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

Sanctions — Due Process Reviewed De Novo — Verbal Warning One Month Before Sanctions Ordered Gave Target Sufficient Opportunity to File a Brief, Be Heard

Pooshs v. Philip Morris USA, Inc., 2018 WL 6015923 (9th Cir. Nov. 16, 2018): MEMORANDUM* Plaintiff Nikki Pooshs’s counsel, Appellant Gilbert L. Purcell appeals from the district judge’s March 7, 2016 Order Imposing Sanctions on Plaintiff’s Counsel for Misconduct During Trial (“Sanctions Order”). The sole i ...
Pooshs v. Philip Morris USA, Inc., 2018 WL 6015923 (9th Cir. Nov. 16, 2018): MEMORANDUM* Plaintiff Nikki Pooshs’s counsel, Appellant Gilbert L. Purcell appeals from the district judge’s March 7, 2016 Order Imposing Sanctions on Plaintiff’s Counsel for Misconduct During…
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RICO Extraterritoriality: Injury to Tangible Property Is Felt Where Property Is — Factors for Setting Locus of Intangible Injury — Injury to Judgment Is Intangible, Felt Where Plaintiff Is — Can’t Incorporate D. Ct. Brief on Appeal: Violates Word

Cevdet Aksut Ve Ogullari Koll.Sti v. Cavusoglu, 2018 WL 6016549 (3d Cir. Nov. 16, 2018) (unpublished): *1 Plaintiff Cevdet Aksut Ve Ogullari Koll.Sti (“Cevdet”) appeals: (1) the District Court’s orders (a) dismissing its Racketeer Influenced and Corrupt Organizations Act (“RICO”) claims and (b) granting Defendants’ motions ...
Cevdet Aksut Ve Ogullari Koll.Sti v. Cavusoglu, 2018 WL 6016549 (3d Cir. Nov. 16, 2018) (unpublished): *1 Plaintiff Cevdet Aksut Ve Ogullari Koll.Sti (“Cevdet”) appeals: (1) the District Court’s orders (a) dismissing its Racketeer Influenced and Corrupt Organizations Act (“RICO”)…
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Sanctions — No FRAP 38 Sanctions Where Law/Facts Complex, But § 1927 Awarded against Prevailing Attorney for Misrepresentations Not Accompanied by Overt Signs of Bad Faith But Nonetheless Amounting to A Misleadingly Selective Reading of the Record

Mys v. Mich. Dep't of State Police, 2018 U.S. App. LEXIS 14311, 2018 WL 2448093 (6th Cir. May 31, 2018): In an opinion filed on March 28, 2018, we affirmed a jury's award of $350,000 in favor of ...
Mys v. Mich. Dep't of State Police, 2018 U.S. App. LEXIS 14311, 2018 WL 2448093 (6th Cir. May 31, 2018): In an opinion filed on March 28, 2018, we affirmed a jury's award of $350,000 in favor of Linda…
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RICO: “Allegations of Frivolous, Fraudulent or Baseless Litigation Activities — Without More — Cannot Constitute a Predicate Act” (Good Quote)

Weaver v. Boriskin, 2018 WL 4829968 (2d Cir. Oct. 4, 2018) (unpublished): Appellant Everette Weaver, pro se, sued CitiMortgage, Inc. and others for violations of the Fair Debt Collection Practices Act (“FDCPA”), Racketeer Influenced and Corrupt Organizations Act (“RICO”), and state la ...
Weaver v. Boriskin, 2018 WL 4829968 (2d Cir. Oct. 4, 2018) (unpublished): Appellant Everette Weaver, pro se, sued CitiMortgage, Inc. and others for violations of the Fair Debt Collection Practices Act (“FDCPA”), Racketeer Influenced and Corrupt Organizations Act (“RICO…
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§ 1927 Sanctions — Maintaining a Clearly Time-Barred Lawsuit Warrants Sanctions from Time Opponent Called Offender’s Attention to The Time Bar — Magistrate Judges: 1927, Like Rule 11, Sanctions Are Dispositive (Cf. 54(d))

