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

(1) Experts: 701 vs. 702 Testimony — Business Owner/Officer May Offer Lay Opinion of Value or Future Profits Based on Particularized Knowledge Derived from Position And Straightforward, Common Sense Calculations — (2) CFO’s Testimony Based on Previous Professional Experience Creating Budget Forecasts and Utilizing Complex, Sophisticated Formulas Improperly Admitted Under 701, Constituted 702 Testimony — (3) Contract Interpretation: A Broad Heading Cannot Override the Specific Language of a Particular Clause — (4) If Appellant Does Not Challenge Trial Court’s Alternate Ground for Its Ruling, Appellate Court May Affirm

Lambland, Inc. v. Heartland Biogas, LLC, 2023 U.S. App. LEXIS 25502 (10th Cir. Sept. 27, 2023) (unpublished) ORDER AND JUDGMENT* At its most basic level, this case involves a breach of contract and the resulting damages. But to determine…
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Contract Formation Online — When Is A Customer Bound by Unread/Unclicked-On Terms And Conditions? — 2-Part Test: Inquiry Notice & Unambiguous Manifestation of Consent — What Is A “Reasonably Prudent” Internet User? — When Is That Person on Inquiry Notice? — What Constitutes An Unambiguous Manifestation of Consent?

Edmundson v. Klarna, Inc., 2023 U.S. App. LEXIS 29285 (2d Cir. Nov. 3, 2023): Defendant-appellant Klarna, Inc. (“Klarna”) provides a “buy now, pay later” service that allows shoppers to buy a product and pay for it in four equal installments…
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Rule 37 Sanctions – Default Judgment: (1) 4-Factor Test for Litigation-Ending Sanctions for Discovery Abuse (Fifth Circuit); (2) Deletion and Manipulation of Source Code As Spoliation; (3) Detailed Consideration of Lesser Sanctions Excused Where It Is Clear Lesser Sanctions Would Have Been Futile—Especially Where the Misconduct Was Egregious And Repeated, And There Has Been A Warning; (4) Giving A Second Or Third Chance Before Imposing Litigation-Ending Sanctions Itself Amounts to a Lesser Sanction; (5) A Default Judgment Is Sometimes The Only Practicable Solution; (6) Where Party Appealing Denial of Rule 60(b) Motion for Reconsideration Failed to Object to the R&R Adopted by the District Court, Appellate Review Is for Plain Error Only

Calsep A/S v. Dabral, 84 F.4th 304 (5th Cir. 2023): One company, alleging that another company stole the code for its software product, filed a lawsuit. During discovery, the alleged thief destroyed electronic evidence. That was a violation of several…
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Section 1927 Sanctions: (1) While Review Is Generally Abuse-of-Discretion, It Is De Novo When Exercise of Discretion Depends on a Purely Legal Issue; (2) 4. Survival on Rule 56 and 52 Motions On The Same Grounds Used Later To Sanction Plaintiffs’ Counsel Shows That They Didn’t Pursue Their Claims Recklessly; (3) Absent a Misrepresentation to the Court, Parties May Rely on Success in Rule 56 and 52 Motions As Indicators That Their Claims Were Objectively Reasonable and Suitable for Trial, Although Court Notes That Survival on Rule 52 and 56 Motions Doesn’t Automatically Preclude § 1927 Sanctions; Court Cannot Impose § 1927 Sanctions For Failing To Sustain Burden Of Proof Where Court Accepted That Quantum Of Evidence As Sufficient On Summary Judgment; Survival on Daubert Motion Precludes § 1927 Sanctions for Continued Reliance on Expert to Proceed to Trial

Obeslo v. Empower Capital Mgmt., 2023 U.S. App. LEXIS 28812 (10th Cir. Oct. 31, 2023): *1 Two law firms that represented Plaintiffs in this litigation, Schlichter Bogard & Denton LLP (“SBD”) and Schneider Wallace Cottrell Konecky LLP (“SWCK”), appeal the…
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Inherent Power Sanctions: (1) Court May Enter Dismissal on the Merits Even If It Lacks Subject Matter Jurisdiction — (2) Bad Faith or Willful Abuse of Judicial process Required in Fifth Circuit — (3) Opposing Party Need Not Be Prejudiced — (4) All Aspects of Inherent Power Sanctions Award, Including Invocation of Power, Reviewed for Abuse of Discretion — (5) District Court Must Sufficiently Articulate Reasons for Sanctions Award

