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: 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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Jury Trial Waiver: Which Party Bears Burden of Proving Knowingness & Voluntariness of Waiver? — Circuit Split

Servicios Comerciales Lamosa, S.A. v. De La Rosa, 2018 U.S. Dist. LEXIS 148905 (N.D. Tex. Aug. 30, 2018): Before [*2]  the court are Plaintiff Revestimientos Porcelan ...
Servicios Comerciales Lamosa, S.A. v. De La Rosa, 2018 U.S. Dist. LEXIS 148905 (N.D. Tex. Aug. 30, 2018): Before [*2]  the court are Plaintiff Revestimientos Porcelanite, S.A. de C.V.'s Motion for Summary Judgment (Doc. 90), filed April 17, 2018;…
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Sanctions for State Court Misconduct in Removed Case: Rule 11 Irrelevant, Whether / If Federal Court Should Apply State Sanctions Rules Is Matter of Dispute — Order to Show Cause Issued As to Why Inherent Power Sanctions Should Not Issue

Wronko v. Martin, 2018 WL 4562462 (D.N.J. Sept. 24, 2018): INTRODUCTION *1 This matter comes before the Court upon three Motions for Rule 11 Sanctions. (ECF Nos. 70, 72, 73.) These Motions are brought by Defendants Michael Baltazar, Borough of Helmetta, Devon Gannon, Helmetta Police Dep ...
Wronko v. Martin, 2018 WL 4562462 (D.N.J. Sept. 24, 2018): INTRODUCTION *1 This matter comes before the Court upon three Motions for Rule 11 Sanctions. (ECF Nos. 70, 72, 73.) These Motions are brought by Defendants Michael Baltazar, Borough of…
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Fourfold Purposes of Rule 37 Sanctions / Single Purpose of § 1927 Sanctions — Depositions: Objection “You Can Answer If You Know” or “Understand” Is Always Improper — Conduct Not OK in Courtroom Not OK at Deposition (Good Quotes)

Hunter v. GEICO Gen. Ins. Co., 2018 WL 4352823 (E.D. La. Sept. 12, 2018): ORDER AND REASONS *1 Before the Court are two related motions, the “Motion for an Order for Sanctions, Attorney Fees, Perjury, and to Reschedule the Depositions and Conduct Them in Chambers” and the “Motion f ...
Hunter v. GEICO Gen. Ins. Co., 2018 WL 4352823 (E.D. La. Sept. 12, 2018): ORDER AND REASONS *1 Before the Court are two related motions, the “Motion for an Order for Sanctions, Attorney Fees, Perjury, and to Reschedule the Depositions…
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Judicial Notice of Internet Evidence: Government Website Contents Are Self-Authenticating

Bingham v. Barnhart, 2018 U.S. Dist. LEXIS 106170 (E.D. Ky. June 26, 2018): Petitioner Randall Dale Bingham has filed a pro se petition for a writ of habeas corpus pursuant to 28 ...
Bingham v. Barnhart, 2018 U.S. Dist. LEXIS 106170 (E.D. Ky. June 26, 2018): Petitioner Randall Dale Bingham has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. [R. 1.] At the…
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Rule 37 Sanctions: Dismissal Is a “Last Resort” But Is Appropriate If Noncompliance Is Due to Willful or Bad Faith Disregard for Discovery Orders (Good Quote)

Taylor v. Bradshaw, 2018 WL 3414344 (11th Cir. July 13, 2018): PER CURIAM: Charlotte Taylor, proceeding pro se, appeals the district court’s entry of judgment in favor of defendants following a jury trial on her claims under
Taylor v. Bradshaw, 2018 WL 3414344 (11th Cir. July 13, 2018): PER CURIAM: Charlotte Taylor, proceeding pro se, appeals the district court’s entry of judgment in favor of defendants following a jury trial on her claims under 42 U.S.C. …
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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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