Carter v. Hickory Healthcare, 2018 U.S. App. LEXIS 27589, 2018 WL 4627022 (6th Cir Sept. 27, 2018): [**1] After Hickory Healthcare fired Styla Carter f ...
Carter v. Hickory Healthcare, 2018 U.S. App. LEXIS 27589, 2018 WL 4627022 (6th Cir Sept. 27, 2018): [**1] After Hickory Healthcare fired Styla Carter from her job as a nursing assistant, she sued the company for discrimination. The district…
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SLUSA: Must Misrepresentation Be an Element of the State Law Claim to Trigger SLUSA? — Multi-Way Circuit Split (See Dissenting Opinion)

Northstar Fin. Advisors v. Schwab Invs., 2018 U.S. App. LEXIS 26095 (9th Cir. Sept. 14, 2018): In this appeal, we consider whether the Securities Litigation Uniform Standards Act (" ...
Northstar Fin. Advisors v. Schwab Invs., 2018 U.S. App. LEXIS 26095 (9th Cir. Sept. 14, 2018): In this appeal, we consider whether the Securities Litigation Uniform Standards Act ("SLUSA") precludes class claims brought under state law by Northstar Financial…
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Experts: “Daubert Is Meant to Protect Juries” — In Bench Trial, “Gatekeeper Is Keeping Gate Only for Himself” (Good Quotes) — No Need for Pretrial Hearing, Can Exclude Post-Trial — Fingerprint Analysis Generally Accepted

United States v. Flores, 901 F.3d 1150 (9th Cir. Aug. 28, 2018): Edwin Flores, a native and citizen of Mexico, appeals his conviction for attempting to reenter the United States after b ...
United States v. Flores, 901 F.3d 1150 (9th Cir. Aug. 28, 2018): Edwin Flores, a native and citizen of Mexico, appeals his conviction for attempting to reenter the United States after being deported in violation of 8 U.S.C. §…
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Absent Amendment, Allegation in Complaint = Binding Judicial Admission and Cannot Be Controverted on Appeal

Haynes v. Ind. Univ., 2018 U.S. App. LEXIS 25022 (7th Cir. Sept. 4, 2018): Ray Haynes was employed as an assistant professor in the Department of Education at Indiana University. At the ...
Haynes v. Ind. Univ., 2018 U.S. App. LEXIS 25022 (7th Cir. Sept. 4, 2018): Ray Haynes was employed as an assistant professor in the Department of Education at Indiana University. At the end of his six-year probationary contract, he…
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Unconscionability of Arbitration Clause Determine by State Law — Unilateral Right to Choose Arbitration Provider Is Substantively Unconscionable, But Prevailing Party Fees and Choice of Forum Are Not

Beltran v. AuPairCare, Inc., 2018 WL 5571319 (10th Cir. Oct. 30, 2018): *1 Au pairs and former au pairs filed a class action lawsuit against AuPairCare, Inc. (“APC”) and other au pair sponsoring companies in federal district court alleging violations of antitrust laws, the Racketeer Influenced and Corrupt Organiz ...
Beltran v. AuPairCare, Inc., 2018 WL 5571319 (10th Cir. Oct. 30, 2018): *1 Au pairs and former au pairs filed a class action lawsuit against AuPairCare, Inc. (“APC”) and other au pair sponsoring companies in federal district court alleging violations…
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Rule 37(e) Electronic Spoliation: If Court Accepts Plaintiff’s Version of Missing Emails But Finds Def/Spoliator Still Entitled to Summary Judgment, No Further Sanction Required — Intent to Destroy Not Found by Court (Jury Issue? Relev.?)

Barbera v. Pearson Educ., Inc., 2018 WL 4939772 (7th Cir. Oct. 12, 2018): *1 Vicki Barbera claims she did not get the same chance to resign with severance pay that three men got. She sued her former employer, Pearson Education, Inc. (“Pearson”) for Title VII sex discrimination and other claims. She also sa ...
Barbera v. Pearson Educ., Inc., 2018 WL 4939772 (7th Cir. Oct. 12, 2018): *1 Vicki Barbera claims she did not get the same chance to resign with severance pay that three men got. She sued her former employer, Pearson Education,…
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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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