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

§ 1927 and FRAP 46(c) Sanctions for Misrepresenting to Court of Appeals When Party Learned of the “New Evidence” Argued under Fed. R. Civ. P. 60(b)(2) — When a Lawyer Raises a Frivolous Argument with the District Court, and That Issue Is Appealed and Re-Argued to the Court of Appeals by Someone Else, The Original Lawyer Can Be Sanctioned under § 1927 For Multiplying Proceedings — Recklessly Raising Frivolous Argument Satisfies Bad Faith Requirement for § 1927 in 9th Circuit — § 1927 Does Not Apply to Law Firms — § 1927 Applies to All Responsible Lawyers, Not Just Those Appearing of Record Or Licensed to Practice Before Sanctioning Court — Reviewing and Approving Filings by General Counsel or Supervising Attorney Suffices — FRAP 46(c): Violating Rules of Professional Ethics = “Conduct Unbecoming of the Court’s Bar” Violative of FRAP 46(c) — Financial Sanctions and Notifications to State Bars and District Courts

Caputo ex rel. United States of Am. v. Tungsten Heavy Powder, Inc., 2024 U.S. App. LEXIS 6126 (9th Cir. Mar. 14, 2024): ORDER Petitioners Global Tungsten & Powders Corp. (GTP) and Gregory Caputo have filed a motion for sanctions against …
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§ 1927 Sanctions: Even If Court Lacks Subject Matter Jurisdiction Over The Merits of a Case, It Retains Jurisdiction to Impose Sanctions — Forfeiture (Failure to Assert Right) vs. Waiver (Intentional Relinquishment of Known Right) — Two Judge Concurrence Finds Strong Textual Argument There Is No Statutory Basis for the Existence of the Virgin Islands Bankruptcy Court

Prosser v Gerber (In re Prosser), 2024 WL 1230148 (3d Cir. Mar. 22, 2024) (unpublished):   Sanctions:  Even If Court Lacks Subject Matter Jurisdiction, It Retains Jurisdiction to Impose Sanctions — Forfeiture (Failure to Assert Right) vs. Waiver (Intentional Relinquishment …
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(1) Agreements to Agree — Good Quote: “A Non-Binding Agreement To Negotiate Is Not A Binding Agreement To Close A Deal. When Negotiating Parties Cannot Agree And A Deal Falls Apart, They May Be Disappointed, But There Is No Breach Of Contract.” — (2) Damages for Breach of Covenant Not to Sue = Attorney’s Fees and Costs in Defending — (3) Does the Duty of Good Faith and Fair Dealing Apply to Letters of Intent? Undecided

White Winston Select Asset Funds, LLC v. Good Times Rests., Inc., 2024 U.S. App. LEXIS 4942 (3d Cir. Mar. 1, 2024) (unpublished): OPINION* RESTREPO, Circuit Judge A non-binding agreement to negotiate is not a binding agreement to close a …
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Civil Contempt —Purposes: Compliance or Compensation — Clear and Convincing Evidence — Factors (6th Cir.): Court Order, Respondent’s Knowledge, Violation — Respondent’s Burden: Prove Present Inability to Comply — Spoliation of Tangible Evidence; Burden of Proof: Elements (6th Cir.) — Types of Sanctions — Severity Corresponds to Fault

NLRB v. Bannum, Inc., 2024 U.S. App. LEXIS 4225 (6th Cir. Feb. 23, 2024)  [**1]  PER CURIAM. In July 2023, we granted the National Labor Relations Board’s petition for a protective restraining order prohibiting Bannum, Inc. and Bannum Place of…
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Rule 37(c)(1) Sanctions: (1) Factors for Determining Whether Nondisclosure in Violation of Rule 26(a)(1) Was “Substantially Justified” or “Harmless” (Sixth Circuit Factors); (2) Nondisclosure in Violation of Rule 26(a) Causes No Surprise Where Evidence Consists of “Basic Math” Calculation Applied to Data in Documents in Movant’s Possession

House v. Player’s Dugout, Inc., 2024 U.S. App. LEXIS 3181, 2024 WL 495998 (6th Cir. Feb. 8, 2024): *1 This appeal arises from a jury verdict apportioning liability and awarding damages to both parties. Dr. Thomas House and the…
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(1) Rule 26(a) Disclosure Violation — Even If Non-Disclosure of Witness Was Neither Substantially Justified Or Harmless, Court Can Render It Harmless by Reopening Discovery to Allow Deposition; (2) “Good Cause” for Modification of Rule 16(b) Scheduling Order Provided by Nondisclosure of Witness in Violation of Rule 26(a); (3) Court Has Inherent Authority to Modify Scheduling Order Even in the Absence of “Good Cause”

Middlebrooks v. Equifax, Inc., 2024 U.S. App. LEXIS 3577, 2024 WL 631000 (11th Cir. Feb. 15, 2024): PER CURIAM: *1 Lillie Middlebrooks, proceeding pro se, appeals from the district court’s orders granting summary judgment in favor of Equifax, Inc.…
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Rule 11 Sanctions Reversed Under Demanding Plain Error Standard Where (1) Sanctions Motion Was Filed After the District Court Issued Its Decision, In Violation of Rule 11’s Safe Harbor (Rule 11(c)(2)) and (2) The District Court Failed to Describe The Offending Conduct And Furnish An Explanation for the Sanctions As Required by Rule 11(c)(6); (3) Good Quote: “Once an action is dismissed, a party may no longer move for sanctions under Rule 11”

Triantos v. Guaetta & Benson, LLC, 2024 U.S. App. LEXIS 2038, 91 F.4th 556 (1st Cir. 2024): After Deutsche Bank National Trust Company foreclosed on and sold his home, Nicholas Triantos sued various parties, including the law firm that…
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(1) Sanctions for Nonexistent Case (Generated by Artificial Intelligence) Cited to Court of Appeals: Referral to Grievance Panel and Disclosure of Opinion to Foreign Client, Translated; (2) Second Circuit Mistakenly Relies on Rule 11, Which Does Not Apply in Courts of Appeal, Rather Than FRAP 38, Inherent Power of the Court or Other Applicable Sanctions Power; (3) Rule 37 and Rule 41(b) Dismissal Factors (2d Cir.); (4) Collecting Local Rules Pertaining to Use of Artificial Intelligence in Court Proceedings

Park v. Kim, 2024 U.S. App. LEXIS 1996, 91 F.4th 610 (2d Cir. 2024): Per Curiam: Plaintiff-Appellant Minhye Park appeals from the August 25, 2022, judgment of the United States District Court for the Eastern District of New York…
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Recent Articles

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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