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 41(b) Dismissal — Refusal to Respond to Court’s Ultimatum Either to Amend Complaint or Stand by Complaint = Failure to Prosecute, Is Properly Met with Dismissal

Simmonds v. Wells Fargo Bank, N.A., 2018 U.S. App. LEXIS 17230 (9th Cir. June 25, 2018) (unpublished): Amany Simmonds appeals from the district court's order dismissing for failure to pros ...
Simmonds v. Wells Fargo Bank, N.A., 2018 U.S. App. LEXIS 17230 (9th Cir. June 25, 2018) (unpublished): Amany Simmonds appeals from the district court's order dismissing for failure to prosecute her diversity action arising from foreclosure proceedings. We have…
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R. 16(f) / 37(b)(2)(C) Sanctions — Default Requires Willful Misconduct But Not Wrongful Intent — Aggravating Factors Must Outweigh Desire for Merits-Based Decns — Factors (10th Cir.) — Failing to Hire Counsel & Refusing to Appear Pro Se Is Enough

Derma Pen, LLC v. 4EverYoung Limited, 2018 WL 2684216 (10th Cir. June 5, 2018): *1 This case began as a dispute over trademark infringement and counterclaims for breach of contract. The district court detailed much of the procedural history below.1
Derma Pen, LLC v. 4EverYoung Limited, 2018 WL 2684216 (10th Cir. June 5, 2018): *1 This case began as a dispute over trademark infringement and counterclaims for breach of contract. The district court detailed much of the procedural history below.…
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Sanctions/Spoliation — Failure to File Transcript of Sanctions Hearing Precludes Appellate Review of District Court Ruling

Critchfield v. Blazin Wings, 2018 U.S. App. LEXIS 19454 (10th Cir. July 16, 2018) (unpublished): ORDER AND JUDGMENT*
Critchfield v. Blazin Wings, 2018 U.S. App. LEXIS 19454 (10th Cir. July 16, 2018) (unpublished): ORDER AND JUDGMENT* I. INTRODUCTION Roland Critchfield slipped and fell on the wet, soapy bathroom floor of a Buffalo Wild Wings Bar &…
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Rule 15(b)(2) Amendment of Complaint by Implied Consent: “Notice of a Claim Is Defendant’s Entitlement, Not Defendant’s Burden” — Can’t “Superimpose New (Untried) Theory on Evidence Introduced for Other Purposes” (Good Quotes)

In re Fustolo, 2018 U.S. App. LEXIS 19496 (1st Cir. July 16, 2018): Following trial on The Patriot Group, LLC's ("Patriot") adversary complaint requesting denial of the discharge in bankruptcy of ...
In re Fustolo, 2018 U.S. App. LEXIS 19496 (1st Cir. July 16, 2018): Following trial on The Patriot Group, LLC's ("Patriot") adversary complaint requesting denial of the discharge in bankruptcy of Steven Fustolo's ("Fustolo") debt, the bankruptcy court allowed…
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Rule 37(c)(1) Sanctions: Failure to Disclose Corp. Officer Would Give Expert Testimony — Fact Adversary Knew He’d Testify Doesn’t Eliminate Prejudice — Rule 13(a): Counterclaim Is Compulsory Only If It Existed When Complaint Filed

Karum Holdings LLC v. Lowe's Cos., 2018 U.S. App. LEXIS 19269 (7th Cir. July 13, 2018): When Lowe's Companies, Inc. (Lowe's Inc.) expanded its retail home ...
Karum Holdings LLC v. Lowe's Cos., 2018 U.S. App. LEXIS 19269 (7th Cir. July 13, 2018): When Lowe's Companies, Inc. (Lowe's Inc.) expanded its retail home improvement stores into Mexico, Lowe's Companies Mexico, S. de R.L. de C.V. (Lowe's…
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Appellate Jurisdiction — Even Though Motion to Reconsider Tolls Time to Appeal Until It’s Decided, It Does Not Extend Time If Made & Resolved before Judgment Entered — No Penalty or Benefit from Prematurely Filing Post-Judgment Motion

Havensight Capital LLC v. Nike, Inc., 2018 U.S. App. LEXIS 15367 (9th Cir. June 7, 2018): This appeal is the latest in an ongoing and bizarre dispute between Havensight Capital LLC (Ha ...
Havensight Capital LLC v. Nike, Inc., 2018 U.S. App. LEXIS 15367 (9th Cir. June 7, 2018): This appeal is the latest in an ongoing and bizarre dispute between Havensight Capital LLC (Havensight) and Nike, Inc. (Nike). Throughout these proceedings, …
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Judicial Notice of Internet Evidence — Court Can Take Judicial Notice of the Fact That Search Engines Index Web Content and Dynamically Return Relevant Search Results in Response to User-Entered Search Terms

