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

RICO: Whistleblower Fired for Reporting RICO Violation Lacks Standing Because Injury Is Not Directly Caused by the Violation But by the Decision to Fire Her

Arroyo v. Oprona, Inc., 2018 WL 2448785 (5th Cir. May 31, 2018): ON PETITION FOR REHEARING PER CURIAM:* *1 The petition for panel rehearing is GRANTED. The panel opinion,
Arroyo v. Oprona, Inc., 2018 WL 2448785 (5th Cir. May 31, 2018): ON PETITION FOR REHEARING PER CURIAM:* *1 The petition for panel rehearing is GRANTED. The panel opinion, Arroyo v. Oprona, Inc., No. 17-20576 (5th Cir. 2018) is WITHDRAWN,…
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Rule 41(b) Dismissal — 4 Factors (6th Circuit) — While Consideration or Prior Imposition of Lesser Sanctions Is a Factor, Circuit “Is Loathe to Require District Court to Incant a Litany of Available Lesser Sanctions” Before Dismissing (Good Quote)

Feldman v. Hamilton Cty. Job & Family Servs., 2018 U.S. App. LEXIS 8755 (6th Cir. Apr. 5, 2018): Brett and Nicole Feldman, Ohio residents proceeding pro se, appeal the district court's judgment dismissing ...
Feldman v. Hamilton Cty. Job & Family Servs., 2018 U.S. App. LEXIS 8755 (6th Cir. Apr. 5, 2018): Brett and Nicole Feldman, Ohio residents proceeding pro se, appeal the district court's judgment dismissing their complaint pursuant to Federal Rule …
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Work Product Protection Cannot Be Asserted over Material Prepared at Least in Part for Party Seeking to Waive Protection — Good Quote on Party Asking Ct. App. to Substitute Implicit Finding for Express Finding

Blattman v. Scaramellino, 2018 U.S. App. LEXIS 14252 (1st Cir. May 17, 2018): This appeal arises out of a civil action brought in federal court in Delaware concerning a corporate merg ...
Blattman v. Scaramellino, 2018 U.S. App. LEXIS 14252 (1st Cir. May 17, 2018): This appeal arises out of a civil action brought in federal court in Delaware concerning a corporate merger between Efficiency 2.0 LLC ("E2.0") and C3, Inc. …
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Does the Wayback Machine Make It Impossible for Some Copyright Offenders to Cease Infringing Because the Offending Version of a Website Is Perpetually Preserved and Accessible?

Bell v. Hess, 2018 U.S. Dist. LEXIS 38595 (S.D. Ind. Mar. 9, 2018): This matter is before the Court on Defendant Jay L. Hess' ("Hess") Motion for Judgment on the Pleadings filed pursuant to
Bell v. Hess, 2018 U.S. Dist. LEXIS 38595 (S.D. Ind. Mar. 9, 2018): This matter is before the Court on Defendant Jay L. Hess' ("Hess") Motion for Judgment on the Pleadings filed pursuant to Federal Rule of Civil Procedure 12(c)…
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Judicial Notice of Internet Evidence: Party’s Website OK on 12(b)(6) Motion If Website’s Authenticity Is Not In Dispute & It Is Capable of Accurate and Ready Determination

Universal Attractions, Inc. v. Live Nation Entm't, Inc., 2018 U.S. Dist. LEXIS 23578 (S.D.N.Y. Feb. 12, 2018): Plaintiff Universal Attractions, Inc. ("Universal") brings ...
Universal Attractions, Inc. v. Live Nation Entm't, Inc., 2018 U.S. Dist. LEXIS 23578 (S.D.N.Y. Feb. 12, 2018): Plaintiff Universal Attractions, Inc. ("Universal") brings this action against Defendants Live Nation Entertainment, Inc. ("Live Nation") and Ticketmaster LLC ("Ticketmaster"), alleging false …
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Appeals Courts Decline to Create Circuit Split unless There Is a Compelling Reason to Do So, Especially When Rule/Statute Is Best Applied Uniformly (Good Quote) — Here, Compelling Reasons for Split

Padilla-Ramirez v. Bible, 2018 U.S. App. LEXIS 3602 (9th Cir. Feb. 15, 2018): As a general rule, "we decline to create a circuit split unless there is a compelling reason to do so ...
Padilla-Ramirez v. Bible, 2018 U.S. App. LEXIS 3602 (9th Cir. Feb. 15, 2018): As a general rule, "we decline to create a circuit split unless there is a compelling reason to do so." Kelton Arms Condo. Owners Ass'n, …
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Rule 37 Sanctions: “When a Party Demonstrates a Flagrant Disregard for the Court and the Discovery Process[,] Dismissal Is not an Abuse of Discretion” (Good Quote) — Appeals: Court Will Not Consider Matters Raised for the First Time on Reply

Fountain v. United States, 2018 U.S. App. LEXIS 5452 (11th Cir. Feb. 28, 2018): PER CURIAM: Maria Fountain, proceeding pro se, filed a Federal Tort Claims Act lawsuit against the ...
Fountain v. United States, 2018 U.S. App. LEXIS 5452 (11th Cir. Feb. 28, 2018): PER CURIAM: Maria Fountain, proceeding pro se, filed a Federal Tort Claims Act lawsuit against the government but failed to attend a court-ordered deposition.…
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May a Pro Se Litigant Be Sanctioned under 28 U.S.C. § 1927? — Case Law Split — Counsel for Opposing Party Ethically Must Disclose Adverse Authority to the Court

Phillips v. Austin Diagnostic Surgery Ctr., 2018 U.S. Dist. LEXIS 33329 (W.D. Tex. Mar. 1, 2018): ORDER BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and specifically Defendant Austin Diagnostic (Austin Diagnostic) Clinic Association (Austin Diagnostic)'s
Phillips v. Austin Diagnostic Surgery Ctr., 2018 U.S. Dist. LEXIS 33329 (W.D. Tex. Mar. 1, 2018): ORDER BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and specifically Defendant Austin Diagnostic (Austin Diagnostic) Clinic…
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Intervention: Denial of Motion Appealable — Timeliness: Factors; Lack of Discovery Not Dispositive — Disqualification: May Ex-Client (Corp.) Intervene Solely to DQ One Side’s Counsel (50% Owner) at Behest of Other? To Guard Work Product?

Kirsch v. Dean, 2018 U.S. App. LEXIS 11478 (6th Cir. May 3, 2018): In this dispute between two fifty-percent shareholders of a corporation, we have been asked to decide whether the cor ...
Kirsch v. Dean, 2018 U.S. App. LEXIS 11478 (6th Cir. May 3, 2018): In this dispute between two fifty-percent shareholders of a corporation, we have been asked to decide whether the corporation may intervene, at the behest of one …
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Inherent Power Sanctions: Threats of Violence Suffice for Dismissal, But If Apology Offered, Hearing May Be Required to Assess Genuineness, Credibility of Apologist

Howard v. Martins, 2018 U.S. App. LEXIS 13991 (9th Cir. May 25, 2018): This appeal raises important questions regarding the right of prisoners to bring civil rights claims against the correcti ...
Howard v. Martins, 2018 U.S. App. LEXIS 13991 (9th Cir. May 25, 2018): This appeal raises important questions regarding the right of prisoners to bring civil rights claims against the correctional officers who supervise them, and the obligation prisoners…
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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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