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 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Ferguson v. Comm’r of Tax & Fin., 2018 WL 3098870 (2d Cir. June 25, 2018) (unpublished): *1 Appellant Jeremiah Ferguson, proceeding pro se, appeals from a May 15, 2017 judgment of the United States District Court for the Western District of New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Ferguson v. Comm’r of Tax & Fin., 2018 WL 3098870 (2d Cir. June 25, 2018) (unpublished): *1 Appellant Jeremiah Ferguson, proceeding pro se, appeals from a May 15, 2017 judgment of the United States District Court for the Western District…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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RICO: § 1962(b) Standing Requires Injury from Defendant’s Acquisition & Maintenance in Enterprise — Under § 1962(c), Defendant Cannot Be Enterprise

Royal Farms, Inc. v. Global Tropical Fresh Fruit Corp., 2006 WL 8437472 (E.D.N.Y. Feb. 14, 2006): *1 Royal Farms, Inc. (Royal), owns and operates a retail chain of supermarkets in the New York metropolitan area. Global Fresh Fruit Corporation (Global), is a supplier of fruit with offices located in Brooklyn, New York. ...
Royal Farms, Inc. v. Global Tropical Fresh Fruit Corp., 2006 WL 8437472 (E.D.N.Y. Feb. 14, 2006): *1 Royal Farms, Inc. (Royal), owns and operates a retail chain of supermarkets in the New York metropolitan area. Global Fresh Fruit Corporation (Global),…
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RICO: Generalized Allegations of Conspiracy to Defraud Insufficient to State Claim under §1962(c), §1962(d), or Rule 9(b)

McZeal v. JPMorgan Chase Bank, N.A., 2018 WL 2425383 (9th Cir. May 30, 2018) (unpublished): *1 Al McZeal and other plaintiffs appeal pro se from the district court’s dismissal of their action asserting claims based on alleged abuses in the mortgage industry. We have jurisdiction under
McZeal v. JPMorgan Chase Bank, N.A., 2018 WL 2425383 (9th Cir. May 30, 2018) (unpublished): *1 Al McZeal and other plaintiffs appeal pro se from the district court’s dismissal of their action asserting claims based on alleged abuses in the…
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Sanctions: Dismissal Rev’d Absent Findings of (1) Pattern of Delay & (2) Lesser Sanctions Insufficient — Settlement Agreement: Court Retains Jurisdiction to Enforce If It’s Reached before Dismissal by Court — Reassigning Judge = Severe Reprimand

Szanto v. Bistritz, 2018 U.S. App. LEXIS 20782 (11th Cir. July 26, 2018) (unpublished): PER CURIAM: Plaintiff Peter Szanto, proceeding pro se, appeals the district court's sua sponte d ...
Szanto v. Bistritz, 2018 U.S. App. LEXIS 20782 (11th Cir. July 26, 2018) (unpublished): PER CURIAM: Plaintiff Peter Szanto, proceeding pro se, appeals the district court's sua sponte dismissal with prejudice of his complaint against Defendant Joseph Bistritz.…
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Inherent Power Sanction Requires Explicit Finding of Conduct Tantamount to Bad Faith — Court Has Ancillary Enforcement Jurisdiction to Issue Post-Judgment Injunctive Relief When Facing Real Risk Judgment Debtor May Secrete or Dissipate Funds

Smagin v. Yegiazaryan, 2018 WL 3627646 (9th Cir July 31, 2018) (amended opinion; unpublished) (amending the opinion excepted in our post of June 11, 2018): AMENDED MEMORANDUM* In an arbitration between Vitaly Smagin and Ashot Yegiazaryan, the London Court of International Arbitration awarded Smagin about $72 million ...
Smagin v. Yegiazaryan, 2018 WL 3627646 (9th Cir July 31, 2018) (amended opinion; unpublished) (amending the opinion excepted in our post of June 11, 2018): AMENDED MEMORANDUM* In an arbitration between Vitaly Smagin and Ashot Yegiazaryan, the London Court of…
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R. 11, §1927, Inherent Power Sanctions: Bad Faith = Knowingly or Recklessly Pursuing Frivolous Claim — Post-Sanctions Reversal of Case on Which Sanctions Based Shows Claim Wasn’t Frivolous, Even Though Precluded under Then-Existing Law

Silva v. Pro Transp., 2018 U.S. App. LEXIS 22258 (11th Cir. Aug. 10, 2018): PER CURIAM: Plaintiff Juan Antonio Silva appeals a district court order assessing sanctions against hi ...
Silva v. Pro Transp., 2018 U.S. App. LEXIS 22258 (11th Cir. Aug. 10, 2018): PER CURIAM: Plaintiff Juan Antonio Silva appeals a district court order assessing sanctions against him and his attorneys. Silva sued his employer, Pro Transport, Inc.,…
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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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