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

Erie Doctrine: State Trial Court Rulings Provide Guidance But Are Not Controlling Unless They Are Treated As Precedents within the State — [Generally] They Are “At Most Persuasive, But … Not Binding on a Federal Court”

Amaral Enters. Llc v. Gian, 2019 U.S. Dist. LEXIS 101269 (D. Mass. June 18, 2019): Footnote 6.  When a federal trial court sits in diversity, "[s]tate trial court rulings provide guidance but ar ...
Amaral Enters. Llc v. Gian, 2019 U.S. Dist. LEXIS 101269 (D. Mass. June 18, 2019): Footnote 6.  When a federal trial court sits in diversity, "[s]tate trial court rulings provide guidance but are not controlling unless they are treated as …
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Tangible Spoliation: Negligence Enough for Adverse Inference in 2d Cir. — RR Not Sanctioned for Altering Scene 3 Years Post-Accident (Passage of Time, Conflicting Safety Duty)—Expert Testimony Out Where Counsel Misled Adversary as to Gist (37(c)(1))

Colon v. Metro N. Commuter R.R. Co., 2019 U.S. App. LEXIS 18313 (2d Cir. June 19, 2019): Plaintiffs-Appellants Milton Omar Colon and Arlene Davis (collectively, "Plaintiffs") appeal from the judgmen ...
Colon v. Metro N. Commuter R.R. Co., 2019 U.S. App. LEXIS 18313 (2d Cir. June 19, 2019): Plaintiffs-Appellants Milton Omar Colon and Arlene Davis (collectively, "Plaintiffs") appeal from the judgment entered on October 19, 2017 by the United States District…
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Res Judicata: Prior Judgment Barring Later RICO Claim against Client Also Bars It against Client’s Counsel (Privity) — While Pro Se Pleadings Liberally Construed, Failure to Make Any Argument Waives Claimed Error

Rivas v. Bank of New York Mellon, 2019 WL 2419484 (11th Cir. June 10, 2019) (unpublished): PER CURIAM: *1 Armando Rivas, proceeding pro se, appeals the district court’s dismissal of his amended complaint alleging that the defendants—entities in the banking and loan industries, a law firm, and two a ...
Rivas v. Bank of New York Mellon, 2019 WL 2419484 (11th Cir. June 10, 2019) (unpublished): PER CURIAM: *1 Armando Rivas, proceeding pro se, appeals the district court’s dismissal of his amended complaint alleging that the defendants—entities in the banking…
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R. 37/16(f) Sanctions for Violating Protective Order by Reading Confidential Info Aloud in Court: Can’t Seek Fees for Sxs Issue from Later Fee App, Defense Fees Deducted from Any Award; Contingent Bar of Counsel from Arguing Again

In re Apple Device Performance Litig., 2019 U.S. Dist. LEXIS 100322 (N.D. Cal. June 14, 2019): ORDER RE MOTION FOR SANCTIONS Re: Dkt. N ...
In re Apple Device Performance Litig., 2019 U.S. Dist. LEXIS 100322 (N.D. Cal. June 14, 2019): ORDER RE MOTION FOR SANCTIONS Re: Dkt. No. 313 The Court expressed its disappointment with the parties, and with Mr. Cotchett and Mr.…
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Inherent Power to Dismiss for Want of Prosecution Animates Rule 41 — Factors (4th Cir.) ≠ “Rigid Test” — Clients Participated in Violations of Rules & Orders — Need to Alert District Court of Justifications, Else No Abuse of Discretion

Attkisson v. Holder, 2019 U.S. App. LEXIS 17882 (4th Cir. May 17, 2019, Amended June 10, 2019): Plaintiffs Sharyl Thompson Attkisson, James Howard Attk ...
Attkisson v. Holder, 2019 U.S. App. LEXIS 17882 (4th Cir. May 17, 2019, Amended June 10, 2019): Plaintiffs Sharyl Thompson Attkisson, James Howard Attkisson, [*2]  and Sarah Judith Starr Attkisson appeal from the dismissal with prejudice of their claims …
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Patent-Agent (PA)-Client Privilege Is Narrower Than Attorney-Client, Coextensive with Rights of PAs to Practice before USPTO, Defined by USPTO Regs: Services Nec’y to Prep /Prosecution of Patent Applications

