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

Does a Magistrate Judge Have Power to Resolve Post-Judgment Discovery Issues? — First Impression (Yes) — Privilege: Witness Must Take Stand & Assert Fifth & Attorney-Client on Question-by-Question Basis — Elements of Summary Criminal Contempt

In re Deposition of LeFande, 2018 U.S. Dist. LEXIS 30203 (D.D.C. Feb. 26, 2018): Attorney Matthew LeFande has moved to vacate a criminal contempt order issued against him by the Magistrate Judge when he refused to take the stand and be sworn for the deposition that was scheduled to take place on September 21, 2017 in the Magis ...
In re Deposition of LeFande, 2018 U.S. Dist. LEXIS 30203 (D.D.C. Feb. 26, 2018): Attorney Matthew LeFande has moved to vacate a criminal contempt order issued against him by the Magistrate Judge when he refused to take the stand and …
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“Conclusory & Often Shifting Testimony” Can’t Defeat SJ — Rule 11 Sanctions for Party’s “Remarkable” Failure to “Settle[] on Basic Facts … Easily Accessible to” Her 5 Years into the Case—No Sxs for Novel Legal Theory (Good Quotes)

Hutter v. Countrywide Bank, N.A., 2018 WL 580630 (2d Cir. Jan. 29, 2018): *1 Plaintiff-appellant Nance M. Hutter (“Plaintiff” or “Hutter”) and appellant Stephen A. Katz (“Katz”), an attorney proceeding pro se, appeal from the June 12, 2017 judgment of the District Court. As relevant here, ...
Hutter v. Countrywide Bank, N.A., 2018 WL 580630 (2d Cir. Jan. 29, 2018): *1 Plaintiff-appellant Nance M. Hutter (“Plaintiff” or “Hutter”) and appellant Stephen A. Katz (“Katz”), an attorney proceeding pro se, appeal from the June 12, 2017 judgment of …
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Hearsay: A Court Judgment Or Ruling Is Inadmissible Hearsay If It Is Offered to Prove the Truth of the Matter Asserted — Must Be Offered for Non-Hearsay Purpose, Like Effect on the Listener

UnitedHealth Grp., Inc. v. Exec. Risk Specialty Ins. Co., 870 F.3d 856 (8th Cir. 2017): UnitedHealth Group sued several insurers in the [**2]  District of Minnesota, seekin ...
UnitedHealth Grp., Inc. v. Exec. Risk Specialty Ins. Co., 870 F.3d 856 (8th Cir. 2017): UnitedHealth Group sued several insurers in the [**2]  District of Minnesota, seeking indemnity and defense costs for underlying litigation settlements under its professional liability…
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Rule 37(c)(1) Sanctions — When Preclusion (Here of Damages Computation Not Disclosed Per 26(a)(1)) Will Result in Functional Dismissal of the Case, Finding of Willfulness, Fault or Bad Faith Is Required, and Lesser Sanctions Must Be Considered

Tablizo v. City of Las Vegas, 2018 WL 1979048 (9th Cir. Apr. 27, 2018): MEMORANDUM* Plaintiff-Appellant Cely Tablizo appeals the district court’s grant of summary judgment for Defendant-Appellee the City of Las Vegas. We have jurisdiction under
Tablizo v. City of Las Vegas, 2018 WL 1979048 (9th Cir. Apr. 27, 2018): MEMORANDUM* Plaintiff-Appellant Cely Tablizo appeals the district court’s grant of summary judgment for Defendant-Appellee the City of Las Vegas. We have jurisdiction under 28 U.S.C. § …
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Social Media Video (YouTube/Facebook) Authenticated by Evid. of Download, Contents — No Need for Creator or Cert. from Website — Lay Opinion OK If Wit. in Better Position Than Jury to Identify Person, Object, Voice (Collecting Cases)