Carter v. Oath Holdings, Inc., 2018 U.S. Dist. LEXIS 104510, 2018 WL 3067985 (N.D. Cal. June 21, 2018): Plaintiff Brian K. Carter brings this trademark infringement action against Defendant O ...
Carter v. Oath Holdings, Inc., 2018 U.S. Dist. LEXIS 104510, 2018 WL 3067985 (N.D. Cal. June 21, 2018): Plaintiff Brian K. Carter brings this trademark infringement action against Defendant Oath Holdings, Inc. Compl., ECF 1-1. Defendant filed a motion…
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§1782: Sworn Statement of Intent to File Foreign Criminal Complaint Satisfies “Foreign Tribunal” Requirement, Ability to Inject Evidence = “For Use” & Makes Movant Interested Party, As Does Circumscribed Ability to Appeal

In re Furstenberg Fin. SAS & Marc Bataillon, 2018 U.S. Dist. LEXIS 116391 (S.D.N.Y. July 12, 2018): Furstenberg Finance SAS and Marc Bataillon (together, the "petitioners") have appl ...
In re Furstenberg Fin. SAS & Marc Bataillon, 2018 U.S. Dist. LEXIS 116391 (S.D.N.Y. July 12, 2018): Furstenberg Finance SAS and Marc Bataillon (together, the "petitioners") have applied, pursuant to 28 U.S.C. § 1782, for an order for…
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While Court Has Jurisdiction under §1782 over Counsel in District Holding Docs/Discovery of Foreign Client, It Is Abuse of Discretion to Order Production — Would Undermine Client/Counsel Confidentiality — Importance of Protective Orders

Kiobel v. Cravath, 2018 U.S. App. LEXIS 18755 (2d Cir. July 10 2018): Petitioner-Appellee Esther Kiobel filed a petition in the United States District Court for the Southern District of New Yo ...
Kiobel v. Cravath, 2018 U.S. App. LEXIS 18755 (2d Cir. July 10 2018): Petitioner-Appellee Esther Kiobel filed a petition in the United States District Court for the Southern District of New York to subpoena documents under 28 U.S.C. § …
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RICO Standing: Only the Bankruptcy Estate Has Post-Petition Standing to Assert RICO Claims That Accrued Prior to Plaintiff’s Filing Bankruptcy Proceedings

In re Beckford, 2018 WL 3323347 (2d Cir. July 6, 2018): SUMMARY ORDER Appellant Alman Beckford, pro se, filed for bankruptcy in 2013. After Appellee Bayview Loan Services, LLC (“Bayview”) moved to lift the automatic stay to continue foreclosure proceedings, Beckford began an adversarial proceeding i ...
In re Beckford, 2018 WL 3323347 (2d Cir. July 6, 2018): SUMMARY ORDER Appellant Alman Beckford, pro se, filed for bankruptcy in 2013. After Appellee Bayview Loan Services, LLC (“Bayview”) moved to lift the automatic stay to continue foreclosure proceedings,…
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Recent Posts

Inherent Power Sanctions — Extrajudicial Misconduct: Sanctions Power Extends to Conduct Intended to Sabotage Court’s Ability to Adjudicate the Case Before It, Here, By Commencing State Court Actions Seeking to Enjoin the Federal Plaintiffs from Proceeding with Their Federal Litigation — Sanctions Fee Awards: The Factors Used For Calculating A Fee Award To A Prevailing Party Do Not Govern — Under Goodyear, the Relevant Inquiry Is Whether There Is A Sufficient Causal Link Between The Sanctioned Misconduct And The Fees Awarded

RICO: Members of Association-in-Fact Enterprise Must Act with a Common Purpose—Mere Allegation That Various Defendants Agreed at Different Times to Engage in Various Fraudulent Schemes Does Not Plausibly Support the Essential Inference, That They Acted with s Sufficiently Common Purpose

RICO Causation: (1) State’s Misrepresentation to Federal Government That It Was Providing Plaintiffs with Mandated Special Education Did Not Cause Plaintiffs’ Injury Because The Failure to Provide The Education Was Not Caused by the Fraud on the Federal Government — (2) The Three Factors for Assessing RICO Causation — (3) Limits of the Second Circuit’s Decision in Alix v. McKinsey That Causation Can Be Established Where A Fraud On The Judiciary “Or Other Governmental Entity” Resulted In A Resource Going To Someone Less Deserving

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)

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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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