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 Sanction of Dismissal for Repeatedly Obstructing 30(b)(6) Deposition, Flouting Court Orders: “[A] Splash of Proper Conduct Amidst an Expansive Sea of Impropriety Is Insufficient to Save [a Party] from Sanctions” — CFPB Enforcement Action Dismissed

Consumer Fin’l Prot. Bur. v. Brown, 69 F.4th 1321 (11th Cir. 2023); The Consumer Financial Protection Bureau (“CFPB”) is not exempt from the rules of discovery. Nonetheless, the CFPB tried to bring a wide-ranging civil lawsuit against 18 defendants without…
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Rule 37(c)(1) Sanctions — Award of Excess Expenses Incurred in Deposing Late-Disclosed Expert Witness on Eve of Trial — Argument That Late Disclosure = Harmless Error Because Same Expenses Would Have Been Incurred Earlier Rejected — Late Disclosure “Made The Matter Much More Urgent, Time Consuming And Expensive As Trial Loomed Less Than A Month Away”

McDowell v. Livonia Hotel Bus., Inc., 2023 U.S. App. LEXIS 17819 (6th Cir. July 11, 2023): This civil suit arises out of an armed robbery that took place at a motel in Livonia, Michigan. Plaintiffs, Raymond McDowell and Taj Dorsey,…
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Rule 37 and Inherent Power Sanctions – While Sanctions Are Reviewed for Abuse of Discretion, District Court’s Invocation of Its Inherent Power Is Reviewed De Novo — Due Process Violated by Failure to Apprise Individuals that They Were Personally at Risk of Monetary Sanctions—That Sanctions Motion Sought Sanctions Against Corporation “Or Others” Insufficient — Post-Sanctions Opportunity to Be Heard Insufficient — Rule 37 Sanctions Must Be Both “Just” and “Related to the Particular ‘Claim’” — Factors Governing Litigation-Ending Sanctions (5th Circuit) — 6. What Is a “Litigation-Ending” Sanction Is A “Practical” Determination and Broader Than Dismissal with Prejudice and Default Judgment —6. What Is a “Litigation-Ending” Sanction Is A “Practical” Determination and Broader Than Dismissal with Prejudice and Default Judgment — What Is a “Litigation-Ending” Sanction Is A “Practical” Determination and Broader Than Dismissal with Prejudice and Default Judgment — Recklessness Insufficient for Case-Ending Sanction (Bad Faith Required) — Rule 37 Authorizes Joint-and-Several Liability on a Party and Its Agents —Attorney’s Fee Award Must be Calculated Using the Lodestar Process

CEATS, Inc. v. TicketNetwork, Inc., 71 F.4th 413 (5th Cir. 2023):  Opinion This consolidated appeal concerns the injunctive and monetary sanctions that the district court imposed after a company and three individuals violated the court’s protective order. The company and…
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Rule 11 — Improper Purpose — Even If Paper Filed Not Only to Vindicate Rights But Also for Some Other Purpose, Sanctions Inappropriate Unless the Other Purpose Is Undertaken in Bad Faith and Is So Excessive As to Eliminate A Proper Purpose

Columbia Gas Transmission, LLC v. Haas, 2023 U.S. App. LEXIS 19300 (4th Cir. July 27, 2023) (unpublished) PER CURIAM: *1 Affirmed by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit. In 2017, Columbia Gas Transmission…
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Sanctions: § 1927 Authorizes Only Fees Incurred “Because of” Sanctionable Conduct, Not Fees Merely Related to It — Where Responsive Brief Fails to Make Necessary Disclosure Necessitating Reply, All Costs Associated with Reply Are Awardable, Not Merely Portions Specifically Prompted by Improper Non-Disclosure — Party Appealing § 1927 Sanctions Bears Burden of Showing Error in Fee — Setting Fees Is A Matter of Rough Justice and Should Not Result in Second Major Litigation — Where Time Records Excusably Imprecise Due to Unawareness of Misconduct, Rough Estimate of Fees Allocable to Misconduct Suffices — Fees Reimbursed by Insurance Still “Incurred” Within, And Awardable under § 1927 — Law of The Case Doctrine Inapplicable, Even If Same Issue Involved, Where Different Legally Relevant Factors Are Under Consideration Or Facts Are Different

