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

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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New Trial for Fraud Requires More Than “Differences in Recollection or Opinion” — 60(b) Denial of New Trial for Fraud Bars New Fraud Action — Action “Plainly Barred by Res Judicata” Is Baseless, Warrants Rule 11 Sanctions (Good Quotes)

Elkharwily v. Franciscan Health Sys., 2019 WL 2406946 (9th Cir. June 7, 2019) (unpublished): MEMORANDUM* In No. 17-35009 (“Elkharwily I”), Alaa Elkharwily, M.D., appeals the district court’s judgment after a jury trial his action against Franciscan Health System (“FHS”), alleging defamation and disabili ...
Elkharwily v. Franciscan Health Sys., 2019 WL 2406946 (9th Cir. June 7, 2019) (unpublished): MEMORANDUM* In No. 17-35009 (“Elkharwily I”), Alaa Elkharwily, M.D., appeals the district court’s judgment after a jury trial his action against Franciscan Health System …
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RICO Not Preempted by ERISA — Issue Waived on Appeal if Arguments “Underdeveloped, Conclusory or Unsupported by Law” — Failure to “Engage with the Reasons the District Court Gave” = Waiver (Good Quotes)

DiJoseph v. Standard Ins. Co., 2019 WL 2406629 (7th Cir. June 7, 2019) (unpublished): Teresa Di Joseph appeals the district court’s dismissal of her claims against Standard Insurance Company and UnitedHealth Group. Di Joseph sued the companies for terminating her long-term disability benefits. She brought thirteen claims u ...
DiJoseph v. Standard Ins. Co., 2019 WL 2406629 (7th Cir. June 7, 2019) (unpublished): Teresa Di Joseph appeals the district court’s dismissal of her claims against Standard Insurance Company and UnitedHealth Group. Di Joseph sued the companies for terminating her …
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Judicial Immunity: 2 Exceptions — 26(a) Disclosure of Amount of Attorney’s Fees But Failure to Produce Discovery Justifying It = 37(c) Exclusion — 5 Factor Substantial Justification / Harmless Error Test (6th Cir. = 4th)

  HLV, LLC v. Van Buren Cnty., 2019 WL 2273400 (6th Cir. Mary 28, 2019): *1 As many cases do, this one has taken on a new life as it progressed through the courts. What began as a collection action in state court has evolved into a federal civil rights and
HLV, LLC v. Van Buren Cnty., 2019 WL 2273400 (6th Cir. Mary 28, 2019): *1 As many cases do, this one has taken on a new life as it progressed through the courts. What began as a collection action in …
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§1782 Application Denied Where It Sought (1) Discovery Available from Party to Foreign Litigation, (2) to Circumvent Restrictive Foreign Discovery Practices & (3) Evidence from Foreign Subsidiary of Subpoenaed U.S. Entity

Effecten-Spiegel AG v. Merrill Lynch, Pierce, Fenner & Smith Inc., 2019 U.S. App. LEXIS 17061, 2019 WL 2354776 (2d Cir. June 4, 2019) (unpublished): UPON DUE C ...
Effecten-Spiegel AG v. Merrill Lynch, Pierce, Fenner & Smith Inc., 2019 U.S. App. LEXIS 17061, 2019 WL 2354776 (2d Cir. June 4, 2019) (unpublished): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the…
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Discovery Sanctions (26, 37, 1928, Inherent Power) Properly Denied Where All Materials Eventually Produced, None of the Late-Produced Documents Affected the Outcome, and Both Sides Contributed to Delay and Expense

Green v. City of Southfield, 2019 U.S. App. LEXIS 15744 (6th Cir. May 28, 2019): Two cars collided in a busy intersection in a Detroit suburb. The police decid ...
Green v. City of Southfield, 2019 U.S. App. LEXIS 15744 (6th Cir. May 28, 2019): Two cars collided in a busy intersection in a Detroit suburb. The police decided that one of the drivers, Dawn Green, ran a red…
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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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