Commercial Litigation and Arbitration

Joseph Hage Aaronson
Commercial Litigation and Arbitration

Greg Joseph

Rule 16(f) Sanctions: (1) Party Is Entitled to Notice of the Sanctions Power Under Consideration, Reasons Sanctions Are Being Considered, and the Form of Potential Sanctions; (2) Nonetheless, Sanctions Will Be Upheld Absent Explicit Notice of the Precise Legal Authority Relied On Where The Record Shows There Was Notice of The Sanctionable Conduct and The Factors The Court Would Consider — Here, Effectively Notice of the Precise Power under Consideration; (3) Attendance at CLE Courses Is A Permissible Sanction

Med. Tech. Assocs. II Inc. v. Rausch, 2023 WL 8451222 (3d Cir. Dec. 6, 2023) (unpublished) OPINION* Jonathan G. Graves appeals the District Court’s orders imposing sanctions against him. For the following reasons, we will affirm the District Court’s…
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(1) Judicial Estoppel — Third Circuit Factors — Bad Faith Required; (2) To Prove Bad Faith, Must Show (i) Culpable Behavior (ii) That Assaults The Dignity Or Authority Of The Court; (3) Earlier Inconsistent Position Must Have Been Accepted by the Court Because, Unlike Equitable Estoppel, Judicial Estoppel Focuses on the Court, Not the Opposing Party (Rare Exception to Success Requirement in Bankruptcy Context); (4) Generally, Defendants Have Flexibility in Asserting Positions in Early Stages of Litigation; (5) Judicial Estoppel (Like Inherent Power Sanctions)Appropriate Only If Sanctions Rules And Statutes Inadequate; (6) Good Quote: “The District Court Sought to Force a Square Peg into a Round Hole”

Pace-O-Matic, Inc. v. Eckert, Seamans Cherin & Mellott, LLC, 2023 U.S. App. LEXIS 30086 (3d Cir. Nov. 13, 2023) (unpublished): OPINION** Eckert Seamans Cherin & Mellott, LLC (“Eckert”), Hawke McKeon & Sniscak, LLP (“HMS”), and Greenwood Gaming and Entertainment, …
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Attorney-Client Privilege and Appealability: (1) Viability of Perlman Doctrine (Allowing Non-Party to Appeal Discovery Order) Is Unclear After Mohawk, But Party-Sought Review of Privilege Ruling Is Clearly Not Permitted; (2) Opinion Work Product Enjoys Nearly Absolute Immunity But Is Subject to Crime-Fraud Exception; (3) Crime Fraud Factors (4th Cir.): (i) Client Was Engaged In Or Planning Crime When Seeking Counsel, and (ii) The Privileged Materials Bear A Close Relationship to The Scheme; (4) Burden of Proof Less Than Preponderance — Simply Must Subject Opposing Party to Risk of Non-Persuasion If Unrebutted; (5) Client Waives Privilege By Testifying for Lawyer in Bar Proceedings; (6) Once Case Settled, Client’s Interest in Work Product Protection Is Not A Compelling Reason to Deny Discovery; (7) Good Quote: “Certainly, A District Court Does Not Clearly Err When Relying On Sworn Statements Over Negotiation-Driven Puffery”

Under Seal 1 v. United States (In re Subpoenas.), 2023 U.S. App. LEXIS 31137 (4th Cir. Nov. 22, 2023): Opinion Appellant John Doe is a medical malpractice attorney. While representing a client, Jane Roe, he engaged in settlement negotiations with…
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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

Jones v. Hamilton Cnty., 2023 U.S. App. LEXIS 29975 (6th Cir. Nov. 8, 2023) (unpublished): PER CURIAM. Lucinda Jones, an attorney proceeding pro se, appeals the district court’s judgment that dismissed her amended complaint against Circuit Judge David W. McKeague,…
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(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

