2019): Vincent Bifolck, individually and as executor of the estate of his deceased wife Jeanette Bifolck, appeals from a judgment of the United States District…
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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Sorensen v. Polukoff, 2019 WL 3819629 (10th Cir. Aug. 15, 2019) (Unpublished): 1 Sherman Sorensen, M.D., appeals the dismissal of his claims under the Racketeer Influenced and Corrupt Organizations Act (RICO),
Sorensen v. Polukoff, 2019 WL 3819629 (10th Cir. Aug. 15, 2019) (Unpublished): 1 Sherman Sorensen, M.D., appeals the dismissal of his claims under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962.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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Appeals: In Bankruptcy Appeal, Circuit Sits As Second Court of Review & Independently Examines Factual & Legal Determinations of Bankruptcy Court, Using Same Standards As District Court

 In re Crawford, 2019 U.S. App. LEXIS 24570 (11th Cir. Aug. 19, 2019) (unpublished): PER CURIAM: Brett Elam appeals portions of the bankruptcy court's order sanctioning him for misconduct in the Chapter 11 pr ...
In re Crawford, 2019 U.S. App. LEXIS 24570 (11th Cir. Aug. 19, 2019) (unpublished): PER CURIAM: Brett Elam appeals portions of the bankruptcy court's order sanctioning him for misconduct in the Chapter 11 proceeding below. As debtor's counsel, Elam sought …
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Rule 45 (Or Inherent Power) Sanctions: Fees for Trial Subpoena End Run Around Discovery Deadline — Sub Has Standing to Move to Quash for Parent — Due Process: Rule 45 Puts Counsel on Notice of Its Terms — FRAP 38 Fees for Post-Hoc Rationalizations

Progresive Emu Inc. v. Nutrition & Fitness Inc., 2019 WL 3798494 (11th Cir. Aug. 13, 2019) (unpublished): PER CURIAM:   *1 This appeal arises from a breach-of-contract dispute between Plaintiff Progressive Emu Inc.,1 a producer and supplier of emu ...
Progresive Emu Inc. v. Nutrition & Fitness Inc., 2019 WL 3798494 (11th Cir. Aug. 13, 2019) (unpublished): PER CURIAM:   *1 This appeal arises from a breach-of-contract dispute between Plaintiff Progressive Emu Inc.,1 a producer and supplier of emu oil,…
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Sanctions: Omission Must Be Material before Dismissal May Be Apt — Materiality Defined — State of Mind Critical (Contract, Tort Examples)

Greyer v. Ill. Dep’t of Corrections, 2019 WL 3798212 (7th Cir. Aug. 13, 2019): *1 One of Congress’s expressed goals when it passed the Prison Litigation Reform Act (“PLRA”) was to rein in the flood of prisoner litigation—all too often frivolous or vexatious, it thought—clogging the courts. See Margo Schlan ...
Greyer v. Ill. Dep’t of Corrections, 2019 WL 3798212 (7th Cir. Aug. 13, 2019): *1 One of Congress’s expressed goals when it passed the Prison Litigation Reform Act (“PLRA”) was to rein in the flood of prisoner litigation—all too often…
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Experts — Legal Malpractice Expert Who Describes Only How S/he Does Same Task for Same Client Fails to Establish What Defendant Should Have Done — Opinion Properly Excluded under 37(c)(1) as Overly Broad, Subjective, Non-Compliant with 26(a)

 EQT Prod. Co. v. Phillips, 767 Fed. Appx. 626 (6th Cir. Mar. 29, 2019): This legal malpractice case arises from title opinions that attorney Dale Phillips ("Phillips") provided to EQT Prod ...
EQT Prod. Co. v. Phillips, 767 Fed. Appx. 626 (6th Cir. Mar. 29, 2019): This legal malpractice case arises from title opinions that attorney Dale Phillips ("Phillips") provided to EQT Production Company ("EQT") regarding EQT's rights and ownership in certain …
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Sanctions Issue Certified to 2d Cir. — May a Bankruptcy Court Order “Punitive Sanctions” under Its Inherent Power, § 105(a) or for Violation of Rule 3002.1(i)? — [May Any Court Issue Punitive Sanctions after Goodyear v. Haeger?]

 In re Gravel, 2019 Bankr. LEXIS 2576 (Bankr. D. Vt. Aug. 12, 2019): MEMORANDUM OF DECISION Certifying Decision for Direct Appeal Under
In re Gravel, 2019 Bankr. LEXIS 2576 (Bankr. D. Vt. Aug. 12, 2019): MEMORANDUM OF DECISION Certifying Decision for Direct Appeal Under 28 U.S.C. § 158(d)(2) The chapter 13 trustee has filed a motion, pursuant to 28 U.S.C. § 158(d)(2)(A)…
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Rule 11—No Sanctions for “Aggressive Lit. Strategy with Colorable (If Strained) Basis,” “Understandable” “Mix-Up” — “It Is One Thing to Lose … Another to Urge Something [Sufficiently] Ill-Founded” (Good Quotes)

 MAO-MSO Recovery II, LLC v. State Farm Mut. Auto. Ins. Co., 2019 U.S. App. LEXIS 24355 (7th Cir. Aug. 15, 2019): When all the dust is cleared away, this case is relatively straightforward: we must review a ...
MAO-MSO Recovery II, LLC v. State Farm Mut. Auto. Ins. Co., 2019 U.S. App. LEXIS 24355 (7th Cir. Aug. 15, 2019): When all the dust is cleared away, this case is relatively straightforward: we must review a dismissal for lack…
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Inherent Power Sanctions for Violation of Court Order — Orders Must Be Complied with Until Undone — Contempt Option If Party Has No Recourse to Permit Prompt Appeal Because Violation Cannot Be Undone

MacNaughton v. Harmelech, 2019 WL 3451275 (7th Cir. July 31, 2019): *1 The complex background of these consolidated appeals burrows through over a decade of litigation. Russian Media Group sued Ishaihu Harmelech and his company (“Harmelech Defendants”) in 2006. Attorney W. James Mac Naughton actively repre ...
MacNaughton v. Harmelech, 2019 WL 3451275 (7th Cir. July 31, 2019): *1 The complex background of these consolidated appeals burrows through over a decade of litigation. Russian Media Group sued Ishaihu Harmelech and his company (“Harmelech Defendants”) in 2006. Attorney …
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Arbitration — Choice of Law, Like Arb., Clause, Invokable Only by Party with Standing to Enforce Contract — Collection Agent Can’t Enforce Arb Clause between Bank & Customer as 3d Party Beneficiary, Agent or Via Equitable Estoppel

 Orn v. Alltran Fin., L.P., 2019 U.S. App. LEXIS 20744 (3d Cir. July 12, 2019) (unpublished): Alltran Financial, a debt collector, appeals the District Court's denial of its motion to compel arbitration ...
Orn v. Alltran Fin., L.P., 2019 U.S. App. LEXIS 20744 (3d Cir. July 12, 2019) (unpublished): Alltran Financial, a debt collector, appeals the District Court's denial of its motion to compel arbitration of Diane Orn's suit under the Fair Debt …
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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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