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

Res Judicata: Federal Court Order Confirming Arbitration Award Has Same Preclusive Effect As Final Judgment, Which Is Determined by State Law in Diversity Case — Non-Party Parent Corp. Entitled to Same Preclusive Benefit as Wholly-Owned Subsidiary/Party

NTCH-WA, Inc. v. ZTE Corp., 2019 U.S. App. LEXIS 12283 (9th Cir. April 25, 2014): Plaintiff-Appellant NTCH-WA, Inc. previously arbitrated breach of con ...
NTCH-WA, Inc. v. ZTE Corp., 2019 U.S. App. LEXIS 12283 (9th Cir. April 25, 2014): Plaintiff-Appellant NTCH-WA, Inc. previously arbitrated breach of contract and related claims against ZTE USA, a wholly-owned subsidiary of Defendant-Appellee ZTE Corp. ZTE Corp. was …
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Hearsay — Rule 801(d)(2) — Employee Must Still Be Employed But Needn’t Be in Same Position When Making Admission (Circuit Split — See Dissent, Note 4) — Irrelevance of 2011 Amendment

Weil v. Citizens Telecom Servs. Co., LLC, 2019 U.S. App. LEXIS 12666, 2019 WL 1891796 (9th Cir. April 29, 2019): Hearsay does not include statements offered ag ...
Weil v. Citizens Telecom Servs. Co., LLC, 2019 U.S. App. LEXIS 12666, 2019 WL 1891796 (9th Cir. April 29, 2019): Hearsay does not include statements offered against a party, made by that party's employee on a matter within the…
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Text Authentication — Recipient’s Testimony + Alleged Sender’s Admission That They Texted and Inability to Deny That “These Messages Are True” — Printouts Admitted Absent Genuine Issue as to Accuracy

In re Parenting Of: T.P.D.C. v. Staat, 2019 MT 107N, 2019 Mont. LEXIS 167 (Mont. May 7, 2019) (non-precedential):  [*P1]  Pursuant to Sectio ...
In re Parenting Of: T.P.D.C. v. Staat, 2019 MT 107N, 2019 Mont. LEXIS 167 (Mont. May 7, 2019) (non-precedential):  [*P1]  Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion…
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Inherent Power Sanctions — D.Ct. Should Consider Lesser Sanctions before Dismissing, But Need Not If Plaintiff Acted in Bad Faith, Has Significant Litigation Experience [Especially] with In Forma Pauperis Statute

Shepherd v. Annucci, 2019 U.S. App. LEXIS 10971 (2d Cir. April 15, 2019): Plaintiff-Appellant Eon Shepherd appeals from the judgment of the United Stat ...
Shepherd v. Annucci, 2019 U.S. App. LEXIS 10971 (2d Cir. April 15, 2019): Plaintiff-Appellant Eon Shepherd appeals from the judgment of the United States District Court for the Western District of New York (Larimer, J.), which dismissed his pro …
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Suspending Sanctions ‘Til New Violation — Dist. Court Has FRAP 38-Like Sanctions for Bkcy. Appeals — Cutting Brief Pages as Sanction — Lack of Merit + Motive = Objective Bad Faith — Attacks on Court, Counsel Sxable—Fed. Cts. & St. Discipline

In re Lisse, 2019 U.S. App. LEXIS 9496 (7th Cir. April 1, 2019): Attorney Wendy Alison Nora appeals a decision requiring her and her client to pay damages and ...
In re Lisse, 2019 U.S. App. LEXIS 9496 (7th Cir. April 1, 2019): Attorney Wendy Alison Nora appeals a decision requiring her and her client to pay damages and costs related to this bankruptcy litigation, as well as an…
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Court Lacks Inherent Power (IHP) to Release Grand Jury Records — Limited to Exceptions in Fed. R. Crim. P. 6(e) — Exercise of IHP Can’t Be Contrary to Express Grant of or Limitation on, Court’s Power in Rule or Statute

McKeever v.
McKeever v. Barr, 2019 U.S. App. LEXIS 10061, 2019 WL 1495027 (D.C. Cir. April 5, 2019) (2-1 decision): Historian Stuart A. McKeever appeals an order of the district court denying his petition to release grand jury records from the …
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Sanctions: Should Lawyer’s Sins Be Visited on Client? (Opinion vs. Concurence) — R 37 Dismissal (Factors) for Misconduct at Adverse Medical Exam — Secret Recording Deceptive Even If Legal

Mager v. Wis. Cent., 2019 U.S. App. LEXIS 14364 (6th Cir. May 15, 2019): Peter Mager sought to recover damages under the Federal Employer's Liabili ...
Mager v. Wis. Cent., 2019 U.S. App. LEXIS 14364 (6th Cir. May 15, 2019): Peter Mager sought to recover damages under the Federal Employer's Liability Act (FELA), 45 U.S.C. § 51, et seq., for injuries he allegedly  [**2]  sustained…
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If Daubert Framework Followed, Appellate Review = Abuse of Discretion—Expert [Here, Experience-Based] Must “Demonstrate Conclusions More Than Guesses,” Have “Justification Beyond A Simple Say-So” (Good Quotes)

Varlen Corp. v. Liberty Mut. Ins. Co., 2019 U.S. App. LEXIS 14529 (7th Cir. May 16, 2019): Varlen Corporation owned and operated two industrial sites t ...
Varlen Corp. v. Liberty Mut. Ins. Co., 2019 U.S. App. LEXIS 14529 (7th Cir. May 16, 2019): Varlen Corporation owned and operated two industrial sites that were found to have significant amounts of groundwater contamination related to the sites' …
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Daubert: Fingerprint Analysis ≠ Junk Science — Court Must Explicitly Find Reliability, Can’t Defer to Jury [104(a) vs. (b)] — “Reliability Analysis Is a Malleable One” (Good Quote) — Fact Expert Found Qualified in Past Not, Alone, Enough

United States v. Ruvalcaba-Garcia, 2019 U.S. App. LEXIS 13986 (9th Cir. May 10, 2019): PER CURIAM: Mario Ruvalcaba-Garcia was convicted of viola ...
United States v. Ruvalcaba-Garcia, 2019 U.S. App. LEXIS 13986 (9th Cir. May 10, 2019): PER CURIAM: Mario Ruvalcaba-Garcia was convicted of violating 8 U.S.C. § 1326(a) for illegally reentering the United States after having been removed. His conviction was …
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2-Part Test for Disqualification (DQ) Due to Receipt of Inadvertently-Disclosed Information: Privilege + Unfair Advantage — DQ of One Lawyer Doesn’t Necessarily Require DQ of Co-Counsel: Each Must Be Judged Separately

Hildmeyer v. PNC Bank, N.A., 2019 U.S. Dist. LEXIS 77648 (M.D. Fla. May 9, 2019): Order On January 24, 2019, Magistrate Judge Irick ent ...
Hildmeyer v. PNC Bank, N.A., 2019 U.S. Dist. LEXIS 77648 (M.D. Fla. May 9, 2019): Order On January 24, 2019, Magistrate Judge Irick entered his Report and Recommendation (Doc. 100) (henceforth, the "Report") regarding the Motion to Disqualify (Doc.…
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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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