Ben. E. Keith Co. v. Dining All., Inc., 2023 U.S. App. LEXIS 24114 (5th Cir. Sept. 12, 2023) Opinion *1 Although modern business entities may organize in complex ways unknown in the past, the criteria for diversity of citizenship jurisdiction…
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Inherent Power Sanctions — (1) Deeming Facts Admitted for Violations of Discovery Orders by Corporate Defendants, Leading to Entry of Judgment Against Them and Associated Individual Defendant — (2) May Issue Both Case-Terminating and Financial Sanctions for Same Discovery Misconduct (Concealing Financial Information) — 9th Circuit Factors for Terminating Sanctions

URS Holdings, Inc. v. Topolewski, 2023 U.S. App. LEXIS 24660, 2023 WL 6058825 (9th Cir. Sept. 18, 2023) (unpublished): MEMORANDUM* *1 Defendant Gary Topolewski and Defendants Morrison Knudsen Corporation, Morrison-Knudsen Company, Inc., Morrison-Knudsen Services, Inc., and Morrison-Knudsen International…
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Even If Statutory Basis for Injunction Is Later Withdrawn by Supreme Court, That Does Not Excuse Contempt, Which The District Court Has Inherent Power to Sanction (Here, By a $40 Million Fine)

FTC v. Nat’l Urological Grp., Inc., 2023 U.S. App. LEXIS 22823 (11th Cir. Aug. 29, 2023): Hi-Tech Pharmaceuticals, Inc., Jared Wheat, and Stephen Smith appeal the district court’s denial of their request for relief from contempt sanctions. Nearly twenty years…
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Recent Articles

RICO: Distinctiveness Issues Most Likely to Appear When The Enterprise Is An Entity Capable of Being Sued, Like A Corporation

Supreme Court: RICO: (1) Injuries to Business or Property That Derive from a Personal Injury Are Recoverable — (2) “Injury” Is Interchangeable in Meaning with “Harm” And Other Terms Connoting Loss — (3) “The Clayton Act and § 1964(c) Are Not ‘Interchangeable’” (Good Quote)— (4) (4) “You Can’t Replace Something With Nothing” (Good Quote) — (5) The Recoverable Economic Harm Flowing from Personal Injuries, Like All Other Recoverable RICO Harm, Must be Direct — (6)” Harm Resulting from a Single Tort Is Not a Ticket to Federal Court for Treble Damages” (Good Quote)

FRAP 38 Sanctions: Eleventh Circuit Generally Declines to Impose FRAP 38 Sanctions on Pro Se Appellants Absent a History of Frivolous Litigation or an Explicit Warning

Inherent Power Sanctions for Bad Faith in (1) Misrepresenting Patent Ownership in Amended Complaint and (2) Failing to Supplement Discovery Responses to Rectify This after the Discovery Period Had Closed, Both of Which Led to Continued Litigation After One Plaintiff Had Lost Standing — The Duty To Supplement Discovery Responses under Rule 26(e) Continues Even After The Discovery Period Has Closed — Use of Inherent Power to Sanction Violation of Local Rules That Lack Sanctions Provisions (Sanction Reversed on Other Grounds)

Paul Weiss Did The Right Thing

RICO: Unsettled Whether Legal Expenses Constitute Injury to Business or Property in Ninth Circuit — Leave to Amend Must Be Granted Unless 1 or More of 5 Factors Is Present — Request for Judicial Notice of Wikipedia Articles Fails to Satisfy The Standards Fed. R. Evid. 201

FRAP 38 Sanctions Denied Without Prejudice for Lack of Separate Motion

Rule 26(g)(3) Sanctions Are Mandatory If Certification Violated — No Bad Faith Required — No Premotion Duty to Confer under Rule 26(g) [Beware of Local Rules] — Rule 26(g)(3) Attorney’s Fee Award for Unreasonable Investigation Before Serving Unreasonable Responses to Document Requests — Abuse of Discretion Review

“Parties Represented by Counsel May Not File Pro Se Briefs” (Good Quote)

FRAP 38 Sanctions: Until Paid, Filing Bar Imposed in All Federal Courts in The Circuit

Archives
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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