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 56(h) Sanctions: Attorney’s Drafting “Likely Perjurious” Affidavit and Inserting Content with Willful Blindness to, or Knowledge of, Inaccuracy = Bad Faith — The Phrase “Abuse of Discretion Is a Nonpejorative Term of Art” (Good Quote)

Jimenez v. City of NY, 2016 U.S. App. LEXIS 21051 (2d Cir. Nov. 21, 2016): SUMMARY ORDER UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the District Court be and hereby is AFFIRMED…
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Judicial Notice on 12(b)(6) Motion: “Not All Court Records Are Equal with Respect to the Ability to Take Judicial Notice” (Good Quote) — Fact of Party’s Filing (OK) vs. Truth of Matters Asserted (Not) — Facts of Procedural History OK

Malifrando v. Real Time Resolutions, Inc., 2016 U.S. Dist. LEXIS 164497 (E.D. Cal. Nov. 29, 2016): A. Rule 12(b)(6) – Failure to State a Claim *** In ruling on a motion to dismiss filed pursuant to Rule 12(b)(6), the court …
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CT Scan Admissible/Authenticated under Same Standards as X-Rays (Best Evidence, Too) — Electronic Medical Records Authentication = Computer-Generated-Evidence & Business-Records Foundation — Silent Witness Theory

Washington v. State, 2016 Ark. App. 565; 2016 Ark. App. LEXIS 608 (2016): A jury convicted Terrance Washington of grievously injuring then three-month-old T.W. by violently shaking him. Washington was sentenced to 10 years' imprisonment. He appealed the sentencing order …
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Facebook Account Authenticated by Testimony Witness Communicated with Defendant on It & Photo on It Was Defendant — Post Authenticated by Contents and Temporal Proximity to Post Def. Admitted He Made — Printout = 1003 Duplicate (Thus, Best Evidence)

People v. Dunn, 2016 Mich. App. LEXIS 942 (Mich. Ct. App. May 12, 2016): Defendant struck and killed Benjamin Berlin with his pick-up truck at a mobile home park on October 30, 2013. Shortly before this incident, defendant posted on …
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Supreme Court — Courts May Impose “Remedial” Inherent Power Sanctions “Like Monetary Penalties or Attorney Discipline” or Ultimate Sanction of Dismissal — Dismissal Not Mandatory for Violation of False Claims Act’s Seal Requirement

State Farm Fire & Cas. Co. v. United States ex rel. Rigsby, 2016 U.S. LEXIS 7420 (U.S. Dec. 6, 2016): This case addresses the question of the proper remedy when there is a violation of the False Claims Act (FCA) …
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Privilege: Disclosure of Fact of Communications, Not Using Them as Basis for a Claim or Defense, ≠ Waiver — Plaintiff Suing Defendant & Its Law Firm Lacks Standing to Seek Disqualification of Firm, Suffers No Injury Even If It Must Pay Fees

Rich v. Bank of Am., N.A., 2016 U.S. App. LEXIS 20850 (9th Cir. Nov. 21, 2016): *   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Judith Rich and Vincent …
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Arbitration: Is Jurisdiction to Confirm an Award under the FAA Determined by Looking Through to the Underlying Dispute or Must It Arise from the Questions Presented by the Application to Confirm Itself? — Circuit Split

Reading Joint Apprenctice & Elec. Comm. v. Hiester, 2016 U.S. Dist. LEXIS 163328 (E.D. Pa. Nov. 28, 2016): I. Introduction Plaintiff Reading Joint Apprentice and Electrical Committee seeks to confirm an arbitration award it secured against Defendant Eric Hiester for…
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Rule 37(c)(1) Sanctions: Treating Physicians Who Don’t File 26(a)(2)(B) Report Limited to Opinions Formed during Treatment — Punitive Damages: Single Digit Ratios Generally Constitutional, 10-1 OK If Act Egregious, Compensatories Low

Morris v. Bland, 2016 U.S. App. LEXIS 20548 (4th Cir. Nov. 16, 2016): This appeal arises from a plaintiffs' verdict in connection with the death of David Allan Woods during his incarceration at the Hill-Finklea Detention Center ("HFDC") in South…
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Texts Authenticated by Fact They Reflect They Came from Sender & Bore Defendant’s Nickname & One Came with His Photo, Evidence Phone Number Was Defendant’s and by the Contents of the Messages

Reyes-Mendoza v. State, 2015 Md. App. LEXIS 388 (Ct. Spec. App. Sept. 29, 2015): On January 31, 2014, a jury in the Circuit Court for Prince George's County convicted Marvin Reyes-Mendoza of attempted first degree murder and related crimes in…
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Venue — Internet Acts Occur Where Effects Felt — Permissive Forum Selection Clause Doesn’t Require § 1404 Transfer — Does § 1391(b)(2)’s “Events or Omissions Giving Rise to the Claim” Refer Only to Def’s Acts (Circuit Split)

Volks USA Inc. v. A2 Hosting, Inc., 2016 U.S. Dist. LEXIS 159595 (C.D. Cal. Nov. 16, 2016): I. INTRODUCTION On June 15, 2016, Volks USA, Inc. ("Volks") filed this action against A2 Hosting Inc. ("A2"). On September 1, 2016, plaintiff…
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Recent Articles

RICO and Injunctions: (1) State Court Actions Designed to Perpetuate and Monetize a RICO Violation Are Enjoinable under RICO, Even Though They Are Not Themselves Alleged to Be Predicate Acts [Note: Noerr Pennington Applies in RICO Actions] — (2) Although Civil RICO’s Text and Legislative History Fail to Reveal Any Intent to Override the Provisions of the Federal Arbitration Act, Arbitrations Are Enjoinable Under the “Effective Vindication” Doctrine Where They Operate As a Prospective Waiver of a Party’s Right to Pursue Statutory RICO Remedies — (3) Arbitration Findings May Be Given Collateral Estoppel Effect in a Civil RICO Action — (4) Injunction of Non-Corrupt State Court Litigations That Furthers a RICO Violation Are Enjoinable Under the Anti-Injunction Act’s “Expressly Authorized” Exception — (5) “The Irreparable Harm Requirement Is The Single Most Important Prerequisite For The Issuance Of A Preliminary Injunction” (Good Quote) — (6) When Injunction Is Based on “Serious Questions on the Merits” Rather Than “Likelihood of Success,” Court May Rely on Unverified Pleadings and Attached Exhibits to Assess the Merits, Unless the Opponent Has Raised Substantial Questions (Here, the Opponent Failed to Request an Evidentiary Hearing) — (7) Whether Amended Pleading Moots An Appeal Turns on Whether It Materially Changes the Substantive Basis for the Appeal — (8) Meaning of “In That” (“Used To Introduce A Statement That Explains Or Gives More Specific Information” About A Prior Statement)

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

Archives
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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