Joseph Hage Aaronson

Good Quotes: In Pleading, As in Many Aspects of Life, Quality Matters More Than Quantity — Plaintiffs’ Unwieldy, Everything-But-the-Kitchen-Sink Approach — Rule 9(b) Does Not Permit Us to Assemble…Disjointed Facts into a Collage

Lawrie v Ginn Dev. Co., LLC, 2016 U.S. App. LEXIS 13706 (11th Cir. July 28, 2016): In pleading, as in many aspects of life, quality matters more than quantity. Plaintiffs in this lawsuit have tried to plead a cause …

Appeals — TRO Appealable Only If It Decides Merits of the Case or Is Equivalent to Dismissal — Absolute Judicial Immunity on Injunctive Claim, Regardless of Error, Malice or Excess of Jurisdiction, Unless Jurisdiction Clearly Absent

Ellakkany v. Common Pleas Court of Montgomery Cnty., 2016 U.S. App. LEXIS 13652 (3d Cir. July 27, 2016) : Appellant Mourad Ellakkany appeals from the district court's order denying his motion for a temporary restraining order and preliminary injunction. Because…

Inherent Power/Contempt Sanctions: Premature Notice of Appeal Cured by Entry of Judgment — Bad Faith Finding “Especially Critical” When Fees Shifted

Hernandez v. City of Vancouver, 2016 U.S. App. LEXIS 14625 (9th Cir. Aug. 9, 2016): MEMORANDUM* * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Boothe, an attorney, was …

Discovery Sanctions — Attorney’s Fees under Rule 37(b)(5) — Although Phrased in Seemingly Mandatory Terms, Court’s Discretion Is Broad — Excessive Fee Request May Be Denied as “Unjust” — Standard under 12(c) = Summary Judgment

Jones v. Dufek, 2016 U.S. App. LEXIS 13549 (D.C. Cir. July 26, 2016): Tawanda Jones owed $1,050.29 to Bank of America. Bank of America sold the debt to CACH, LLC. That company hired the Law Office of David Sean Dufek…

Supreme Court Precedent & Dicta: “Federal Courts Are Not Free to Limit Supreme Court Opinions to The[ir] Facts” & Are Bound by the Supreme Court’s Considered Dicta Almost as Firmly as by Its Outright Holdings (Good Quotes)

In re: Pre -Filled Propane Tank Antitrust Litigation, 2016 U.S. App. LEXIS 15748 (8th Cir. Aug. 25, 2016) (Benton, J., dissenting): [F]ederal courts "are not free to limit Supreme Court opinions to the facts of each case." McDonough v.…

RICO: Bank + Outside Contractor, 2 Law Firms, Commc’ns & Processing Firms= AIF Enterprise—Pleading: “9(b) Does Not Require Omniscience” & 12(b)(6) Doesn’t Require “a Prima Facie Case for Each Element” (Good Quotes)

George v. Urban Settlement Servs., 2016 U.S. App. LEXIS 14934 (10th Cir. Aug. 15, 2016): Richard George, Steven Leavitt, Sandra Leavitt, and Darrell Dalton appeal the district court's dismissal of their putative class action against Urban Settlement Services, d/b/a Urban…

RICO — Operating Partner, Sons, Outside Accountants & “Ill-Defined Cluster of Other Business Entities” ≠ Enterprise — No Discrete Existence Shown by Subsets of the Group Pursuing Their Own Ends Separately

RICO — Operating Partner, Sons, Outside Accountants & “Ill-Defined Cluster of Other Business Entities” ≠ Enterprise — No Discrete Existence Shown by Subsets of the Group Pursuing Their Own Ends Separately Nelson v Nelson, 2016 U.S. App. LEXIS 15164 (8th…

Spoliation — ESI — Criminal Cases: Bad Faith Required to Dismiss Indictment (Compare Rule 37(e), Requiring Intent But Not Bad Faith to Dismiss a Civil Complaint)

United States v. White, 2016 U.S. App. LEXIS 15675 (11th Cir. Aug. 25, 2016): After a jury trial, Lancy White, Jr., appeals his convictions for using the Internet to attempt to entice a minor to engage in sexual activity, in…

Class Actions — 7th Circuit Adopts Strict Scrutiny of Disclosure-Only Settlements — Good Posner Quotes (To Be told “The Board Considered a ‘Number of Factors’ Was to Be Told Nothing”) — Disqualification of Plaintiff’s Counsel Suggested

In re Walgreen Co. Stockholder Litig. (Hays v. Walgreen Co.), 2016 U.S. App. LEXIS 14684 (7th Cir. Aug. 10, 2016) (2-1 decision; dissent forthcoming):In merger litigation the terms "strike suit" and "deal litigation" refer disapprovingly to cases in which …

