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

Texts Authenticated by Recipient’s Testimony, Messages That Included Photo of Sender, ID’ed a Person Both Knew & by Evidence Phone Was Used to Contact Others Who Knew Sender and That Address for Phone Was a Former Address of Sender’s

Jackson v. State, 2015 Tex. App. LEXIS 6126 (Tex. App. June 17, 2015):   II. MOTION TO SUPPRESS In his first issue, Jackson contends the trial court abused its discretion in denying his motion to suppress certain cell phone records and …
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Rule 37 Sanctions — Dismissal for Repeated Failure to Appear for Court-Ordered Deposition — 4-Factor Test (2d Circuit) — While Pro Se Is Due Special Solicitude, He or She Is Not Immune to Dismissal, If Willfulness, Bad Faith or Fault Is Found

Davis v. Citibank, N.A., 2015 U.S. App. LEXIS 10524 (2d Cir. June 23, 2015): If a party fails to attend its own deposition, the district court may, inter alia, dismiss the action and [*2]  order the party to pay reasonable …
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Rule 11 — Failure to Issue Order to Show Cause Bars Sua Sponte Sanction — No Bad Faith Required in 6th Circuit for § 1927 Sanctions; Recklessness Enough, Even Absent “Conscious Impropriety”

Oakstone Community School v. Williams, 2015 U.S. App. LEXIS 10143 (6th Cir. June 12, 2015): What began as a case about a child's education has needlessly devolved into a dispute about attorney's fees and unjustified sanctions. After prevailing in an…
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Spoliation — Bad Faith Required for Adverse Inference Instruction in Eleventh Circuit — Speculation Insufficient to Prove Bad Faith — Judicial Notice of Internet Evidence — Reference Book (Oxford English Dictionary)

Horton v. Maersk Line, Ltd., 2015 U.S. App. LEXIS 3033 (11th Cir. Feb. 27, 2015): On the morning of March 18, 2011, plaintiff-appellant John Horton ("Plaintiff"), a longshoreman, was working aboard the M/V Sealand Champion when a crane operator, placing…
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§ 1927 Sanctions — Due Process — Failure to Grant Oral Argument = Abuse of Discretion Where Different Judges Presided over Case, Significant Sanction Imposed and Given Unspecified “Particulars of This Action”

Smith v. Banner Health Sys., 2015 U.S. App. LEXIS 10191 (9th Cir. June 17, 2015): Smith appeals from the district court's order granting summary judgment in favor of defendants Banner Health Systems and its employee Dr. Scott Elton (collectively "Banner"),…
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Rule 11 Sanctions — Refiling Impertinent, Scandalous Allegations, Despite Warning, Violates 11(b)(1) — Refiling and Issuing Multiple Subpoenas Suggests Improper Purpose — No Rule 38 Sanctions If Chances Are Merely Slim

Marceaux v. Lafayette City-Parish Consolidated Govt., 2015 U.S. App. LEXIS 9540 (5th Cir. June 8, 2015): Plaintiffs are fifteen current and former officers of the Lafayette Police Department suing the local government, the department, and other officers and city officials…
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1st Circuit: Bankruptcy Court Has Inherent Power to Sanction (Circuit Split) — Bad Faith Not Always Needed — Punitive Non-Contempt vs. Contempt — Factors in Evaluating Court’s Discretion in Imposing Sanctions

In re Charbono (Charbono v. Sumski), 2015 U.S. App. LEXIS 10053 (1st Cir. June 15, 2015): This appeal poses the question of whether a bankruptcy court has inherent power to sanction parties for noncompliance with court orders. We hold that …
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Authentication of Map of Locations Based on Cell Phone Signals to Towers — Expert Testimony re Technology Plus Circumstantial Evidence Linking Phones to Owners at Relevant Times — Use of Names vs. Phone Numbers on Exhibit Upheld

United States v. Reed, 780 F.3d 260 (4th Cir. 2015): Four masked men committed a string of robberies around Alexandria and Arlington, Virginia, in December 2012. During the third and final robbery, the thieves took $60,411.15 from a credit union. …
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Sanctions — Appealability — Judicial Referral of Attorney Conduct to a Disciplinary Committee, Absent a Specific Finding of Misconduct by the Court, Is Not a Sanction and Is Not Appealable

Zente v. Credit Mgmt., LP, 2015 U.S. App. LEXIS 10063 (5th Cir. June 15, 2015): Albeit in the name of Plaintiff-Appellant Joseph Zente, his attorney, Sergei Lemberg, appeals the district court's referral of his conduct to the disciplinary committee 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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