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

Subpoenas: Rule 45 Does Not Apply to Administrative Subpoenas, But Court Has Discretion under Rule 81 to Apply Some Or All of Rule 45 to Such Subpoenas

United States v. Tennessee Walking Horse Breeders’ & Exhibitors’ Ass’n, 2018 WL 1219313 (6th Cir. Mar. 8, 2018): Defendant-Appellant Tennessee Walking Horse Breeders’ and Exhibitors’ Association (“TWHBEA”) appeals the district court’s denial of its motion for reimbursement of costs incurred complying with administrativ ...
United States v. Tennessee Walking Horse Breeders’ & Exhibitors’ Ass’n, 2018 WL 1219313 (6th Cir. Mar. 8, 2018): Defendant-Appellant Tennessee Walking Horse Breeders’ and Exhibitors’ Association (“TWHBEA”) appeals the district court’s denial of its motion for reimbursement of costs incurred…
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Rule 37 Sanctions: Dismissal Requires Order, Willful Violation & Prejudice — Rule 41(b): Dismissal Requires Only Failure to Comply with Court Order & Considers Prejudice to Adversary or Court Only to a Lesser Extent

Burgett v. Gen. Store No. Two Inc., 2018 WL 1444200 (8th Cir. Mar. 23, 2018): *1 Charles Burgett appeals a judgment of the district court1 dismissing his civil rights action as a sanction under
Burgett v. Gen. Store No. Two Inc., 2018 WL 1444200 (8th Cir. Mar. 23, 2018): *1 Charles Burgett appeals a judgment of the district court1 dismissing his civil rights action as a sanction under Federal Rules of Civil Procedure …
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Judicial Notice of Internet Evidence: Government Websites Are Self-Authenticating under Fed. R. Evid 902(5)

Walker v. Burkhart, 2018 U.S. Dist. LEXIS 87754 (E.D. Ky. May 25, 2018): Tamiko Walker is a pre-trial detainee currently confined at the Harlan County Detention Center ("HCDC") in Ha ...
Walker v. Burkhart, 2018 U.S. Dist. LEXIS 87754 (E.D. Ky. May 25, 2018): Tamiko Walker is a pre-trial detainee currently confined at the Harlan County Detention Center ("HCDC") in Harlan, Kentucky. Proceeding without counsel, Walker has filed a petition…
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12(b)(6) Motion to Dismiss — Incorporation of Website in Complaint — OK for Court to Consider Website When Authenticity Uncontested (Compare Our Post of Jan. 15, 2016)

Beckman v. Wal-Mart Stores, Inc., 2018 U.S. Dist. LEXIS 95414 (S.D. Cal. June 5, 2018): Plaintiff Gina Beckman brings this putative class action lawsuit against Defendants Wal-Mart Sto ...
Beckman v. Wal-Mart Stores, Inc., 2018 U.S. Dist. LEXIS 95414 (S.D. Cal. June 5, 2018): Plaintiff Gina Beckman brings this putative class action lawsuit against Defendants Wal-Mart Stores, Inc. ("Wal-Mart"), Espresso Supply, Inc., Eko Brands, LLC, and Ekobrew (collectively, …
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Arbitration/Appellate Jurisdiction: May Plaintiff Voluntarily Dismiss with Prejudice Post- Microsoft to Obtain Immediate Appellate Review? — Apparent Circuit Split

Holl v. UPS, 2018 U.S. Dist. LEXIS 96288 (N.D. Cal. June 7, 2018): SUPPLEMENTAL ORDER ADDRESSING PLAINTIFF'S PETITION FOR A WRIT OF MANDAMUS Re: Dkt. No. 49 ...
Holl v. UPS, 2018 U.S. Dist. LEXIS 96288 (N.D. Cal. June 7, 2018): SUPPLEMENTAL ORDER ADDRESSING PLAINTIFF'S PETITION FOR A WRIT OF MANDAMUS Re: Dkt. No. 49 The Court enters this supplemental order in response to the May 24,…
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Judicial Notice of Internet Evidence — Notice of Wayback Machine on 12(b)(6) Motion to Address Statute of Limitations / Equitable Tolling Issues