Luv N' Care v. Williams Intellectual Prop., 2019 U.S. Dist. LEXIS 98960 (D. Colo. June 12, 2019): This matter is before the Court on Plaintiff's
Luv N' Care v. Williams Intellectual Prop., 2019 U.S. Dist. LEXIS 98960 (D. Colo. June 12, 2019): This matter is before the Court on Plaintiff's Motion to Compel Williams Intellectual Property's Compliance with Subpoena and for Expedited Briefing [#1]…
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Rule 11 Sanctions: No Failure to Mitigate Fees Shown Where Warning Letters Ignored — Time Spent Reviewing Social Media Posts OK — Inability to Pay May Be Offset by Deterrence — No R. 11 Fees for Time Spent on Appeal

Horen v. Board of Educ. of City of Toledo Public Sch. Dist., 2016 WL 11599934 (6th Cir. Mar. 25, 2016): *1 Glenn Horen, proceeding pro se, appeals the district court’s imposition of
Horen v. Board of Educ. of City of Toledo Public Sch. Dist., 2016 WL 11599934 (6th Cir. Mar. 25, 2016): *1 Glenn Horen, proceeding pro se, appeals the district court’s imposition of Federal Rule of Civil Procedure 11 sanctions against…
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RICO Extraterritoriality: Focus of Mail or Wire (MoW) Fraud Stat. Is Use of MoW in Aid of Scheme, Is Domestic If Use Is Domestic & Core Component of Scheme — Bank Fraud Domestic If Core Component Is Use of Domestic MoW to Steal Property in US

Bascuñán v. Elsaca, 2019 WL 2455168 (2d Cir. June 13, 2019) (Bascuñán II) (the Second Circuit’s opinion in Bascuñán I is contained in our November 20, 2018 blog post): *1 This is the second time we have been asked to decide whether Jorge Yarur Bascuñán and affiliated parties (collec ...
Bascuñán v. Elsaca, 2019 WL 2455168 (2d Cir. June 13, 2019) (Bascuñán II) (the Second Circuit’s opinion in Bascuñán I is contained in our November 20, 2018 blog post): *1 This is the second time we have been asked to …
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RICO Enterprise: Only Some Defendants with Forum Selection Clause (FSC) or Arbitration Clause — All Defs “in Cahoots” with Signatory Stuck with FSC, All Plaintiffs with Arb. Clauses May Ask FSC Court Not to Enforce Them—FSC = Fed Law Iss.

Wilson v. 5 Choices, LLC, 2019 WL 2451068 (6th Cir. June 12, 2019): *1 Rebecca K. Wilson and twenty other Plaintiffs appeal the district court’s dismissal of Plaintiffs’ claims against 5 Choices, LLC and twenty-five other Defendants. Plaintiffs argue on appeal that the district court erred in dismissing their clai ...
Wilson v. 5 Choices, LLC, 2019 WL 2451068 (6th Cir. June 12, 2019): *1 Rebecca K. Wilson and twenty other Plaintiffs appeal the district court’s dismissal of Plaintiffs’ claims against 5 Choices, LLC and twenty-five other Defendants. Plaintiffs argue on…
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Pro Se Not Entitled to Rule 37 Attorney’s Fees — Pro Se Lawyer May Receive Attorney’s Fees per Inherent Power — Destruction of Records Per Business Policy before Notice of Claim Unsanctionable

Lucas v. Telemarketer Calling From (407) 476-5680 & Other Tel. Nos., 2019 U.S. App. LEXIS 16106 (6th Cir. May 29, 2019) (unpublished): Vincent Lucas, a pro se ...
Lucas v. Telemarketer Calling From (407) 476-5680 & Other Tel. Nos., 2019 U.S. App. LEXIS 16106 (6th Cir. May 29, 2019) (unpublished): Vincent Lucas, a pro se Ohio resident, appeals a district court judgment dismissing his complaint based upon…
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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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