15th Anniversary of Firm - Joseph Hage Aaronson

Commercial Litigation and Arbitration

Commercial Litigation and Arbitration

15th Anniversary of Firm

March 17, 2016, marks the 15th anniversary of the Firm.

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Section 1927 Sanctions: (1) No Bad Faith Required—Intentionality or Knowing Disregard Suffice (Sixth Circuit); (2) Filing Complaint Collaterally Attacking Prior Appellate Decision Unreasonably and Vexatiously Multiplied the Proceedings; (3) Lump Sum Award of $5,000 under § 1927 Affirmed

(1) Section 1927 Sanctions Precluded by Denial of Summary Judgment; (2) Filing of Complaint Found Meritless on Appeal Not Automatically Sanctionable under § 1927 (Sixth Circuit); (3) Post-Judgment Rule 11 Motion Fails for Failure to Provide 21-Day Safe Harbor

Inherent Power Sanctions: (1) Bad Faith in Manufacturing Personal Injuries Supposedly Caused by Accident—By Lying to Doctors, Court, Opponent And Plaintiff’s Own Counsel—Warranted Dismissal of All Non-Economic Damages Claims; (2) Proper under Goodyear v. Haeger to Award All Attorney’s Fees Incurred in Defending Action Initiated in Bad Faith; (3) Tenth Circuit Factors Governing Dismissal for Discovery Misconduct; (4) “The Lodestar Calculation Produces a Presumptively Reasonable Fee” (Good Quote); (5) Furnishing Business Records Certification Just Prior to Trial Violates Fed. R. Evid. 902(11) Requirement That Opponent Be Given “A Fair Opportunity to Challenge” The Certification and Record

Experts: “Post Hoc, Ergo Propter Hoc Is Neither A Rule Of Legal Causation,, Nor Typically A Sufficient Methodological Basis For An Expert Opinion On Causation” (Good Quote) – Medical Testimony on Diagnosis vs. Etiology (Cause of Symptoms vs. Cause of Disorder)

(1) Experts: 701 vs. 702 Testimony — Business Owner/Officer May Offer Lay Opinion of Value or Future Profits Based on Particularized Knowledge Derived from Position And Straightforward, Common Sense Calculations — (2) CFO’s Testimony Based on Previous Professional Experience Creating Budget Forecasts and Utilizing Complex, Sophisticated Formulas Improperly Admitted Under 701, Constituted 702 Testimony — (3) Contract Interpretation: A Broad Heading Cannot Override the Specific Language of a Particular Clause — (4) If Appellant Does Not Challenge Trial Court’s Alternate Ground for Its Ruling, Appellate Court May Affirm

Contract Formation Online — When Is A Customer Bound by Unread/Unclicked-On Terms And Conditions? — 2-Part Test: Inquiry Notice & Unambiguous Manifestation of Consent — What Is A “Reasonably Prudent” Internet User? — When Is That Person on Inquiry Notice? — What Constitutes An Unambiguous Manifestation of Consent?

Federal Court of Appeals Is Bound by Decisions of State Intermediate Appellate Courts Absent Persuasive Evidence The State’s Highest Court Would Reach a Different Decision

Rule 37 Sanctions – Default Judgment: (1) 4-Factor Test for Litigation-Ending Sanctions for Discovery Abuse (Fifth Circuit); (2) Deletion and Manipulation of Source Code As Spoliation; (3) Detailed Consideration of Lesser Sanctions Excused Where It Is Clear Lesser Sanctions Would Have Been Futile—Especially Where the Misconduct Was Egregious And Repeated, And There Has Been A Warning; (4) Giving A Second Or Third Chance Before Imposing Litigation-Ending Sanctions Itself Amounts to a Lesser Sanction; (5) A Default Judgment Is Sometimes The Only Practicable Solution; (6) Where Party Appealing Denial of Rule 60(b) Motion for Reconsideration Failed to Object to the R&R Adopted by the District Court, Appellate Review Is for Plain Error Only

Section 1927 Sanctions: (1) While Review Is Generally Abuse-of-Discretion, It Is De Novo When Exercise of Discretion Depends on a Purely Legal Issue; (2) 4. Survival on Rule 56 and 52 Motions On The Same Grounds Used Later To Sanction Plaintiffs’ Counsel Shows That They Didn’t Pursue Their Claims Recklessly; (3) Absent a Misrepresentation to the Court, Parties May Rely on Success in Rule 56 and 52 Motions As Indicators That Their Claims Were Objectively Reasonable and Suitable for Trial, Although Court Notes That Survival on Rule 52 and 56 Motions Doesn’t Automatically Preclude § 1927 Sanctions; Court Cannot Impose § 1927 Sanctions For Failing To Sustain Burden Of Proof Where Court Accepted That Quantum Of Evidence As Sufficient On Summary Judgment; Survival on Daubert Motion Precludes § 1927 Sanctions for Continued Reliance on Expert to Proceed to Trial

Inherent Power Sanctions: (1) Court May Enter Dismissal on the Merits Even If It Lacks Subject Matter Jurisdiction — (2) Bad Faith or Willful Abuse of Judicial process Required in Fifth Circuit — (3) Opposing Party Need Not Be Prejudiced — (4) All Aspects of Inherent Power Sanctions Award, Including Invocation of Power, Reviewed for Abuse of Discretion — (5) District Court Must Sufficiently Articulate Reasons for Sanctions Award

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