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

Interest on Sanctions Award Only from Time of Quantified Order — 2 Evidentiary Standards for Inherent Power Sanctions — Meaning of Abuse of Discretion, Substantially Justified (D.C. Cir.) — Sanctions Affirmable Only on Grounds Articulated Below

Parsi v. Daioleslam, 2015 U.S. App. LEXIS 2046 (D.C. Cir. Feb. 10, 2015): Following an acrimonious, three-year discovery process, the District Court awarded $183,480.09 in monetary sanctions to Appellee Seid Hassan Daioleslam for attorney's fees and expenses he accrued in…
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Text Authentication: Incoming Texts on Phone That Has Independently Been Authenticated as The Alleged Recipient’s Are Not Hearsay When They Consist of Questions or Commands, or Are Offered to Show The Fact The Statements Were Made

United States v. Ellis, 2013 WL 2285457 (E.D. Mich. May 23, 2013) (the discussion in this case concerning authentication of outgoing texts is contained in our post of February 20, 2015): II. INCOMING TEXT MESSAGES *2 Defendant also argues that…
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Text Authentication: Phone in Defendant’s Possession with Photos of Him and His Car, Contact Info for His Brother and Girlfriend, and Texts Addressed to Him Suffices to Tie Him to Outgoing Texts Absent Proof Phone Was in Another’s Possession

United States v. Ellis, 2013 WL 2285457 (E.D. Mich. May 23, 2013): Defendant Javon Franklin Ellis is charged in a three count indictment with Felon in Possession of a Firearm pursuant to 18 U.S.C. §§ 922(g)(1) and 924(e), Possession…
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Federal Court Can’t Usually Order a Receivership When No Other Relief Is Sought But May Do So Ancillary to Arbitration If Contract Permits — Can Court Issue Injunction Pending Arbitration If Not Contractually Provided? Circuit Split

Wells Fargo Bank, N.A. v. Star Texas Gasoline & Oil Dist., Inc., 2015 U.S. Dist. LEXIS 10673 (S.D. Tex. Jan. 29, 2015): Plaintiff Wells Fargo Bank, N.A. ("Wells Fargo") commenced this action by filing its Emergency Application for Appointment of …
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Sanctions — Mandatory Statutory Damages Provision (“Shall Recover”) Doesn’t Bar Inherent Power Dismissal of All Claims, Even Those Not Directly Touched by Bad Faith Misconduct — Bankruptcy Court Has Inherent Power (3d Cir.)

Theokary v. Shay (In re Theokary), 2015 U.S. App. LEXIS 1811 (3d Cir. Feb. 5, 2015): Rafail Theokary appeals the dismissal of an adversary action he commenced in the course of his Chapter 7 bankruptcy proceedings. The adversary action was …
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Class Actions — Individualized Monetary Claims Arising from Common Course of Misconduct Remain Certifiable — Comcast “Did Not Rewrite the Standards Governing Individualized Damage Considerations” (Good Quote)

Sykes v. Harris, 2015 U.S. App. LEXIS 2057 (2d Cir. Feb. 10, 2015): These consolidated appeals are taken from the September 4, 2012 class certification opinion, Sykes v. Mel Harris & Assocs., LLC, 285 F.R.D. 279 (S.D.N.Y. 2012) ("Sykes II"),…
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Text Authentication = Knowledge of Cell Password & Identifying Info in Other Texts — Contact Info for Brother, Girlfriend + Texts Addressed to Person Suffice — Incoming Texts ≠ Hearsay But Context for Outgoing — 901(b)(6) Doesn’t Apply to Texts

United States v. Benford, 2015 U.S. Dist. LEXIS 17046 (W.D. Okla. Feb. 12, 2015): A.  Text Messages Although Defendant represents that over 3,800 text messages were retrieved from the cellphone, at issue are 12 text messages exchanged on February 11,…
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Judicial Notice of Internet Evidence — Gmail Functionality as Described on Gmail Website — Note: Gmail Allows Users to Send Messages with Another of Their Email Addresses Listed Instead of Gmail

McNaughton v. de Blasio, 2015 U.S. Dist. LEXIS 13352 (S.D.N.Y. Feb. 4, 2015): Footnote 10   One accusation raised in the portion of Plaintiff's opposition brief dedicated to the alleged "deletion or falsification of emails" (Pl. Opp. 6) requires a brief…
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Sanctions for Failure to Disclose Insurance Coverage under Rule 26(a)(1) Not Waived If Not Raised in District Court — Rule 26(g)(3) Mandates Sanctions Sua Sponte for Breach of Disclosure Duty

Food Team Int’l, Ltd. v. Unilink, LLC, 2014 U.S. App. LEXIS 23732 (3d Cir. Dec. 17, 2014): D. Rule 26 Sanctions The parties dispute whether the District Court should have sanctioned Defendants and their counsel for their failure to disclose …
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Recent Articles

Rule 41(b): Five Factors to Be Weighed in Deciding Whether Dismissal Is Appropriate (Second Circuit) — Is A Finding of Bad Faith or Fault Required if Dismissal Is Without Prejudice? — Undecided If Truly Without Prejudice But It Is Required If the Without Prejudice Dismissal Will Act as a Dismissal on the Merits (Here, Because of the Statute of Limitations) — Failure To Consider A Lesser Sanction Than Dismissal Is Generally An Abuse Of Discretion

Spoliation Sanctions/Mootness: Stipulation Resolving “All Pending Discovery Disputes,” Which Are Enumerated, Does Not Moot Subsequent Sanctions Motion for ESI Spoliation — Postjudgment Sanctions Order Is Appealable When District Court Has Finally Disposed of Both Liability and Amount

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

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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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