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

RICO: Mere Existence of a Contract Between a Party and a Vendor Is Insufficient to Establish a Common Purpose, and Thus State an Enterprise, within RICO

Ellis v. JPMorgan Chase & Co., N.A., 2018 WL 4090102 (9th Cir. Aug. 28, 2018) (unpublished): MEMORANDUM** *1 Appellants Diana Ellis, James Schillinger, and Ronald Lazar appeal from three district court orders, entered in a case where they were comp ...
Ellis v. JPMorgan Chase & Co., N.A., 2018 WL 4090102 (9th Cir. Aug. 28, 2018) (unpublished): MEMORANDUM** *1 Appellants Diana Ellis, James Schillinger, and Ronald Lazar appeal from three district court orders, entered in a case where they were …
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Sanctions — Electronic Spoliation: Rule 37(e) Forecloses Reliance on Inherent Power — Sanctions Properly Denied Where Spoliations Unlikely and Any Gap in Production Relatively Insignificant

MEMORANDUM* Newberry v. Cty. of San Bernardino, 2018 U.S. App. LEXIS 26420, 2018 WL 4450831 (9th Cir. Sept. 18, 2018) (unpublished):
MEMORANDUM* Newberry v. Cty. of San Bernardino, 2018 U.S. App. LEXIS 26420, 2018 WL 4450831 (9th Cir. Sept. 18, 2018) (unpublished): The plaintiffs-appellants in this case are a subset of residents at a San Bernardino apartment complex who …
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RICO: Intracorporate Conspiracy Doctrine Inapplicable to RICO Conspiracy in 11th Cir. (Cir. Split) — Incontestability Clause Doesn’t Bar RICO Claim over Fraudulently Procured STOLI Policies (RICO Dams. Won’t Void Policies)–Waiver of Choice of Law

Sun Life Assur. Co. of Can. v. Imperial Premium Fin., LLC, 2018 U.S. App. LEXIS 26461, 2018 WL 4443054 (11th Cir. Sept. 18, 2018): These [*3]  two appeals arise from dueling l ...
Sun Life Assur. Co. of Can. v. Imperial Premium Fin., LLC, 2018 U.S. App. LEXIS 26461, 2018 WL 4443054 (11th Cir. Sept. 18, 2018): These [*3]  two appeals arise from dueling lawsuits pitting Sun Life Assurance Company of Canada …
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Sanctions — Court of Federal Claims Has Inherent Power, and Power under Its Rule 11, to Impose Vexatious Litigant Injunction against Recidivist Violator — No Further Motions on Subject Matter Allowed

Evans v. United States, 2018 U.S. App. LEXIS 24496 (Fed. Cir. Aug. 29, 2018): Appellant David O. Evans appeals an order of the U.S. Court of Federal Claims dismissing his claims for military b ...
Evans v. United States, 2018 U.S. App. LEXIS 24496 (Fed. Cir. Aug. 29, 2018): Appellant David O. Evans appeals an order of the U.S. Court of Federal Claims dismissing his claims for military back pay, disability retirement benefits, and…
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Signature Block on Email Containing Name, Job Title, Firm Name & Contact Info Renders Email a Signed Writing for Purposes of the Statute of Fraud — Email Authentication

Meltzer, Lippe, Goldstein & Breitstone, LLP v. Malfetti, 2018 U.S. Dist. LEXIS 167150 (E.D.N.Y. Sept. 27, 2018): Plaintiff Meltzer, Lippe, Goldstein & Brei ...
Meltzer, Lippe, Goldstein & Breitstone, LLP v. Malfetti, 2018 U.S. Dist. LEXIS 167150 (E.D.N.Y. Sept. 27, 2018): Plaintiff Meltzer, Lippe, Goldstein & Breitstone, LLP ("Meltzer Lippe") brought this action in state court against defendant James Malfetti, doing business as …
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Complaint Not Sanctionable under §1927 — Failure to Settle = Client Choice, Not Attributable to Lawyer — No Bad Faith If Venue Proper, Even If Inconvenient — Saying Case “Not Worth Litigating” = Inoffensive Settlement Statement, Not Admission

Gust, Inc. v. Alphacap Ventures, LLC, 2018 U.S. App. LEXIS 27667 (Fed. Cir. Sept. 28, 2018): Movant Gutride Safier LLP ("Gutride"), a law firm representing AlphaCa ...
Gust, Inc. v. Alphacap Ventures, LLC, 2018 U.S. App. LEXIS 27667 (Fed. Cir. Sept. 28, 2018): Movant Gutride Safier LLP ("Gutride"), a law firm representing AlphaCap Ventures, LLC ("AlphaCap") in the district court litigation here, appeals the award of …
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30(b)(6) Testimony = Evidentiary, Not Judicial, Admission; Can Be Explained, Corrected, Supplemented — But Sham Affidavit Rule Applies; Some Tension As to What Can Be Modified & When (Reliance, Etc.)

Snapp v. United Transp. Union, 889 F.3d 1088 (9th Cir. 2018): Plaintiff Danny Snapp brought this action against the United Transportation Union (the "Union") and his former em ...
Snapp v. United Transp. Union, 889 F.3d 1088 (9th Cir. 2018): Plaintiff Danny Snapp brought this action against the United Transportation Union (the "Union") and his former employer, Burlington Northern Santa Fe Railway Company ("BNSF"), alleging a failure to…
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Rule 37(c)(1): If Exclusion=Dismissal, Must Consider Lesser Sanction But No Bad Faith Needed — No Abuse of Discretion If No Request for Lesser Sx — No Meet, Confer Duty Pre-Exclusion — Can Sanction Issue If Non-Disclosure Harmless, Justified?

Vanderberg v. Petco Animal Supplies Stores, 2018 U.S. App. LEXIS 28101 (8th Cir. Oct. 4, 2018): The rules governing litigation in federal courts ensure fair and orderly proceedings free ...
Vanderberg v. Petco Animal Supplies Stores, 2018 U.S. App. LEXIS 28101 (8th Cir. Oct. 4, 2018): The rules governing litigation in federal courts ensure fair and orderly proceedings free from prejudicial surprises. All litigants must disclose the identity of…
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Sanctions: District Court Not Required to State Findings Or Conclusions on Every Sanctions Motion — Or Any Other Motion, under Fed. R. Civ. P. 52(a)(3), Absent Specific Requirement in a Rule

Bd. of Aldermen v. Mississippi, 2018 U.S. App. LEXIS 28032 (5th Cir. Oct. 1, 2018): PER CURIAM:* Underlying this action&# ...
Bd. of Aldermen v. Mississippi, 2018 U.S. App. LEXIS 28032 (5th Cir. Oct. 1, 2018): PER CURIAM:* Underlying this action's being dismissed for lack of standing is the claim by the Board of Aldermen for the Town of…
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RICO: Use of Industry-Standard [Condo / Lending] Form ≠ Mail, Wire Fraud — No Showing of Strong Inference to Defraud, Nor Any Explanation Why Use of the Form Is Fraudulent — Filing of False Documents in Litigation ≠ Predicate Act

Smulley v. FHFA, 2018 WL 4849667 (2d Cir. Oct. 5, 2018): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the district court is AFFIRMED. Appellant Dorothy Smulley, pro se, sued Webster Financial Corporation (“Webster”), JPMorgan Chase ...
Smulley v. FHFA, 2018 WL 4849667 (2d Cir. Oct. 5, 2018): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the district court is AFFIRMED. Appellant Dorothy Smulley, pro se, sued Webster Financial Corporation …
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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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