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Rivas v. Bank of New York Mellon, 2019 WL 2419484 (11th Cir. June 10, 2019) (unpublished): PER CURIAM: *1 Armando Rivas, proceeding pro se, appeals the district court’s dismissal of his amended complaint alleging that the defendants—entities in the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

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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