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

U.S. Courts Have Power under Bankruptcy Code to Pursue Foreign Subsequent Transfers of Fraudulent Conveyance — Neither Presumption against Extraterritoriality Nor International Comity Preclude This

In re Irving H. Picard, Trustee for the Liquidation of Bernard L. Madoff Inv. Secs. LLC, 2019 WL 903978 (2d Cir. Feb. 25, 2019): *1 These eighty-eight consolidated appeals arise from the ongoing fallout of Bernard Madoff’s Ponzi scheme. As alleged, Bernard L. Madoff Investment Securities LLC (“Madoff Securities ...
In re Irving H. Picard, Trustee for the Liquidation of Bernard L. Madoff Inv. Secs. LLC, 2019 WL 903978 (2d Cir. Feb. 25, 2019): *1 These eighty-eight consolidated appeals arise from the ongoing fallout of Bernard Madoff’s Ponzi scheme. As…
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Email Warning Proprietor of Dangerous Condition ≠ Hearsay If Offered for Notice — Fact Noticed Risk Is Somewhat Different Than Risk at Issue OK — Police Officer’s Alleged History of Excessive Force ≠ Rule 406 Habit or Routine Practice

Sherrod v. Williams, 2019 U.S. Dist. LEXIS 15699 (S.D. Ohio Jan. 31, 2019): This matter is currently before the Court on several motions in limine. Defendants Officer S ...
Sherrod v. Williams, 2019 U.S. Dist. LEXIS 15699 (S.D. Ohio Jan. 31, 2019): This matter is currently before the Court on several motions in limine. Defendants Officer Sean C. Williams, Sergeant David M. Darkow, Chief Dennis Evers and the…
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Inherent Power Sanctions Properly Denied Where Losing Party “Vigorously Litigated” But Not in Bad Faith (Good Quote) — Whether to Hold Evidentiary Hearing on Sanctions Motion, under Rule 43(a), Is Reviewed for Abuse of Discretion

In re Johnson (Gonzalez v. Johnson), 2019 WL 126753 (9th Cir. Jan. 8, 2019) (unpublished): MEMORANDUM** *1 Defendants-Appellants appeal the district court’s affirmance of the bankruptcy court’s denial of their motion for attorneys’ fees. We affirm.
In re Johnson (Gonzalez v. Johnson), 2019 WL 126753 (9th Cir. Jan. 8, 2019) (unpublished): MEMORANDUM** *1 Defendants-Appellants appeal the district court’s affirmance of the bankruptcy court’s denial of their motion for attorneys’ fees. We affirm. 1. Defendants-Appellants contend…
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Appellate Jurisdiction: Rule 37 Monetary Sanctions Unappealable under Cunningham & Too Linked to Merits (+ Reviewable Later) to Fall within Collateral Order Doctrine

Siser N. Am., Inc. v. World Paper, Inc., 2018 U.S. App. LEXIS 33313 (6th Cir. Nov. 27, 2018): Michael Laurence Feinstein, former attorney for Defendants, appeals the district co ...
Siser N. Am., Inc. v. World Paper, Inc., 2018 U.S. App. LEXIS 33313 (6th Cir. Nov. 27, 2018): Michael Laurence Feinstein, former attorney for Defendants, appeals the district court's interlocutory order, ordering him to pay $76,925.53 in sanctions.…
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Statute of Limitations — When a Prior Lawsuit Does, and Does Not, Trigger Inquiry Notice (2d Circuit) — Similarly Situated Plaintiffs in Near Proximity (Co-Tenants) Pressing Essentially the Same Grievance against One of the Same Defendants Is Enough

421-A Tenants Ass’n, Inc. v. 125 Court Street LLC, 2019 WL 317447 (2d Cir. Jan. 23, 2019) (unpublished): *1 Plaintiffs-Appellants 421-A Tenants Association, Inc., Vinetta Scrivo, and Richard Lebed (“the tenants”) appeal from the district court’s decision dismissing their class action complaint for failure to s ...
421-A Tenants Ass’n, Inc. v. 125 Court Street LLC, 2019 WL 317447 (2d Cir. Jan. 23, 2019) (unpublished): *1 Plaintiffs-Appellants 421-A Tenants Association, Inc., Vinetta Scrivo, and Richard Lebed (“the tenants”) appeal from the district court’s decision dismissing their class…
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R. 37 Dismissal Sanction: Fault=Unreasonable Conduct > “Mere Mistake or Slight Error in Judgment” — No Motion to Compel OK If Actual Notice of Risk Given by Adversary — Proportional Sanction ≠ Least — Eventual Compliance Not Nec’ly Enough

