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

Joseph Hage Aaronson

Rule 37[(c)] Sanctions & Multi-District Litigation: MDL Court Has “Wide Latitude” to Dismiss for Non-Compliance with Court Order Where Party on Notice & Has Opportunity to Respond — 37(b) Dismissal Factors (3d Cir.)

In re Avandia Mktg. & Sales Pracs. & Prods. Liab. Lit., 2017 WL 1401285 (3d Cir. April 19, 2017): PER CURIAM *1 The Mayfields appeal pro se from the District Court’s order dismissing their complaint with prejudice after they failed…
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Email [Text] Evidence: Request or Proposal ≠ Hearsay Because It Doesn’t Assert the Truth of Any Fact — Photo of Email Must Be Authenticated As Photo (Fair & Accurate) and Writing (Circumstantial Evid., Including Contents)

People v. Dodge, 2017 Cal. App. Unpub. LEXIS 8503, 2017 WL 6350073 (Cal. Ct. App. Dec. 13, 2017): A jury convicted defendant Aaron Dodge of several drug offenses and acquitted him of several others. The jury found him guilty of…
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3d Circuit’s 7-Factor Test for Admitting Tape Recordings in Criminal Cases Is Not The Sole Test — Tape Recordings of Voicemails Admitted on Testimony of Recipient/Taper — Gaps in Chain of Custody Go to Weight

United States v. Credico, 2017 U.S. App. LEXIS 25472 (3d Cir. Dec. 18, 2017) (affirming the decision excerpted in our post of Nov. 19, 2016): Defendant Justin Credico appeals from his conviction after a jury trial for threatening federal agents…
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Spoliation: Bad Faith Needed in 10th Cir. But Breach of Reg Gives Rise to Bursting Bubble Presumption (R. 301) Against Destroyer—Opening Statement Opens Door to Evid on Matters Mentioned, Waives In Limine Motion, Which Must Be Renewed at Trial (R. 103)

EEOC v. JetStream Ground Servs., Inc., 2017 U.S. App. LEXIS 26867 (10th Cir. Dec. 28, 2017): A jury rejected an employment-discrimination claim against JetStream Ground Services, Inc. filed by several Muslim women and the Equal Employment Opportunity Commission (EEOC) (collectively, …
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Rule 16(f) Sanctions: Failure to Notify Adversary of Change in Settlement Posture Before Settlement Conference = Not Participating in Good Faith — Appeals: Failure to Include Transcript Bars Review of Findings of Fact Concerning Hearing

Koehn v. Tobias, 2017 WL 3327009 (7th Cir. Aug. 4, 2017): Plaintiff-appellee Peter Koehn filed suit under 42 U.S.C. § 1983, alleging that Defendants-appellants Lauri Tobias and Margaret Segerston (Defendants), his former employers, unlawfully retaliated against him for exercising…
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Inherent Power Sanctions on Non-Party OK (Purported CEO of Plaintiffs, Authored Bad Faith Affidavits, Failed to Appear when Ordered) — 9th Circuit’s Recklessness-Plus Standard for Bad Faith: Concrete Examples

Indiezone, Inc. v. Rooke, 2017 U.S. App. LEXIS 25308 (9th Cir. Dec. 14, 2017): MEMORANDUM* *   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. In this consolidated appeal, appellants…
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Recent Articles

RICO: Fraudulent Concealment Must Prevent Discovery of the Injury to Toll Statute of Limitations

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

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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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