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

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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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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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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