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

Spoliation — In Criminal Cases, Bad Faith Is Essential to Support Adverse Inference Instruction Even in Circuits Not Requiring Bad Faith in Civil Cases (Dissent Questions Whether This Is True in All Cirs. — This Case Makes It True in 6th Cir.)

United States v. Brasswell, 2017 U.S. App. LEXIS 16144 (6th Cir. Aug. 21, 2017): Defendant Larry Braswell was convicted of one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and was…
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Disqualification: 10th Cir. Factors—Essential Issue Is Taint of Lawsuit — Sanctions: If Attorney’s Fees Imposed on Client & Counsel, Counsel’s Objecting Just for Itself = Conflict, Resolved by Agreeing to Pay All—Meaning of Abuse of Discretion

U.S. ex rel. Tracy v. Emigration Improvement Dist., 2017 U.S. App. LEXIS 23650 (10th Cir. Nov. 22, 2017):   *   After examining the briefs and appellate record, this panel has determined unanimously to honor the parties' request for a decision on…
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Sanctions: Rule 41(b) Dismissal Requires Willful Disobedience of Court Order, Is a Last Resort — No Inherent Power Dismissal without Leave to Amend on Grounds Complaint Is Patently Frivolous (Circuit Split) — Rooker-Feldman Inapplicable to TROs

Smith v. HSBC Bank USA, N.A., 679 Fed.Appx. 876 (11th Cir. Feb. 13, 2017): Plaintiffs Marvin and Sharon Smith, proceeding pro se,1 appeal the district court’s denial of their motion to remand and the district court’s dismissal with…
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Rule 11 Sanctions — Pro Se Not Entitled to Attorney’s Fees Even If a Lawyer — Abuse of Discretion to Preclude Rule 11 Motion Based on Evaluation of Target’s Conduct under Subjective, Rather Than Objective, Standard

Rowe v. Gary, 2017 WL 3082022 (11th Cir. July 20, 2017): *1 Maria Sperando, a lawyer proceeding pro se, appeals the district court’s refusal to allow her to file a motion for sanctions against Leonard Rowe, Rowe Entertainment, Inc., …
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Rule 37(d) Sanctions: When Party Ignores Order after Warning Dismissal Could Result, No Abuse of Discretion to Dismiss — Failure to Attend Deposition as Ordered or Pay Prior Sanction — “Naked Claims of Destitution” Not Substantial Jusitification

Lafavors v. Thayer, 2017 U.S. App. LEXIS 12849 (11th Cir. July 18, 2017): Henry LaFavors, a state prisoner proceeding pro se, appeals the district court's dismissal, for failure to comply with a court order, of his complaint brought under…
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Spoliation: Movant Fails to Carry Burden Where Document May Have Been Lost Before the Duty to Preserve Attached — Best Evidence: If Original of Form Contract Innocently Lost, Use of Exemplar as Duplicate OK

Bickoff v. Wells Fargo Bank, N.A., 2017 U.S. App. LEXIS 24579 (9th Cir. Dec. 5, 2017): *   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Bruce Bickoff appeals the…
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“Conclusory, Self-Serving Affidavits Are Insufficient to Withstand Motion for SJ” (Good Quote) — Dr.’s Unauthorized Disclosure to Wife of Husband’s 160-Pill Viagra Rx Followed by Divorce ≠ Negligence Claim (No Causation) But = Breach of Confi

Lee v. Park, 2017 WL 6508840 (3d Cir. Dec. 20, 2017): This case originated as a result of the alleged improper disclosure of private medical information. Sang Geoul Lee (“Mr. Lee”) sued his former physician, Won Il Park (“Dr. Park”),…
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RICO: Non-Fraud Predicates Require Specific Factual Allegations; Hard Bargaining vs. Extortion — Rule 11 Sanctions: Complaint a “Quagmire of Wordy & Repetitious Verbiage” (Good Quote) — Court Must State Basis for Attorney’s Fees Award

Cervantes Orchards & Vineyards, LLC v. Deere & Co., 2017 U.S. App. LEXIS 25413 (9th Cir. Dec. 15, 2017): Cervantes Orchards and Vineyards, along with Cervantes Nurseries, Cervantes Packing & Storage, Manchego Real, Jose G. Cervantes, and Cynthia C. Cervantes,…
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Sixth Circuit Appears to Erroneously Affirm § 1927 Sanctions Imposed on Non-Attorney Pro Se Whose Conduct Could Have Been Sanctioned under Rule 11 or the Inherent Power

In re: Polyurethane Foam Antitrust Litigation, 2017 U.S. App. LEXIS 25352 (6th Cir. Dec. 14, 2017) (unpublished): ORDER Christopher Andrews, proceeding pro se, appeals the district court's judgment imposing sanctions against him (No. 17-3361) and its order denying his motion …
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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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