Attorney-Client Privilege — Common Interest Doctrine — A “Shared Desire to See the Same Outcome … Is Insufficient” (Good Quote)

Brown v. Bank of America, 2016 U.S. App. LEXIS 15190 (9th Cir. Aug. 18, 2016): * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Larry Brown appeals the district…

Commercial Litigation and Arbitration

Good Quotes: In Pleading, As in Many Aspects of Life, Quality Matters More Than Quantity — Plaintiffs’ Unwieldy, Everything-But-the-Kitchen-Sink Approach — Rule 9(b) Does Not Permit Us to Assemble…Disjointed Facts into a Collage

Appeals — TRO Appealable Only If It Decides Merits of the Case or Is Equivalent to Dismissal — Absolute Judicial Immunity on Injunctive Claim, Regardless of Error, Malice or Excess of Jurisdiction, Unless Jurisdiction Clearly Absent

Inherent Power/Contempt Sanctions: Premature Notice of Appeal Cured by Entry of Judgment — Bad Faith Finding “Especially Critical” When Fees Shifted

Discovery Sanctions — Attorney’s Fees under Rule 37(b)(5) — Although Phrased in Seemingly Mandatory Terms, Court’s Discretion Is Broad — Excessive Fee Request May Be Denied as “Unjust” — Standard under 12(c) = Summary Judgment

Supreme Court Precedent & Dicta: “Federal Courts Are Not Free to Limit Supreme Court Opinions to The[ir] Facts” & Are Bound by the Supreme Court’s Considered Dicta Almost as Firmly as by Its Outright Holdings (Good Quotes)

RICO: Bank + Outside Contractor, 2 Law Firms, Commc’ns & Processing Firms= AIF Enterprise—Pleading: “9(b) Does Not Require Omniscience” & 12(b)(6) Doesn’t Require “a Prima Facie Case for Each Element” (Good Quotes)

RICO — Operating Partner, Sons, Outside Accountants & “Ill-Defined Cluster of Other Business Entities” ≠ Enterprise — No Discrete Existence Shown by Subsets of the Group Pursuing Their Own Ends Separately

Spoliation — ESI — Criminal Cases: Bad Faith Required to Dismiss Indictment (Compare Rule 37(e), Requiring Intent But Not Bad Faith to Dismiss a Civil Complaint)

Class Actions — 7th Circuit Adopts Strict Scrutiny of Disclosure-Only Settlements — Good Posner Quotes (To Be told “The Board Considered a ‘Number of Factors’ Was to Be Told Nothing”) — Disqualification of Plaintiff’s Counsel Suggested

Attorney-Client Privilege — Common Interest Doctrine — A “Shared Desire to See the Same Outcome … Is Insufficient” (Good Quote)

Recent Articles

§ 1927 Sanctions — Must A Lawyer Who Unreasonably and Vexatiously Multiplies Federal Court Proceedings Be Acting “As An Attorney” When Committing the Misconduct To Be Subject to Sanction under § 1927?

Rule 37 Sanctions — Unfamiliarity With Litigation Process Does Not Excuse Intentional Disregard of Court Order — Also Affirming Rule 26(g) Sanctions on Clients and Counsel for False Representations That All Responsive Documents Had Been Produced

Supreme Court: Notice of Appeal Filed After The Original Deadline But Before Reopening by The District Court Is Timely — It Relates Forward to The Date of The Order Making The Appeal Possible — Second Notice of Appeal After Reopening Unnecessary

Rule 37 Default Judgment: Second Circuit’s Four-Factor Test for Imposing Defaults and Three-Factor Test for Lifting Them

RICO: Cover-Up Within Limitations Period of Untimely RICO Violation “Was Merely A Continuation” Of The Original Injury And Could Not Be Used “As A ‘Bootstrap’ To Salvage [The] Time-Barred Claims–Declining to Apply Pinkerton Doctrine to Civil RICO Claims

Inherent Power — Circumstantial Evidence — Fact That Bad Faith May Be Shown by Establishing That Conduct Was So Egregious It Was Necessarily Committed in Bad Faith Does Not Mean That Bad Faith Must Be The Sole Explanation for The Bad Conduct

RICO Causation: Testing Labs’ Misstatements As to Alcohol Tests’ Efficacy Not Communicated to Plaintiffs’ Employers Did Not Cause Plaintiffs’ Professional Harm

Rule 37(d) Sanctions — For Failure to Serve Answers, Objections, Or Written Response to Discovery Requests — Are Not Limited to Intentional Misconduct; Even Innocent Mistakes May Be Covered

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