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

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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Judicial Notice of Internet Evidence — Interstate Compact

Longson v. Nebraska, 2018 U.S. Dist. LEXIS 46874 (D. Neb. Mar. 22, 2018): Because Petitioner is set to serve his two-day jail sanctions for a violation of his conditions of probation this coming Saturday and because he seeks a stay, I have expedited this initial review1 of Petit ...
Longson v. Nebraska, 2018 U.S. Dist. LEXIS 46874 (D. Neb. Mar. 22, 2018): Because Petitioner is set to serve his two-day jail sanctions for a violation of his conditions of probation this coming Saturday and because he seeks a stay,…
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Removal: In What Circumstances Is a Third Party Complaint Removable?

Druivenga v. Hillshire Brands Co.,2018 U.S. Dist. LEXIS 33130 (N.D. Iowa Mar. 1, 2018):  Did The Hillshire Brands Company timely remove this action, involving what was originally a third-part ...
Druivenga v. Hillshire Brands Co.,2018 U.S. Dist. LEXIS 33130 (N.D. Iowa Mar. 1, 2018):  Did The Hillshire Brands Company timely remove this action, involving what was originally a third-party claim by Mark Druivenga, d/b/a Contract Welding & Mechanical, against…
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Revocation of Permission to Proceed In Forma Pauperis Appropriate Rule 11 Sanction for Misrepresentation — Appeals:: Issues Not Specifically & Distinctly Raised & Argued in Opening Brief Not Considered

DeVaughn v. Mannion, 2018 U.S. App. LEXIS 4468 (9th Cir. Feb. 23, 2018) (unpublished): California state prisoner Michael Owen DeVaughn appeals pro se from the district court's order in his 42 U.S.C. § 1983 action revoking his application to proceed in forma pauperis as a sanction under
DeVaughn v. Mannion, 2018 U.S. App. LEXIS 4468 (9th Cir. Feb. 23, 2018) (unpublished): California state prisoner Michael Owen DeVaughn appeals pro se from the district court's order in his 42 U.S.C. § 1983 action revoking his application to proceed…
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Rule 37(d) Sanctions — Dismissal: Factors — Violation of Order Enough, Even If Discovery Provided Late — Date for Pretrial Order Does Not Supersede 26(a)(3) Deadline for List of Witnesses and Exhibits Where Pretrial Order Due After 26(a)(3) List

Norris v MK Holdings, Inc., 2018 WL 2324256, 2018 U.S. App. LEXIS 13260 (6th Cir. May 22, 2018): *1 Ceil Walker Norris, individually and in her role as a trustee of several family trusts, and on behalf of her business, Walker & Associates, Inc., (individually and collectively “Walker”) initiated this actio ...
Norris v MK Holdings, Inc., 2018 WL 2324256, 2018 U.S. App. LEXIS 13260 (6th Cir. May 22, 2018): *1 Ceil Walker Norris, individually and in her role as a trustee of several family trusts, and on behalf of her business, …
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Contracts: The First-Breach Rule, Holding That the Party Who Commits the First Breach Cannot Complain about a Subsequent Breach by the Other Party, Applies Even If the Later Breaching Party Is Ignorant of the First Breach When It Breaches

ClubSpecialists Int'l., LLC v. Keeneland Ass'n, 2018 U.S. Dist. LEXIS 73832 (E.D. Ky. May 2, 2018): This matter is before the Court on cross-motions for summary judgment filed by Plain ...
ClubSpecialists Int'l., LLC v. Keeneland Ass'n, 2018 U.S. Dist. LEXIS 73832 (E.D. Ky. May 2, 2018): This matter is before the Court on cross-motions for summary judgment filed by Plaintiff ClubSpecialists Intl., LLC and Defendant and Intervenor Defendant Keeneland…
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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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