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

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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DOJ-Drafted Agreement Preserves Attorney-Client Privilege for Info Voluntarily Disclosed to Government Per Rule 502(e) — Privilege (Judicial Proceedings) vs. Confidentiality (Extrajudicial Disclosure) — Waiver As to Third Parties?

United States v. Under Seal (In re Grand Jury 16-3817 (16-4)), 2018 U.S. App. LEXIS 17613 (4th Cir. June 27, 2018): Appellant corporation ("X Corp.")
United States v. Under Seal (In re Grand Jury 16-3817 (16-4)), 2018 U.S. App. LEXIS 17613 (4th Cir. June 27, 2018): Appellant corporation ("X Corp.")1 and the Government dispute whether a written agreement between them preserved X Corp.'s …
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Tax Returns: Discovery: Compelling Need — Rule 37(b)(2)(A) Sanctions: Adverse Inference for Disregarding Court Orders; No Warning Needed — R. 37(c)(1) Exclusion: SJ Affidavits from Wit. Not ID’ed in 26(a)(1) Disclosures (Mention at Dep. Insuff.)

Zheng v. Perfect Team Corp., 2018 WL 3133942 (2d Cir. June 26, 2018): *1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Defendants-Appellants Perfect Team Corporation doing business as Guang Zhou ...
Zheng v. Perfect Team Corp., 2018 WL 3133942 (2d Cir. June 26, 2018): *1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Defendants-Appellants Perfect Team Corporation doing business…
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R. 37, IHP, §1927 Sanctions: “Punishment Must Fit Crime” — Default Jmt. Factors (6th Cir.) — Meaning of Abuse of Discretion — Failure to Object to R&R Waives Review of DJ’s Adoption — Good Quotes on Playing by Rules, No New Args on Reply

Ecimos, LLC v. Nortek Global HVAC, LLC, 2018 WL 2459915 (6th Cir. June 1, 2018): At first glance, this case appears complicated. It languished for years in the district court as the magistrate judge and district judge held countless hearings and conferences and issued dozens of rulings. All told, this case sprawled over more than 250 ...
Ecimos, LLC v. Nortek Global HVAC, LLC, 2018 WL 2459915 (6th Cir. June 1, 2018): At first glance, this case appears complicated. It languished for years in the district court as the magistrate judge and district judge held countless hearings…
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Rule 41(b) Dismissal With Prejudice Requires Willful Conduct, Lesser Sanctions Inadequate — Without Prejudice Generally OK Because Party Can Re-File, Violation of Local Enough (Here, Non-Lawyer as Counsel)

Class v. United States Bank Nat'l Ass'n, 2018 U.S. App. LEXIS 12361 (11th Cir. May 9, 2018) (unpublished): Rodney Dale Class appeals the district court's sua sponte
Class v. United States Bank Nat'l Ass'n, 2018 U.S. App. LEXIS 12361 (11th Cir. May 9, 2018) (unpublished): Rodney Dale Class appeals the district court's sua sponte dismissal without prejudice of his pro se civil lawsuit, filed on behalf …
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Rule 37(c)(1) Sanctions — Court Should Exclude Critical Evidence Such As Expert Testimony Only on a Showing of Willful Deception or Flagrant Disregard of a Court Order

Lamb v. Montgomery Township, 2018 WL 2094513 (3d Cir. May 7, 2018): Debora Lamb appeals from the grant of summary judgment against her on her claims that Montgomery Township, Lawrence Gregan, and Kevin Costello (the “Defendants”) violated her rights under Title VII of the Civil Rights Act of 1964,
Lamb v. Montgomery Township, 2018 WL 2094513 (3d Cir. May 7, 2018): Debora Lamb appeals from the grant of summary judgment against her on her claims that Montgomery Township, Lawrence Gregan, and Kevin Costello (the “Defendants”) violated her rights under…
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Rule 41(b) Dismissal with Prejudice “Harsh” Sanction, to Be Employed Only in “Extreme Circumstances” — Failure to “Fully” Consider Efficacy of Lesser Sanctions Reversible Error — Five 9th Circuit Factors

Pima County Office of Children's Counsel v. Ariz., 2018 U.S. App. LEXIS 7968 (9th Cir. Mar. 29, 2018): MEMORANDUM* The plain ...
Pima County Office of Children's Counsel v. Ariz., 2018 U.S. App. LEXIS 7968 (9th Cir. Mar. 29, 2018): MEMORANDUM* The plaintiffs allege that Arizona's Department of Child Protective Services wrongfully removed a child, A.E., from his father's home…
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Rule 11: Ninth Circuit Appears to Frown on Incorporating into Rule 11 Motion Arguments Made in Another Pleading in Light of the Separate-Motion Requirement of Rule 11(c)(2)

Ortego v. Lummi Island Scenic Estates Community Club, Inc., 2018 WL 3045230 (9th Cir. June 20, 2018): MEMORANDUM* *1 1. The district court properly determined that the Lummi Island Scenic Estates Community Club, Inc. (LISECC) has continuing authority to govern all of the properties comprising Lummi I ...
Ortego v. Lummi Island Scenic Estates Community Club, Inc., 2018 WL 3045230 (9th Cir. June 20, 2018): MEMORANDUM* *1 1. The district court properly determined that the Lummi Island Scenic Estates Community Club, Inc. (LISECC) has continuing authority to govern…
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Inherent Power Sanctions for Extrajudicial (Prelitigation) Misconduct — Stealing Documents — & Using Them in Lit. = Interference with Judicial Process — Dismissal Requires Clear and Convincing Evidence — No Warning Required in These Circs.

Xyngular v. Schenkel, 2018 WL 2208472 (10th Cir. May 15, 2018): *1 Marc Schenkel appeals the dismissal by the district court of his claims against Xyngular Corporation and various third parties as a sanction for abuse of what he claims was pre-litigation discovery. Because we have not previously decided whether pre-li ...
Xyngular v. Schenkel, 2018 WL 2208472 (10th Cir. May 15, 2018): *1 Marc Schenkel appeals the dismissal by the district court of his claims against Xyngular Corporation and various third parties as a sanction for abuse of what he claims…
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Inherent Power & §1927—Duty of Candor: Even If No Duty to Disclose, Denials of Authenticity of Doc While Hiding Client Has Copy Are Sanctionable — “The Effort to Chop Down a Few Trees Doesn’t Mean There’s No Forest” (Good Quote)

Six v. Generations Fed. Credit Union, 891 F.3d 508 (4th Cir. 2018): This appeal arises out of the district court’s order sanctioning three attorneys and their law firms under both its inherent authority and
Six v. Generations Fed. Credit Union, 891 F.3d 508 (4th Cir. 2018): This appeal arises out of the district court’s order sanctioning three attorneys and their law firms under both its inherent authority and 28 U.S.C. § 1927. Finding…
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Recent Posts

RICO Causation: Parents of Children with Disabilities Deprived In-Person Education and Services during the Pandemic Were Not Causally Injured by Teachers’ False Assurances to Federal Authorities That IDEA-Complaint Policies Were in Place, Which Caused Funds to Issue But Not to the Benefit of the Disabled Children — Damages Too Indirect — Proper Plaintiff Is U.S. Government — Private Injunctive Relief Under RICO Uncertain in Third Circuit

Sanctions: Rule 37(b)(2) Dismissal — Sixth Circuit Factors

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

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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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