Sabatini v. Price, 2018 U.S. Dist. LEXIS 58533 (S.D. Cal. Apr. 5, 2018): On March 6, 2018, the Court dismissed Plaintiff William Sabatini's ("Plaintiff") Privacy Act comp ...
Sabatini v. Price, 2018 U.S. Dist. LEXIS 58533 (S.D. Cal. Apr. 5, 2018): On March 6, 2018, the Court dismissed Plaintiff William Sabatini's ("Plaintiff") Privacy Act complaint finding that it was barred by its two-year statute of limitations. (Doc. …
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Diversity Jurisdiction: Administratively Dissolved Corporation (Arts. Revoked for Failure to Pay Fees, Make Filings) Still Has Principal Place of Bus., Defeats Jd, Because It “Has Been” Inc’d within §1332(c)(1) (Circuit Split) — No 1447(d) Sanction

Colon v. Ashby, 2018 U.S. Dist. LEXIS 96709 (D.D.C. June 8, 2018): Before the Court is the plaintiffs' Motion to Remand. Dkt. 8. For the reasons that follow, the Court will grant the motio ...
Colon v. Ashby, 2018 U.S. Dist. LEXIS 96709 (D.D.C. June 8, 2018): Before the Court is the plaintiffs' Motion to Remand. Dkt. 8. For the reasons that follow, the Court will grant the motion. I. BACKGROUND This suit arises…
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Appellate Jurisdiction: Where Sanctions Order Entered after Final Judgment, Appeal of Final Judgment Doesn’t Capture Order — Strictly Enforcing Scheduling Order Deadlines ≠ Abuse of Discretion

Cagle v. United States, 2018 U.S. App. LEXIS 15564 (11th Cir. June 8, 2018): PER CURIAM: Andrea J. Cagle, proceeding pro se, appeals the district court's order granting su ...
Cagle v. United States, 2018 U.S. App. LEXIS 15564 (11th Cir. June 8, 2018): PER CURIAM: Andrea J. Cagle, proceeding pro se, appeals the district court's order granting summary judgment in favor of the government and dismissing her complaint.…
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Inherent Power Sanctions: Specific Finding of Conduct Tantamount to Bad Faith Mandatory — Circumstances in Which Post-Judgment Injunction Barring Asset Transfer May Enter

Smagin v. Yegiazaryan, 2018 WL 2275269 (9th Cir. May 18, 2018) (unpublished) (note:  this opinion has been amended -- see our post of August 25, 2018): MEMORANDUM** *1 In an arbitration between Vitaly Smagin and Ashot Yegiazaryan, the Lon ...
Smagin v. Yegiazaryan, 2018 WL 2275269 (9th Cir. May 18, 2018) (unpublished) (note:  this opinion has been amended — see our post of August 25, 2018): MEMORANDUM** *1 In an arbitration between Vitaly Smagin and Ashot Yegiazaryan, the London …
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Rule 41(b) Dismissal — 4 Factors (6th Circuit) — — Absent Bad Faith, Failure to Comply with Order May Be Insufficient Unless Warning Puts Party on Notice That Further Noncompliance Will Result in Dismissal

Harris v. Davidson Cty. Sheriff, 2018 U.S. App. LEXIS 10587 (6th Cir. Apr. 25, 2018): Vaughn Harris, a Tennessee pretrial detainee proceeding pro se, appeals the district court's judgment ...
Harris v. Davidson Cty. Sheriff, 2018 U.S. App. LEXIS 10587 (6th Cir. Apr. 25, 2018): Vaughn Harris, a Tennessee pretrial detainee proceeding pro se, appeals the district court's judgment dismissing his civil rights action pursuant to Federal Rule 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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