Mojapelo v. Nat’l RR Passenger Corp., 2019 WL 193126 (7th Cir. Jan. 15, 2019): ORDER *1 Charles Mojapelo injured his leg while disembarking from a train operated by the National Railroad Passenger Corporation (Amtrak). He sued Amtrak for compensatory and punitive damages on theories of neglig ...
Mojapelo v. Nat’l RR Passenger Corp., 2019 WL 193126 (7th Cir. Jan. 15, 2019): ORDER *1 Charles Mojapelo injured his leg while disembarking from a train operated by the National Railroad Passenger Corporation (Amtrak). He sued Amtrak for compensatory and…
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Are Life Settlements Securities (Investment Contracts) under the Investment Advisers and Securities Acts? — Fact Dependent / Circuit Split

Living Bens. Asset Mgmt., L.L.C. v. Kestrel Aircraft Co. (In re Living Bens. Asset Mgmt., L.L.C.), 2019 U.S. App. LEXIS 5283 (5th Cir. Feb. 22, 2019): Debtor—plaintiff Living Benefits ...
Living Bens. Asset Mgmt., L.L.C. v. Kestrel Aircraft Co. (In re Living Bens. Asset Mgmt., L.L.C.), 2019 U.S. App. LEXIS 5283 (5th Cir. Feb. 22, 2019): Debtor—plaintiff Living Benefits Asset Management, L.L.C., brought this adversary proceeding against Kestrel Aircraft…
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Speedy Trial: Is a Delay of More Than 8 Months between Indictment and Trial Presumptively Prejudicial? (Maybe) — Factors for Assessing Prejudice

United States v. Sterling, 2019 WL 994520 (2d Cir. Mar. 1, 2019) (Unpublished): A jury convicted Alonzo Vernon and Kevin Sterling of (1) participating in a narcotics distribution conspiracy; (2) using, carrying, possessing, brandishing, and discharging firearms during and in relation to the narcotics distribution conspiracy; and (3) p ...
United States v. Sterling, 2019 WL 994520 (2d Cir. Mar. 1, 2019) (Unpublished): A jury convicted Alonzo Vernon and Kevin Sterling of (1) participating in a narcotics distribution conspiracy; (2) using, carrying, possessing, brandishing, and discharging firearms during and in…
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Common Law Immunity Protects State & Local Officials from Federal Civil Claims for Acts Legislative in Form and Substance, Unless Abrogated by Statute — Defeats RICO Claim — Plaintiffs Didn’t Argue RICO Abrogates Immunity (Open Issue)

NRP Holdings LLC v. City of Buffalo, 2019 U.S. App. LEXIS 4866, 2019 WL 692529 (2d Cir. Feb. 20, 2019): We confront here primarily a question of legislative immunity raised by a ...
NRP Holdings LLC v. City of Buffalo, 2019 U.S. App. LEXIS 4866, 2019 WL 692529 (2d Cir. Feb. 20, 2019): We confront here primarily a question of legislative immunity raised by a [*3]  mayor's inaction in the face of…
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Mere Failure to Recite That a Declaration or Affidavit Is Based on Personal Knowledge Doesn’t Render Contents Hearsay If It Is Clear from the Circumstances (Contents, Other Evidence) That It Was

Venezia v. E. Revenue, Inc., 2019 U.S. Dist. LEXIS 21501 (E.D. ...
Venezia v. E. Revenue, Inc., 2019 U.S. Dist. LEXIS 21501 (E.D. Pa. Feb. 11, 2019): : Footnote 2: Plaintiff filed an Objection to Defendant's Submissions    [ECF No. 33 & 34] urging this Court to disregard Mr. Griffin's Declaration…
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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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