Joseph Hage Aaronson

Rule 11 and § 1927 Sanctions Properly Denied Where Misconduct Occurred in Other Actions and Is Unrelated to Opponent’s Conduct in Pending Case

Barksdale v. United States, 2014 U.S. App. LEXIS 21404 (Fed. Cir. Nov. 10, 2014): Christopher Scott Barksdale ("Barksdale") appeals the decisions of the United States Court of Federal Claims ("Claims Court") dismissing his complaint for lack of jurisdiction and denying…

Arbitration — Theories for Compelling Non-Parties to Arbitrate — All Governed by Applicable (State) Law — Rule 56 Standards Govern Motion to Compel Arbitration — Argument Raised Initially at Oral Argument, Like Footnote in Reply Brief, Waived

Flinkote Co. v. Aviva PLC, 2014 U.S. App. LEXIS 19272 (3d Cir. Oct. 9, 2014): We exercise plenary review over the District Court's order on a motion to compel arbitration. Quilloin v. Tenet Healthsystem Phila., Inc., 673 F.3d 221, 228…

Website Authentication: More Needed Than Lay Witness’s Testimony Site Is Nationally Recognized or Site’s Self-Serving Statements — Proof of Rx Drugs Requires More Than Visual Comparison to Web Pix — Limits on Reliability of Physicians’ Desk Ref

People v. Hard, 2014 Colo. App. LEXIS 1676 (Colo. Ct. App. Oct. 9, 2014): First, although the People argue that information from Drugs.com is reliable because Trooper Hancey testified that Drugs.com is "nationally recognized" and that law enforcement officials rely …

Securities / Fraud / Disclosure – “Just because something is disclosed doesn’t mean it wasn’t lost in a mass of detail” (Good Quotes from FT)

From Financial Times, Lex column, Nov. 13, 2014 (http://www.ft.com/intl/cms/s/3/97e10c30-6a86-11e4-a038-00144feabdc0.html?ftcamp=crm/email/20141113/nbe/LexEurope/product&siteedition=intl#axzz3Iwj0ZhG0): Financial reporting: short is sweet Be honest, be clear, be done with it. As columnists know, a word limit focuses the mind and helps the reader. Lehman Brothers’ 2007 annual report…

Discovery — Scrubbing Departing Employees’ Computers before Litigation Is Foreseeable ≠ Spoliation — It Is an Obvious Truism That a Court Should Not Enter an Order Compelling a Party to Produce Documents That Don’t Exist (Good Quote)

Wells v. JPC Eqestrian, Inc., 2014 U.S. Dist. LEXIS 156407 (M.D. Pa. Nov. 4, 2014): A. Email The plaintiffs first contend that the defendants have failed to produce relevant emails in response to their original discovery requests which sought emails…

Sanctions — 60-Day Suspension for Falsely Representing Motion Was Unopposed — Inherent Power to Suspend or Dismiss Counsel (No Bad Faith Mentioned or Needed) — Criminal Contempt Protections and Rule 11 Irrelevant

In re Grodner, 2014 U.S. App. LEXIS 20976 (5th Cir. Nov. 3, 2014): Attorney Donna U. Grodner challenges her sixty-day suspension from practicing in the Middle District of Louisiana. Finding that none of the numerous arguments she raises to challenge…

Class Actions — Do Absent Class Members Forfeit American Pipe Tolling by Filing Suit before Certification Is Denied? — Circuit Split, with 3 Recent Circuit Decisions — and This District Court — Saying No

In re BP plc MDL Secs. Litig., 2014 U.S. Dist. LEXIS 138920 (S.D. Tex. Sept. 30, 2014): 1. The statute of limitations was tolled by the filing of the related federal class action. [*6] As described by the Court in…

Experts — 26(e)(2) Supplementation of Report — Factors Guiding Substantially-Justified or Harmless Analysis (10th Circuit) — Inability to Catch Expert “Flat-Footed” at Deposition Is Not a Type of Prejudice that Justifies Exclusion under 37(c)(1)

