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

Supreme Court: In Determining Foreign Law under Rule 44.1, Court Is Not Conclusively Bound by Foreign Gov’t’s Amicus Statement As to What the Law Is, But Must Carefully Consider It — Cautiously, If Circumstances So Indicate

Animal Sci. Prods. v. Hebei
Animal Sci. Prods. v. Hebei Welcome Pharm. Co., 2018 U.S. LEXIS 3684, 2018 WL 2973745 (U.S. June 14, 2018): When foreign law is relevant to a case instituted in a federal court, and the foreign government whose law is …
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§1782 Discovery: Which Party Bears Burden of Proof on Intel Factors, Especially Receptivity of Foreign Tribunal to Sought Discovery? — Circuit Split — First Circuit: Neither Party

Schlich v. Broad Inst., 2018 U.S. App. LEXIS 16668 (1st Cir. June 20, 2018): Petitioner-Appellant George W. Schlich, a patent agent for Intellia Therapeutics, Inc., appeals from the district c ...
Schlich v. Broad Inst., 2018 U.S. App. LEXIS 16668 (1st Cir. June 20, 2018): Petitioner-Appellant George W. Schlich, a patent agent for Intellia Therapeutics, Inc., appeals from the district court's denial of a petition for discovery under 28 U.S.C. …
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FRAP 38 Sanctions: Merely Including Request in Brief Insufficient — Rule 60: 2 Types of Fraud: In Adversarial Process (1 Yr), On the Court (No Time Limit) — Missing Deadline: “He Simply Tripped over the Time Clock” (Good Quote)

Kennedy v. Schneider Elec., 2018 WL 3031074 (7th Cir. June 19, 2018): *1 In 2012, Bennie Kennedy filed a lawsuit against his longtime employer, Schneider Electric. In 2014, the district court granted summary judgment for Schneider Electric. More than a year later, and without offering any new evidence, Kennedy ...
Kennedy v. Schneider Elec., 2018 WL 3031074 (7th Cir. June 19, 2018): *1 In 2012, Bennie Kennedy filed a lawsuit against his longtime employer, Schneider Electric. In 2014, the district court granted summary judgment for Schneider Electric. More than a …
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Supreme Court: American Pipe Tolls Statute of Limitations for Individual Actions But Not Later Class Action — Court Notes Difficulty in Assessing Largest Financial Interest for PSLRA Lead Plaintiff Purposes, Possibility of Aggregation

China Agritech
China Agritech, Inc. v. Resh, 2018 U.S. LEXIS 3502 (U.S. June 11, 2018): This case concerns the tolling rule first stated in American Pipe & Constr. Co. v. Utah, 414 U. S. 538, 94 S. Ct. 756, …
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Rule 11 vs. 12(b)(6): While Court Credits Complaint on MTD, Not for Sanctions — “Sometimes a Litigant Makes Suspending Credibility … Difficult” (Good Quote) — Circuit Sustains Rule 11 Denial That “Could Be Reasonable” But Sanctions Per R. 38

Tobey v. Chibucos, 2018 WL 2210619 (7th Cir. May 15, 2018): *1 One man’s extradition is another man’s “kidnapping.” Edward Tobey, the plaintiff here, has three state-court convictions (one in Illinois and two in Florida) for possession of child pornography. Tobey also has a penchant for resist ...
Tobey v. Chibucos, 2018 WL 2210619 (7th Cir. May 15, 2018): *1 One man’s extradition is another man’s “kidnapping.” Edward Tobey, the plaintiff here, has three state-court convictions (one in Illinois and two in Florida) for possession of child pornography.…
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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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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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