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

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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RICO: LIBOR Fraud Not Proximate Cause of Loss on Bonds Not Tied to LIBOR — Injury Directly Caused by Independent Actors — Inaptness of Fraud on Market Theory, Event Studies & Efficient Capital Markets Hypothesis Evidences No Proximate Cause

7 West 57th Street Realty Co., LLC v. Citigroup, Inc., 2019 WL 1914278 (2d Cir. April 30, 2019) (unpublished):   SUMMARY ORDER Appellant 7 West 57th Street Realty Company, LLC appeals from the March 20, 2018, judgment of the United States District Court for the Southern District of New York (Gardephe, < ...
7 West 57th Street Realty Co., LLC v. Citigroup, Inc., 2019 WL 1914278 (2d Cir. April 30, 2019) (unpublished):   SUMMARY ORDER Appellant 7 West 57th Street Realty Company, LLC appeals from the March 20, 2018, judgment of the United States…
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Sanctions: Under R. 11, Court Need Only Assess Objective Reasonableness, Needn’t Assess Fraud Just Because It Is Claimed — Party May Hold Unreasonable Belief in Good Faith (No IHP) — Lack of Dilatoriness Supports Denial of §1927 Sanctions

Rowe v. Gary, 2019 U.S. App. LEXIS 13850, 2019 WL 2059826 (11th Cir. May 9, 2019) (unpublished): PER CURIAM: *1 Maria Sperando, a lawye ...
Rowe v. Gary, 2019 U.S. App. LEXIS 13850, 2019 WL 2059826 (11th Cir. May 9, 2019) (unpublished): PER CURIAM: *1 Maria Sperando, a lawyer proceeding pro se, appeals the district court’s order granting in part and denying in…
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Federal, Not State, Sanctions Law Applies in Fed. Court — Neither R. 11, 26(g), or 37, or §1927 Applied — No §1927 Sanctions on Client — Fed. R. Civ. P. Don’t Require Party Opposing 12(c) Motion to Attach Documents to Its Opposition

Cooke v. Jackson Nat'l Life Ins. Co., 2019 U.S. App. LEXIS 9002, 2019 WL 1348291 (7th Cir. Mar. 26, 2019): In this suit under the diversity jurisdi ...
Cooke v. Jackson Nat'l Life Ins. Co., 2019 U.S. App. LEXIS 9002, 2019 WL 1348291 (7th Cir. Mar. 26, 2019): In this suit under the diversity jurisdiction, a district court ordered Jackson National Life Insurance to [*2]  pay about …
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Sanctions: Vexatious Litigant Injunctions — Sixth Circuit Adopts 4-Part Test of Ninth Circuit

Clemons v. Dewine, 2019 U.S. App. LEXIS 13271 (6th Cir. May 1, 2019) (unpublished): ORDER Cornelius Clemons, a pro se Ohio resident, appeals the ...
Clemons v. Dewine, 2019 U.S. App. LEXIS 13271 (6th Cir. May 1, 2019) (unpublished): ORDER Cornelius Clemons, a pro se Ohio resident, appeals the district court's sua sponte dismissal of his civil rights action under 28 U.S.C. § 1915(e)(2)(B).…
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Spousal Privileges — (1) Adverse Spousal Testimony Priv. Invokable Only by Witness; Preferred Procedure Delineated — (2) Marital Communications Priv.: Invokable by Either; 3 Prongs; Inapplicable to Commc’ns re Joint Illegal Activity

United States v. Jackson, 2019 U.S. App. LEXIS 9807, 2019 WL 1501539 (6th Cir. April 3, 2019): A jury found Darries Jackson guilty of two counts of possessing ...
United States v. Jackson, 2019 U.S. App. LEXIS 9807, 2019 WL 1501539 (6th Cir. April 3, 2019): A jury found Darries Jackson guilty of two counts of possessing ammunition as a felon. Deciding that Jackson's prior convictions qualified as…
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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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