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

Rule 37(a)(2) Sanctions: 4 Factors in + 4 More If Case-Ending (5th Cir.) — Is Striking Pleadings Always Case Ending? — An Effect Cannot Precede Its Cause (Good Quote)

Law Funder LLC v. Munoz, 2019 WL 2127559 (5th Cir. May 16, 2019): PER CURIAM: *1 The Law Funder, L.L.C., sued Sergio Munoz, Jr., and his law firm for legal malpractice. Finding a series of discovery violations and related malfeasance, the district court struck Munoz’s answer. Munoz did not move to replead, an ...
Law Funder LLC v. Munoz, 2019 WL 2127559 (5th Cir. May 16, 2019): PER CURIAM: *1 The Law Funder, L.L.C., sued Sergio Munoz, Jr., and his law firm for legal malpractice. Finding a series of discovery violations and related malfeasance,…
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Sanctions: Failure to Honor Safe Harbor Dooms R. 11 Motion — No Bad Faith for Inherent Power Where Claim Survived Dismissal Motion — A Single Amended Complaint, No Delay in Discovery, Then Prompt Dismissal of Claims ≠ §1927 Multiplicity

PER CURIAM: Akira Techs., Inc. v. Conceptant, Inc., 2019 WL 2024830 (4th Cir. May 8, 2019) (unpublished): Appellants Conceptant, Inc., NuCognition, Inc., Joshua Phipps, Andrey Mikhalchuk, and Lisa Houle appeal the district court’s order denying their motion for attorney’s fees against Appellee Akira Technologies, Inc. Becau ...
PER CURIAM: Akira Techs., Inc. v. Conceptant, Inc., 2019 WL 2024830 (4th Cir. May 8, 2019) (unpublished): Appellants Conceptant, Inc., NuCognition, Inc., Joshua Phipps, Andrey Mikhalchuk, and Lisa Houle appeal the district court’s order denying their motion for attorney’s fees…
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Rule 11 Sanctions for Stubbornly Pursuing Time-Barred Claim Despite Judicial Warning — Order to Show Cause for FRAP 38 Sanctions for Even More Frivolous Arguments on Appeal & Not Even Responding to 1 Dispositive Argument

Veit v. Frater, 2019 U.S. App. LEXIS 10711, 2019 WL 1568077 (7th Cir. April 11, 2019) (unpublished): In
Veit v. Frater, 2019 U.S. App. LEXIS 10711, 2019 WL 1568077 (7th Cir. April 11, 2019) (unpublished): In Veit v. Frater, 715 F. App'x 524 (7th Cir. 2017), we vacated the district court's decision that claim preclusion …
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Arbitration — By Signing NY Convention, Sovereign Waives Immunity from Enforcement in Other Signatory States, Per 28 U.S.C. §1605(a)(1) — No Waiver by Signing Int’l Agreement Not Mentioning Waiver — Waiver vs. Arb. Exceptions in §1605

Tatneft v. Ukr., 2019 U.S. App. LEXIS 15787 (D.C. Cir. May 28, 2019): J U D G M E N T This case was considered on the record fro ...
Tatneft v. Ukr., 2019 U.S. App. LEXIS 15787 (D.C. Cir. May 28, 2019): J U D G M E N T This case was considered on the record from the United States District Court for the District of Columbia,…
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Confidentiality of Litigation Docs—3 Standards: Rule 26(c), Common Law Right of Access, 1st Amendment — Judicial Records, Including Summary Judgment Exhibits, Presumptively Available under Common Law Rt. — Unclear If 1st Amend. Applies to SJ Exhs.

