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

Inherent Power Sanctions & Arbitration: Court May Not Enter Default Judgment against Party That Moved to Compel Arb. & Then Refused to Pay Arb. Fees without Inquiring as to Ability to Pay — But, If Party Was Able to Pay Yet Refused, Default May Be Apt

Hernandez v. Acosta Tractors, Inc., 2018 U.S. App. LEXIS 22068, 2018 WL 3761126 (11th Cir. Aug. 8, 2018): This case asks us to consider whether a District Court can properly enter a default judgment b ...
Hernandez v. Acosta Tractors, Inc., 2018 U.S. App. LEXIS 22068, 2018 WL 3761126 (11th Cir. Aug. 8, 2018): This case asks us to consider whether a District Court can properly enter a default judgment based on a party's failure …
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Plaintiff Has Right to Withdraw Rule 41(a)(2) Motion to Dismiss If It Does Not Wish to Acquiesce to Terms Set by Court for Granting the Motion — Open Question: Are Some Conditions So Minimal There Are Exceptions to This Rule?

Paysys Int'l, Inc. v. Atos IT Servs. Ltd., 2018 U.S. App. LEXIS 23067, 2018 WL 3965723 (2d Cir. Aug. 20, 2018): Plaintiff-appellant Paysys International [*2]  ("Paysy ...
Paysys Int'l, Inc. v. Atos IT Servs. Ltd., 2018 U.S. App. LEXIS 23067, 2018 WL 3965723 (2d Cir. Aug. 20, 2018): Plaintiff-appellant Paysys International [*2]  ("Paysys") moved to voluntarily dismiss its case with prejudice pursuant to Rule 41(a)(2) …
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Removal: Forum Defendant May Remove at Any Time Before S/he Is “Properly Joined and Served” within § 1441(b)(2) (3d Circuit) — Matter of First Impression in Courts of Appeals

Encompass Ins. Co. v. Stone Mansion Rest. Inc., 2018 U.S. App. LEXIS 23576 (3d Cir. Aug. 22, 2018): This appeal, which presents issues of statutory interpretation, stems from a tragic ...
Encompass Ins. Co. v. Stone Mansion Rest. Inc., 2018 U.S. App. LEXIS 23576 (3d Cir. Aug. 22, 2018): This appeal, which presents issues of statutory interpretation, stems from a tragic automobile crash that killed the intoxicated driver and seriously…
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RICO: No Proximate Cause Alleged by Retailers Claiming Lost Sales Due to Smuggling — Decision Not to Buy ≠ Predicate Act — Intention, Foreseeability Irrelevant (Good Quotes) — Wire Fraud: 3 Factors

Empire Merchs., LLC v. Reliable Churchill LLLP, 902 F.3d 132 (2d Cir. 2018); This is a case about proximate cause under the
Empire Merchs., LLC v. Reliable Churchill LLLP, 902 F.3d 132 (2d Cir. 2018); This is a case about proximate cause under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq. Plaintiff-Appellant Empire …
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Arbitration: Court Uses Look-Through (Not Well-Pleaded Complaint) Approach to Decide Federal Question Jurisdiction over Motion to Compel — Circuit Split as to Whether That Approach Applies to Petition to Confirm, Vacate or Modify

HealthSpring Life & Health Ins. Co. v. Tex. Health Mgmt. LLC,  , ,8 U.S. Dist. LEXIS 105467, 2018 WL 3105655 (E.D. Tex. June 25, 2018): Pending before the Court is Plaintiff HealthSpring Life ...
HealthSpring Life & Health Ins. Co. v. Tex. Health Mgmt. LLC,  , ,8 U.S. Dist. LEXIS 105467, 2018 WL 3105655 (E.D. Tex. June 25, 2018): Pending before the Court is Plaintiff HealthSpring Life & Health Insurance Company, Inc.'s ("HealthSpring")…
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Rule 37(e) Sanctions: Adverse Inference Instruction Requires Intentional Spoliation — Negligence Not Enough

Auer v. City of Minot, 2018 U.S. App. LEXIS 19945 (8th Cir. July 19, 2018): This is the second of what will be at least three decisions from this court arising out of Colleen Auer's one-mo ...
Auer v. City of Minot, 2018 U.S. App. LEXIS 19945 (8th Cir. July 19, 2018): This is the second of what will be at least three decisions from this court arising out of Colleen Auer's one-month stint as city…
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Rule 11 Sanctions Appropriate for Repeated Filing of Same Meritless Claim — Vexatious Litigant Injunctions: Factors (Second Circuit)

Ferguson v. Comm’r of Tax & Fin., 2018 WL 3098870 (2d Cir. June 25, 2018) (unpublished): *1 Appellant Jeremiah Ferguson, proceeding pro se, appeals from a May 15, 2017 judgment of the United States District Court for the Western District of New York (Siragusa, J.). Ferguson sued the New York State ...
Ferguson v. Comm’r of Tax & Fin., 2018 WL 3098870 (2d Cir. June 25, 2018) (unpublished): *1 Appellant Jeremiah Ferguson, proceeding pro se, appeals from a May 15, 2017 judgment of the United States District Court for the Western District…
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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 liti ...
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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Inherent Power Sanctions: Jury Verdict Reversed — Ignoring In Limine, Not Prepping Wits, Client Changes in Testimont — No Need to Find Prejudice — Client Saddled with Lawyer — Goodyear Inapt — Less Due Process If Conduct before Judge

Fuery v. City of Chicago, 2018 WL 3853742 (7th Cir. Aug. 14, 2018): *1 After a contentious trial, the district court, after assessing the plaintiffs’ contumacious conduct, asserted its inherent authority to set aside a jury verdict in favor of one plaintiff and entered judgment for the defendants on all clai ...
Fuery v. City of Chicago, 2018 WL 3853742 (7th Cir. Aug. 14, 2018): *1 After a contentious trial, the district court, after assessing the plaintiffs’ contumacious conduct, asserted its inherent authority to set aside a jury verdict in favor of …
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Wayback Machine: Testimony from Internet Archive Office Manager As to How It Captures & Preserves Screenshots, & Comparing Exhibits to Images Known to Be Accurate = Sufficient Authentication (2d, 3d Cirs.)

United States v. Gasperini, 2018 U.S. App. LEXIS 17999 (2d Cir. July 2, 2018): Fabio Gasperini was convicted by a jury in the United States District Court for the Eastern District of N ...
United States v. Gasperini, 2018 U.S. App. LEXIS 17999 (2d Cir. July 2, 2018): Fabio Gasperini was convicted by a jury in the United States District Court for the Eastern District of New York (Nicholas G. Garaufis, Judge) of …
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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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