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(c)(1) Sua Sponte Sanctions — Prior Issuance of Order to Show Cause Is Mandatory — Sending Email Identifying Court’s Concerns Not Enough, Requires Vacatur

Przybysz v. City of Toledo, 2018 U.S. App. LEXIS 23103 (6th Ciur. Aug. 20, 2018): Marcia Przybysz appeals the district court's order awarding summary judgment to Sergeant Karrie Wil ...
Przybysz v. City of Toledo, 2018 U.S. App. LEXIS 23103 (6th Ciur. Aug. 20, 2018): Marcia Przybysz appeals the district court's order awarding summary judgment to Sergeant Karrie Williams, the City of Toledo, and other officers named as defendants,…
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Rule 11: 10th Cir.’s 5-Factor Dismissal Test Applies to All Sanctions — Doubling Down behind Manipulated Email When Shown Original in Safe Harbor Warning = Bad Faith (Good Quotes)—Post-Goodyear, Can Mkt Fees Be Awarded State Atty? [37(e)]

King v. Fleming, 2018 WL 3863326 (10th Cir. Aug. 15, 2018): *1 Facing a motion to dismiss, the appellants attached a materially altered e-mail (described as an “unofficial version”) to an amended complaint. The appellees notified the appellants that the e-mail was inaccurate, but the appellants refused to ...
King v. Fleming, 2018 WL 3863326 (10th Cir. Aug. 15, 2018): *1 Facing a motion to dismiss, the appellants attached a materially altered e-mail (described as an “unofficial version”) to an amended complaint. The appellees notified the appellants that the …
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RICO: Probate Estate, Like Bankruptcy Estate, May Constitute Enterprise — Beneficiary Has Standing to Sue for Pillaging — Multiple Other Important Holdings Summarized Up Front

Summary of holdings: Standing/Ripeness:  “[C]laims for "lost debt" injuries—that is, for damages in the form of an owed, but as-yet-uncollected, amount—are unripe when parallel proceedings to collect the amount owed are ongoing in another forum.”   Standing/Ripeness
Summary of holdings: Standing/Ripeness:  “[C]laims for "lost debt" injuries—that is, for damages in the form of an owed, but as-yet-uncollected, amount—are unripe when parallel proceedings to collect the amount owed are ongoing in another forum.”   Standing/Ripeness;  A RICO …
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Text Authentication: Messages Received with Sender’s Name as Recorded on Recipient’s Phone, Contents Known Only to the Two of Them — Photos of Texts Properly Received in Evidence

Tran v. State, 2018 Ind. App. Unpub. LEXIS 841,  2018 WL 3468554 (Ind. Ct. App. July 19, 2018): Statement of the Case P1 James Tran appeals his convictions of nine counts of child mole ...
Tran v. State, 2018 Ind. App. Unpub. LEXIS 841,  2018 WL 3468554 (Ind. Ct. App. July 19, 2018): Statement of the Case P1 James Tran appeals his convictions of nine counts of child molesting, all as Class A felonies…
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Rule 16(f) Sanctions — $950 Against Counsel for Being 18 Minutes Late to Settlement Conference, Late Filing Mediation Memo ( Lacking Some Info) — Sanction Against Client Reversed: No Evidence It “Was Responsible for Or Even Knew About” Issues

Apelian v. Allstate Ins. Co., 2018 WL 3030692 (9th Cir. June 19, 2018): MEMORANDUM*   *1 Appellants Allstate Insurance Company and its trial counsel appeal a magistrate judge’s sanctions award of attorney’s fees of $12,500 plus an additional $500 against Allstate, ...
Apelian v. Allstate Ins. Co., 2018 WL 3030692 (9th Cir. June 19, 2018): MEMORANDUM*   *1 Appellants Allstate Insurance Company and its trial counsel appeal a magistrate judge’s sanctions award of attorney’s fees of $12,500 plus an additional $500 against Allstate, …
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Although 12(f) Motion to Strike Is Disfavored As Drastic Remedy, It Is Appropriately Granted When Post-Appeal Pleading Re-Asserts Claims Or Defenses That Were Resolved on Appeal — Such Allegations Are Impertinent

United States v. Ancient Coin Collectors Guild, 2018 WL 3734281 (4th Cir. Aug. 7, 2018): *1 This appeal is pursued by the Ancient Coin Collectors Guild (the “Guild”) from the judgment in the District of Maryland ordering forfeiture to the United States of seven ancient Cypriot coins and eight ancient Chine ...
United States v. Ancient Coin Collectors Guild, 2018 WL 3734281 (4th Cir. Aug. 7, 2018): *1 This appeal is pursued by the Ancient Coin Collectors Guild (the “Guild”) from the judgment in the District of Maryland ordering forfeiture to the …
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Rule 37 Sanctions — Default Judgment Apt for Defendants’ “Pattern of Obstructionism That Prevented [Plaintiff] from Effectively Litigating Its Claims” — Recidivism: Similar Misconduct in Other Cases Noted as Supporting Sanction

Arrowhead Capital Fin., Ltd. v. Seven Arts Entm't, Inc., 2018 U.S. App. LEXIS 17956, 2018 WL 3202765 (2d Cir. June 29, 2018): SUMMARY ORDER UPON DUE ...
Arrowhead Capital Fin., Ltd. v. Seven Arts Entm't, Inc., 2018 U.S. App. LEXIS 17956, 2018 WL 3202765 (2d Cir. June 29, 2018): SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of…
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Facebook Photo — Authentication of Photo Does Not Require Authentication of Facebook Page as Belonging to Anyone Depicted in Photograph

State v. Briggs, 2018 Tenn. Crim. App. LEXIS 576 (Tenn. Ct. App. Aug. 2, 2018): The Defendant's convictions relate to the September 7, 2014 homicide of Kenneth Koster in a t ...
State v. Briggs, 2018 Tenn. Crim. App. LEXIS 576 (Tenn. Ct. App. Aug. 2, 2018): The Defendant's convictions relate to the September 7, 2014 homicide of Kenneth Koster in a tool shed in Campbell County. The Defendant and Brad …
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Filing Unconditional Dismissal Stipulation under Rule 41 Strips Court of Subject Matter Jurisdiction Absent Express Contingency or Reservation of Jurisdiction — Motion to Rescind Settlement Due to Fraud Must Be Sought Per R. 60(b) — No Ancillary Jd

Nat'l City Golf Fin. v. Scott, 2018 U.S. App. LEXIS 22187 (5th Cir. Aug. 9, 2018): This appeal raises questions of judicial procedure and power arising from a lawsuit about golf car ...
Nat'l City Golf Fin. v. Scott, 2018 U.S. App. LEXIS 22187 (5th Cir. Aug. 9, 2018): This appeal raises questions of judicial procedure and power arising from a lawsuit about golf carts. After a year of federal litigation, the …
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Chevron Deference: Can an Agency Advance an Interpretation of a Statute for the First Time in Litigation and Demand Deference for Its View? — Circuit Split

E.I. Dupont de Nemours & Co. v. Smiley, 138 S. Ct. 2563 (2018) (Gorsuch, J., concurring): Statement of Justice Gorsuch, with whom The Chief Justice and Justice Thomas join, respecting denial o ...
E.I. Dupont de Nemours & Co. v. Smiley, 138 S. Ct. 2563 (2018) (Gorsuch, J., concurring): Statement of Justice Gorsuch, with whom The Chief Justice and Justice Thomas join, respecting denial of certiorari. Can an agency advance an interpretation …
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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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