Lamb v. State, 2018 Fla. App. LEXIS 6086 (Fla. Ct. App. May 2, 2018): The defendant appeals from his convictions, arising from a carjacking, for grand theft of a vehicle and grand theft. The defendant ...
Lamb v. State, 2018 Fla. App. LEXIS 6086 (Fla. Ct. App. May 2, 2018): The defendant appeals from his convictions, arising from a carjacking, for grand theft of a vehicle and grand theft. The defendant primarily argues that the …
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§ 1927 Sanctions: Only Excess Costs Recoverable — Recusal: Expressions of Impatience, Annoyance, Anger Not Enough — In Limine Ruling Generally Superfluous in Bench Trials But No Error to Issue One

Ketab Corp. v. Mesriani & Assocs., PC, 2018 WL 2041424 (9th Cir. May 2, 2018): MEMORANDUM** *1 This case is a consolidated appeal arising from Plaintiff-Appellant Ketab Corp.’s (“Ketab”) claims against Defendants-Appellees Mesriani & Associates, P.C. ...
Ketab Corp. v. Mesriani & Assocs., PC, 2018 WL 2041424 (9th Cir. May 2, 2018): MEMORANDUM** *1 This case is a consolidated appeal arising from Plaintiff-Appellant Ketab Corp.’s (“Ketab”) claims against Defendants-Appellees Mesriani & Associates, P.C. aka, Mesriani Law…
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Standards of Review of Magistrate Judge Reports and Recommendations — Impact of Specific Objections — New Evidence Requires Compelling Justification

Fischer v. Forrest, 2018 U.S. Dist. LEXIS 25923 (S.D.N.Y. Feb. 16, 2018): A. Reports and Recommendations After a magistrate judge has issued a Report and Recommendation, a district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." ...
Fischer v. Forrest, 2018 U.S. Dist. LEXIS 25923 (S.D.N.Y. Feb. 16, 2018): A. Reports and Recommendations After a magistrate judge has issued a Report and Recommendation, a district court may "accept, reject, or modify, in whole or in part, the…
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Do the Heightened Pleading Requirements of Rule 9(b) Apply to Negligent Misrepresentation Claims? — Circuit Split

Armour Capital Mgmt. LP v. SS&C Techs., 2018 U.S. Dist. LEXIS 43280 (D. Conn. Mar. 16, 2018): This case arises from a contractual relationship between ARMOUR Capital Management LP (ACM), a reg ...
Armour Capital Mgmt. LP v. SS&C Techs., 2018 U.S. Dist. LEXIS 43280 (D. Conn. Mar. 16, 2018): This case arises from a contractual relationship between ARMOUR Capital Management LP (ACM), a registered investment advisor focusing on mortgage-related securities, and…
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Contempt Sanctions: A Coercive Sanction Cannot Be Imposed on a Party That Is Currently in Compliance Just to Insure Future Compliance (Here, a Special Master) (Good Quote)

Acosta v. Paragon Contrs. Corp., 2018 U.S. App. LEXIS 6198, 2018 WL 1280127 (10th Cir. Mar. 13, 2018):   This case arises out of a 2007 injunction, which prohibited Paragon Contractor ...
Acosta v. Paragon Contrs. Corp., 2018 U.S. App. LEXIS 6198, 2018 WL 1280127 (10th Cir. Mar. 13, 2018):   This case arises out of a 2007 injunction, which prohibited Paragon Contractors Corporation and its president (Mr. Brian Jessop) from engaging …
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Is a Decision on a Motion to Intervene Dispositive under 28 U.S.C. § 636? — Case Law Split as to Whether Magistrate Judge Has Power to Decide or Must Issue an R&R

Vazzo v City of Tampa, 2018 U.S. Dist. LEXIS 57558 (M.D. Fla. Mar. 15, 2018): 1 Courts in this circuit are split on whether motions to intervene are dispositive under 28 U.S.C. Section 636. Compare
Vazzo v City of Tampa, 2018 U.S. Dist. LEXIS 57558 (M.D. Fla. Mar. 15, 2018): 1 Courts in this circuit are split on whether motions to intervene are dispositive under 28 U.S.C. Section 636. Compare Mid-Continent Cas. Co. v. …
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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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