CAN IV Packard Square, LLC v. Schubiner, 2023 U.S. App. LEXIS 30292 (6th Cir. Nov. 14, 2023) (unpublished): ORDER Craig Schubiner, a pro se New York resident, appeals the district court’s order denying his post-judgment motion for sanctions against Can…
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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

Stetson v. Edmonds, 2023 U.S. App. LEXIS 30361 (10th Cir. Nov. 15, 2023) When a party to litigation seeks to intentionally deceive the court and its adversary, a district court may issue reasonable sanctions and require the deceitful party to…
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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)

Finley v. Mora, 2023 U.S. App. LEXIS 30407 (6th Cir. Nov. 14, 2023): While attempting to park his tractor-trailer at a rest stop, Manuel Mora collided with Jake Finley’s already-parked tractor-trailer. Finley sued Mora and Nina Transport, Inc.,1 Mora’s…
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(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

Lambland, Inc. v. Heartland Biogas, LLC, 2023 U.S. App. LEXIS 25502 (10th Cir. Sept. 27, 2023) (unpublished) [NOTE:  Amended and Substituted Opinion may be found at 2023 U.S. App. LEXIS 31726 (10th Cir. Nov. 30, 2023) (unpublished)] ORDER AND JUDGMENT…
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Recent Articles

Rule 16(f) Sanctions: (1) Party Is Entitled to Notice of the Sanctions Power Under Consideration, Reasons Sanctions Are Being Considered, and the Form of Potential Sanctions; (2) Nonetheless, Sanctions Will Be Upheld Absent Explicit Notice of the Precise Legal Authority Relied On Where The Record Shows There Was Notice of The Sanctionable Conduct and The Factors The Court Would Consider — Here, Effectively Notice of the Precise Power under Consideration; (3) Attendance at CLE Courses Is A Permissible Sanction

(1) Judicial Estoppel — Third Circuit Factors — Bad Faith Required; (2) To Prove Bad Faith, Must Show (i) Culpable Behavior (ii) That Assaults The Dignity Or Authority Of The Court; (3) Earlier Inconsistent Position Must Have Been Accepted by the Court Because, Unlike Equitable Estoppel, Judicial Estoppel Focuses on the Court, Not the Opposing Party (Rare Exception to Success Requirement in Bankruptcy Context); (4) Generally, Defendants Have Flexibility in Asserting Positions in Early Stages of Litigation; (5) Judicial Estoppel (Like Inherent Power Sanctions)Appropriate Only If Sanctions Rules And Statutes Inadequate; (6) Good Quote: “The District Court Sought to Force a Square Peg into a Round Hole”

Attorney-Client Privilege and Appealability: (1) Viability of Perlman Doctrine (Allowing Non-Party to Appeal Discovery Order) Is Unclear After Mohawk, But Party-Sought Review of Privilege Ruling Is Clearly Not Permitted; (2) Opinion Work Product Enjoys Nearly Absolute Immunity But Is Subject to Crime-Fraud Exception; (3) Crime Fraud Factors (4th Cir.): (i) Client Was Engaged In Or Planning Crime When Seeking Counsel, and (ii) The Privileged Materials Bear A Close Relationship to The Scheme; (4) Burden of Proof Less Than Preponderance — Simply Must Subject Opposing Party to Risk of Non-Persuasion If Unrebutted; (5) Client Waives Privilege By Testifying for Lawyer in Bar Proceedings; (6) Once Case Settled, Client’s Interest in Work Product Protection Is Not A Compelling Reason to Deny Discovery; (7) Good Quote: “Certainly, A District Court Does Not Clearly Err When Relying On Sworn Statements Over Negotiation-Driven Puffery”

Legislative Privilege Waived by State House Speaker and Senate Majority Leader When They Intervened in Case Challenging Voting Laws And Putting Their Movtives At Issue

Newly Amended Federal Rule of Evidence 702 (effective Dec. 1, 2023) – Marked Up to Show Changes – With Advisory Committee Note

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

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