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 11: “Later Advocating” Imposes Continuing Duty to Correct or Withdraw — Appeals: FRAP 38 & 1927 Sanctions for Advancing Factual / Legal Arguments Only in Reply Brief & Seeking Stay on Appeal without First Seeking It from District Court

Galin v. Hamada, 2018 U.S. App. LEXIS 28091 (2d Cir. Oct. 4, 2018): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the ...
Galin v. Hamada, 2018 U.S. App. LEXIS 28091 (2d Cir. Oct. 4, 2018): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Plaintiff-appellant Reed Galin and his counsel,…
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FRAP 38, 1927 & Inherent Power Sanctions — Revealing Confidential Discussions with Opposing Counsel, Mediator from Court-Ordered Mediation, Violating Local Circuit Rule, Is Sanctionable—Vaguely-Referenced Docs Integral to Complaint OK on 12(b)(6)

Cortes v. 21st Century Fox Am., 2018 U.S. App. LEXIS 27759, 2018 WL 4694181 (2d Cir. Oct. 1, 2018) (unpublished): *1 UPON DUE CONSIDERATION WHEREOF, IT IS HEREB ...
Cortes v. 21st Century Fox Am., 2018 U.S. App. LEXIS 27759, 2018 WL 4694181 (2d Cir. Oct. 1, 2018) (unpublished): *1 UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on January 11,…
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Inherent Power Sanctions: Threatening Witnesses on Facebook If They Cooperate with Adversary Amounts to Witness Tampering, Is Properly Sanctioned by Award of Attorney’s Fees for Time Spent on Sanctions Issue

Emerson v. Dart, 2018 WL 3853761 (7th Cir. Aug. 14, 2018): *1 Paula Emerson is a correctional officer on leave from the Cook County Department of Corrections. She alleges that two County employees unlawfully discriminated against her during her tenure at one of the County’s detention facilities. While li ...
Emerson v. Dart, 2018 WL 3853761 (7th Cir. Aug. 14, 2018): *1 Paula Emerson is a correctional officer on leave from the Cook County Department of Corrections. She alleges that two County employees unlawfully discriminated against her during her tenure…
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RICO Extraterritoriality — Where Is Intangible Injury Felt? — Circuit Split — 3d Circuit Adopts Multifactor Approach, Rejects 7th Circuit’s Bright-Line Rule It Is Felt at Plaintiff’s Residence — Difficulty of Cyberspace Injury Issue Noted

Humphrey v. Glaxosmithkline Plc, 2018 U.S. App. LEXIS 27443 (3d Cir. Sept. 26, 2018):
Humphrey v. Glaxosmithkline Plc, 2018 U.S. App. LEXIS 27443 (3d Cir. Sept. 26, 2018): Section 1964(c) of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-1968, creates a private right of action for a…
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Deposition of Expert > 100 Miles from Courthouse Taken by Retaining Party Not Hearsay When Offered by Retaining Party — Fed. R. Civ. P. 32(a)(4)(B) Is Independent Hearsay Exception — Unavailability Irrelevant

Fletcher v. Tomlinson, 895 F.3d 1010 (8th Cir. 2018): St. Louis Police Department (SLPD) Officers Nicholas Martorano and John Moton appeal from the district court's
Fletcher v. Tomlinson, 895 F.3d 1010 (8th Cir. 2018): St. Louis Police Department (SLPD) Officers Nicholas Martorano and John Moton appeal from the district court's1 judgment, entered upon a jury verdict, finding that  [*1013]  they used excessive force …
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RICO: Filed-Rate Doctrine Applies to Rates Set by State Agencies — Two Rationales of Doctrine: Non-Justiciability & Non-Discrimination — Irrelevant If Plaintiff Is Rate-Payer — Suit Can’t Attack Reasonableness of Rate Or Component of Rate

Patel v. Specialized Loan Serv., LLC, 2018 WL 4559091 (11th Cir. Sept. 24, 2018): *1 When an individual takes out a mortgage, he or she secures the loan with real property. To protect its security interest, lenders usually require borrowers to maintain hazard insurance in an amount that is at least equal to th ...
Patel v. Specialized Loan Serv., LLC, 2018 WL 4559091 (11th Cir. Sept. 24, 2018): *1 When an individual takes out a mortgage, he or she secures the loan with real property. To protect its security interest, lenders usually require borrowers …
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Inherent Power Sanctions for Extrajudicial Misconduct — Using State Court to Delay Federal Litigation + Filing Groundless Police Report against Defense Counsel — Also Fabricating Evidence + Making False Statements to Federal Court

Deutsch v. Phil’s Icehouse, Inc., 2018 WL 1513584 (5th Cir. Mar. 7, 2018) (affirming the decision posted on 12/14/16 on this blog detailing the misconduct): PER CURIAM:**1 Plaintiff-Appellant Jon Deutsch and his attorney, Omar Rosales, appeal from a sanctions order against Rosales in the form of an ...
Deutsch v. Phil’s Icehouse, Inc., 2018 WL 1513584 (5th Cir. Mar. 7, 2018) (affirming the decision posted on 12/14/16 on this blog detailing the misconduct): PER CURIAM:**1 Plaintiff-Appellant Jon Deutsch and his attorney, Omar Rosales, appeal from a sanctions…
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Inability to Pay Irrelevant under RICO §1964(c) & R. 37(b) — Due Process: Lawyers Had Notice Though Motion Only Mentioned Firm — Goodyear Requires But-For, Not Prox. Cause, Incl. Fees on Fees—Reconsideration (Good Quote)—Interest on SXS

KCI USA, Inc. v. Healthcare Essentials, Inc., 2018 U.S. Dist. LEXIS 160034 (N. ...
KCI USA, Inc. v. Healthcare Essentials, Inc., 2018 U.S. Dist. LEXIS 160034 (N.D. Ohio Sept. 19, 2018): Pending before the Court are KCI's motion for attorney fees and costs (ECF No. 367) and individual Cavitch Attorneys Komlavi Atsou, Michael…
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Where Court-Ordered Arbitration Is Terminated Pursuant to Arb. Body’s Rules for Non-Payment of Arb. Fees by Party That Lacks Funds to Pay Them, Arb. Has “Been Had” Per FAA §3 and Stay Should Be Lifted So Case May Proceed in Court — No Sanctions

Tillman v. Tillman, 825 F.3d 1069 (1st Cir. 2016): When two parties have entered into a valid arbitration agreement, the Federal Arbitration Act requires federal courts to stay lawsuit ...
Tillman v. Tillman, 825 F.3d 1069 (1st Cir. 2016): When two parties have entered into a valid arbitration agreement, the Federal Arbitration Act requires federal courts to stay lawsuits between them until the arbitration is resolved and then to …
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Assertion of Attorney-Client Privilege at Depositions of Lawyer and Client Bars Subsequent Attempt to Assert Advice of Counsel Defense Absent Making Deponents Available, or Deposing Them, in Timely Fashion — Sword/Shield Quote

Energy Heating, LLC v. Heat On-The-Fly, LLC, 889 F.3d 1291 (Fed. Cir. 2018): Appellants Heat On-The-Fly, LLC and Super Heaters North Dakota, LLC (together, "HOTF")
Energy Heating, LLC v. Heat On-The-Fly, LLC, 889 F.3d 1291 (Fed. Cir. 2018): Appellants Heat On-The-Fly, LLC and Super Heaters North Dakota, LLC (together, "HOTF")1 appeal the district court's judgment of inequitable conduct, summary judgment of obviousness, denial…
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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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