Gillum v. United States, 309 F. App'x 267 (10th Cir. 2009): In this Federal Tort Claims Act medical malpractice action, Kathleen Gillum, as the surviving spouse and executor of the estate of Donald Gillum, appeals the district court's exclusion of…

Mere Existence of Issue of First Impression Insufficient to Warrant 1292(b) Interlocutory Appeal — If Questions of First Impression Alone Were Sufficient, Courts of Appeals Would Be Besieged with Piecemeal Appeals — Good Quote

Tavares v. S-L Dist. Co., 2014 U.S. Dist. LEXIS 146414 (M.D. Pa. June 12, 2014): Initially, we note that neither the Third Circuit nor Pennsylvania courts have addressed the particular choice-of-law issue before us. However, that the issue is one …

Motion to Dismiss May Be Granted without Reaching Merits If It Is Unopposed — The Failure to Respond Is Viewed as a Concession or Dismissal Is Deemed an Appropriate Sanction for Failure to Respond

Blount v. Northrup Grumman Info. Tech. Overseas, Inc., 2014 U.S. Dist. LEXIS 146407 (E.D. Va. Oct. 14, 2014): Before considering the merits of this motion, this Court must first address Blount's untimely filing. Blount's opposition was approximately one month late.…

Commercial Litigation and Arbitration

Rule 11 and § 1927 Sanctions Properly Denied Where Misconduct Occurred in Other Actions and Is Unrelated to Opponent’s Conduct in Pending Case

Arbitration — Theories for Compelling Non-Parties to Arbitrate — All Governed by Applicable (State) Law — Rule 56 Standards Govern Motion to Compel Arbitration — Argument Raised Initially at Oral Argument, Like Footnote in Reply Brief, Waived

Website Authentication: More Needed Than Lay Witness’s Testimony Site Is Nationally Recognized or Site’s Self-Serving Statements — Proof of Rx Drugs Requires More Than Visual Comparison to Web Pix — Limits on Reliability of Physicians’ Desk Ref

Securities / Fraud / Disclosure – “Just because something is disclosed doesn’t mean it wasn’t lost in a mass of detail” (Good Quotes from FT)

Discovery — Scrubbing Departing Employees’ Computers before Litigation Is Foreseeable ≠ Spoliation — It Is an Obvious Truism That a Court Should Not Enter an Order Compelling a Party to Produce Documents That Don’t Exist (Good Quote)

Sanctions — 60-Day Suspension for Falsely Representing Motion Was Unopposed — Inherent Power to Suspend or Dismiss Counsel (No Bad Faith Mentioned or Needed) — Criminal Contempt Protections and Rule 11 Irrelevant

Class Actions — Do Absent Class Members Forfeit American Pipe Tolling by Filing Suit before Certification Is Denied? — Circuit Split, with 3 Recent Circuit Decisions — and This District Court — Saying No

Experts — 26(e)(2) Supplementation of Report — Factors Guiding Substantially-Justified or Harmless Analysis (10th Circuit) — Inability to Catch Expert “Flat-Footed” at Deposition Is Not a Type of Prejudice that Justifies Exclusion under 37(c)(1)

Mere Existence of Issue of First Impression Insufficient to Warrant 1292(b) Interlocutory Appeal — If Questions of First Impression Alone Were Sufficient, Courts of Appeals Would Be Besieged with Piecemeal Appeals — Good Quote

Motion to Dismiss May Be Granted without Reaching Merits If It Is Unopposed — The Failure to Respond Is Viewed as a Concession or Dismissal Is Deemed an Appropriate Sanction for Failure to Respond

Recent Articles

nherent Power Sanction of Dismissal — Preponderance of the Evidence Burden of Proof, Not Clear and Convincing Evidence (7th Circuit)

§ 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

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