In re Avandia Mktg., Sales Practices & Prods. Liab. Litig., 2019 U.S. App. LEXIS 14794, 2019 WL 2119630 (3d Cir. May 15, 2019): Following a decision of the Dis ...
In re Avandia Mktg., Sales Practices & Prods. Liab. Litig., 2019 U.S. App. LEXIS 14794, 2019 WL 2119630 (3d Cir. May 15, 2019): Following a decision of the District Court granting summary judgment to GlaxoSmithKline LLC ("GSK"), the losing…
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Privilege & Work Product Apply to Public Relations Firm — Log Must Show All Elements of Priv. — Detailed Discussion of Fiduciary Exception (Inapt in Securities Fraud Case), Waiver, Predominant Business v. Legal Purpose, Crime-Fraud

Pearlstein v. Blackberry Ltd., 2019 U.S. Dist. LEXIS 45098, 2019 WL 1259382 (S.D.N.Y. March 19, 2019): OPINION AND ORDER REGARDING BLACKBERRY'S ...
Pearlstein v. Blackberry Ltd., 2019 U.S. Dist. LEXIS 45098, 2019 WL 1259382 (S.D.N.Y. March 19, 2019): OPINION AND ORDER REGARDING BLACKBERRY'S PRIVILEGE DESIGNATIONS KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE BACKGROUND This case is a putative class action alleging…
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Arbitration — 2-Step Analysis: Whether (1) Parties Entered into Arb. Agreement, (2) If So, It Delegates to Arbitrator Issue of Arbitrability? — Whether Litigant Is Subrogated to Arb. Agmt. Is Step (1) Question — Schein Affects Step (2) Only

Lloyd's Syndicate 457 v. FloaTEC, L.L.C., 2019 U.S. App. LEXIS 11256 (5th Cir. April 17, 2019): This case concerns a disputed siting of Big Foot in ...
Lloyd's Syndicate 457 v. FloaTEC, L.L.C., 2019 U.S. App. LEXIS 11256 (5th Cir. April 17, 2019): This case concerns a disputed siting of Big Foot in the Gulf of Mexico. We refer to a floating oil-drilling platform that rests …
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Rule 37(c)(1) Exclusion of Expert Testimony for Failure to Timely Disclose Expert Evidence “Falls in the Heartland of Case Management Decisions” and “Review Is Highly Deferential” (Good Quotes)

Grant v. Entertainment Cruises and Spirit Cruises, LLC, 2019 WL 2158218 (D.C. Cir. April 29, 2019): MEMORANDUM Grant appeals from a judgment entered against her after a bench trial in an action for personal injury she brought under the Jones Act,
Grant v. Entertainment Cruises and Spirit Cruises, LLC, 2019 WL 2158218 (D.C. Cir. April 29, 2019): MEMORANDUM Grant appeals from a judgment entered against her after a bench trial in an action for personal injury she brought under the Jones…
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Supreme Court: Impossibility Preemption Based on Agency Unwillingness to Allow Action Required by State Law to Be Decided by Judge, Not Jury, Including Subsidiary Fact Questions

 Merck Sharp & Dohme Corp. v. Albrecht, 2019 U.S. LEXIS 3542 (U.S. May 20, 2019): When Congress enacted the
Merck Sharp & Dohme Corp. v. Albrecht, 2019 U.S. LEXIS 3542 (U.S. May 20, 2019): When Congress enacted the Federal Food, Drug, and Cosmetic Act, ch. 675, 52 Stat. 1040, as amended, 21 U. S. C. §301 et seq., …
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Testimony As to Authorship, Substance of Unadmitted Texts Allowed, Authenticated by Tone, Contents, Access to Sending Device — Best Evidence Not Addressed

Commonwealth v. Louf, 2019 Mass. App. Unpub. LEXIS 403 (Mass. Ct. App. May 23, 2019) (summary decision): MEMORANDUM AND ORDER PURSUANT TO
Commonwealth v. Louf, 2019 Mass. App. Unpub. LEXIS 403 (Mass. Ct. App. May 23, 2019) (summary decision): MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 Following an eight-day trial in October, 2016, a jury convicted the defendant, Joseph Louf, of…
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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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