Chung v. Lamb, 73 F.4th 824 (10th Cir. 2023): After a prior remand to the district court, we review the propriety of that court’s revised award of attorney fees under 28 U.S.C. § 1927, which permits monetary sanction when…
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Spoliation Sanctions: Rule 37(e)(2)’s Intent-To-Deprive Standard Is The Same Bad Faith Standard Historically Applied In Pre- Rule 37 Spoliation Cases And Still Applied In Cases Of Non-Electronic Spoliation — Prejudice To The Defendant Need Not Be Shown Under Rule 37(b)(2) — Even Though Litigation Hold Issued, Bad Faith Reasonable Inferred From Failing To (i) Back Up Text Messages, (ii) Educate Recipients About Litigation Hold, (iii) Collect Cell Phone Data For 7 Months, And (iv) Suspend Policy Of Wiping Data — No Affirmative Act Is Required To Sustain A Finding Of Bad Faith Based On Circumstantial Evidence, Either Under Rule 37(e) Or Bad Faith Case Law

Skanska United States Civil Se. Inc. v. Bagelheads, Inc., 2023 U.S. App. LEXIS 19942 (11th Cir. Aug. 2, 2023): *1 Hurricane Sally hit Pensacola Bay with a vengeance in September 2020, and 28 barges moored in the Bay were not…
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Post-Judgment Sanctions — Circuit Split: District Court Lacks Jurisdiction Over Motion for § 1927 Sanctions Made After Appellate Mandate Issues (Appears to Require Motion Prior to Filing of Notice of Appeal) — Post-Mandate Motion Can Seem Like an Ambush of a Losing Party Prepared to Accept a Loss Without a Pending Sanctions Motion — In Accord With All Circuits: District Court Retains Jurisdiction To Entertain Motion To Impose Inherent Power Sanctions Made After Mandate Issues — When a Number of Other Circuits Reject a Circuit’s Position, and No Other Circuit Accepts It, The Interest in Avoiding Inter-Circuit Conflict May Justify Abandoning The Position

Feehan v. Evers, 2023 U.S. App. LEXIS 19901 (7th Cir. Aug. 2, 2023) (unpublished) ORDER On December 1, 2020, plaintiff-appellee William Feehan filed this suit in the United States District Court for the Eastern District of Wisconsin. The complaint sought …
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Inherent Power Sanctions (Criminal Case): Punitive Sanctions Awardable Even If Some Non-Frivolous Arguments Are Combined With The Frivolous Arguments — Is Bad Faith A Prerequisite for Inherent Power Sanctions Other Than Attorney Fees? — Factors In Assessing Financial Penalties Include Ability To Pay And Likelihood That Financial Penalty Will Have Some Deterrent Effect

United States v. Akers, 2023 U.S. App. LEXIS 20142, *1 (10th Cir. Aug. 4, 2023): *1 Montgomery Akers appeals from a district court order imposing upon him a $40,000 punitive sanction for advancing frivolous arguments and assertions in a request …
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INHERENT POWER SANCTIONS FOR INTENTIONAL SPOLIATION OF EVIDENCE: DEFAULT JUDGMENT ON LIABILITY AND CAUSATION, PRECLUSION OF CONTRIBUTORY NEGLIGENCE DEFENSE — DETERRENCE IMPORTANT DUE TO SPOLIATOR’S “DEMONSTRATED PATTERN OF ABUSE” — DUE PROCESS SATISFIED BY OPPONENT’S MOTION, WHICH PROVIDED CLEAR NOTICE OF THE FACT SANCTION WERE UNDER CONSIDERATION, THE REASONS WHY, AND THE TYPES OF SANCTIONS BEING CONSIDERED

Anderson v. BNSF Rwy. Co., 2023 WL 4418221 (S.D. Iowa July 6, 2023): INTRODUCTION *1 In this Federal Employers’ Liability Act case, Plaintiff Bradley A. Anderson alleges he was injured when he hit his head on a sign placed too …
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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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