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 — Are Attorney’s Fees for Lawyer Not Admitted Pro Hac Vice Recoverable? (Circuit Split) — Only Paralegal Tasks Traditionally Performed by Lawyers Generate Recoverable Fees — Local Rates Govern

Warder v. Shaw Grp., Inc., 2016 U.S. Dist. LEXIS 81822 (E.D. La. June 23, 2016): On March 16, 2016, this Court heard oral argument on Shaw Environmental, Inc.'s Second Motion to Compel [Doc. #200] and Shaw Environmental, Inc.'s Motion for…
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Arbitration — Is It for the Court or Arbitrators to Decide Whether Claim Can Proceed as a Class Claim? — Circuit Split — Incorporation of AAA Rules Dictates Conclusion That Arbitrators Decide

III. Availability of Class Arbitration Hedrick v. BNC Nat’l Bank, 2016 U.S. Dist. LEXIS 64679 (D. Kan. May 16, 2016): Plaintiff argues that the question of whether his claim can proceed to arbitration as a class claim is a procedural…
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Facebook Admissibility — Reversible Error to Exclude Printout of Authenticated Facebook Messages Even Though Testimony about Them Was Permitted — A Basic Principle of Evidence Law Is That What Is Relevant Is Generally Admissible (Good Quote)

People v. Nunn, 2016 IL App (3d) 140137-U; 2016 Ill. App. Unpub. LEXIS 957 (Ill. Ct. App. May 16, 2017): [*P1]  Held: In a felony murder case in which defendant claimed that the trial court erred in refusing to admit…
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Supreme Court: RICO — § 1962(b) & (c) Extend Extraterritorially ((a) Maybe Not, (d) Maybe So), Depending on Predicates, But Civil Claim Requires Domestic Injury —- Locus of Enterprise Irrelevant; Pattern Is Determinative

RJR Nabisco, Inc. v. European Community, 2016 U.S. LEXIS 3925 (U.S. June 201, 2016): The Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§1961-1968, created four new criminal offenses involving the activities of organized criminal groups in relation to…
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Email Admissibility: Where Partnership Agreement Requires Unanimity to Sue, Email Exchange Is Inadmissible to Prove What Was Said at Meeting But Admissible to Prove Up the Transaction Represented by the Emails Themselves — I.e., Verbal Act

A partnership agreement between two persons provided that no lawsuit would be maintained without the approval of both. Over the objection of one, the other brought a lawsuit in the name of the partnership against third parties, who now move…
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Bankruptcy Court May Issue § 1927 Sanctions (Circuit Split); $207K for Delaying Distribution, Eroding Estate; Sanctions from Complaint on OK; Objective Standard Used; Underlying Claim Can Be Legit; No Offset for Client Payment; Specificity Excused

In re Royal Manor Mgmt., Inc. (Grossman v. Wehrle), 2016 U.S. App. LEXIS 11018 (6th Cir. June 15, 2016): Dennis Grossman, an attorney who represented claimants pursuing a non-priority unsecured proof of claim in jointly administered Chapter 11 bankruptcy cases, …
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$1.5 Million § 1927 / Inherent Power Sanction Reversed — Claim Not Frivolous If Court of Appeals Previously Remanded to Allow Plaintiffs to Amend Complaint — No Evidence of Improper Purpose to Extract Settlement (Why Else Do People Sue?)

U.S. ex rel. Lee v. Corinthian Colleges, 2016 U.S. App. LEXIS 10455 (9th Cir. June 9, 2016): In case number 13-55700, Nyoka Lee and Talala Mshuja ("Relators") appeal the district court's dismissal of their amended complaint alleging violations of the …
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Inherent Power — Dismissal: Court Must Consider Lesser Sanctions & the Misconduct Must Interfere with the Rightful Decision of the Case — Default: Circuit’s Factors for Lifting Trump Local Rule Criteria

Figueroa v. Cnty. of L.A., 2016 U.S. App. LEXIS 10555 (9th Cir. June 10, 2016):  Sergeant Gonzalez appeals from the district court's denial of his motion for relief from default and the defendants appeal from the district court's grant of…
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Recent Articles

Rule 37 Default Judgment Sanction: (1) Default Judgment Appropriate Only As a Last Resort, When Less Drastic Sanctions Would Not Ensure Compliance with the Court’s Orders — (2) Default Judgment Sanction Requires Willful or Bad Faith Failure to Obey Discovery Order — (3) Fugitive Defendant’s Failure to Appear at Court-Ordered, Remote Deposition Despite Court Warning That Sanctions Could Follow Disobedience Warrants Default Judgment — (4) District Court Afforded Wide Discretion in Interpreting Its Own Orders — (5) Filing a Notice of Appeal from a Non-Appealable Order (Here, a Discovery Order) Does Not Deprive the District Court of Jurisdiction over the Case

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.”

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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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