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

Wilton Abstention — Although Court Has Discretion to Abstain If Federal Plaintiff Seeks Only Declaratory Relief, There Is a 5-Way Circuit Split If Complaint Seeks Both Coercive (Damages, Injunction) and Declaratory Relief

Rolon v. Univision TV Group, Inc., 2012 U.S. Dist. LEXIS 141019 (D. P.R. Sept 27, 2012): Univision also argues that this Court has discretion to abstain under Wilton v. Seven Falls, 515 U.S. 277 (1995), because Plaintiffs request declaratory relief.…
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Imposition of Vexatious Litigant Sanctions in Prior Case, and Earlier Judge’s Warning That Future Harassing Litigation Would Be Sanctioned, Does Not Excuse Lack of Notice Before Imposing Sanctions for New Conduct in New Case — Due Process Denied

Truong v. Nguyen, 2012 U.S. App. LEXIS 23827 (2d Cir. Nov. 20, 2012) (note: citation subject to change when headnotes added by LEXIS): Here, the district court did not provide adequate notice to Truong prior to imposing either leave-to-file or…
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Work Product Protects Consulting Expert Even If Investigation in Part for Business Reasons “Unless the Documents Would Have Been Created in Essentially Similar Form Irrespective of the Litigation” — Factors Weighing Against Discovery

Spirit Master Funding, LLC v. Pike Nurseries Acquisition, LLC, 2012 U.S. Dist. LEXIS 165334 (N.D. Ga. Nov. 20, 2012): B. Dual Purpose: Anticipation of Litigation vs. Ordinary Course of Business Pike asserts that the documents at issue here, i.e. communications…
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Expert Whose Report Is Attached to and Incorporated in Earlier Iteration of Complaint Is Subject to Deposition Even If Not Identified as Testifying Expert

In re iPhone, iPad App. Consumer Privacy Litig., 2012 U.S. Dist. LEXIS 166711 (N.D. Cal. Nov. 21, 2012): In this multi-district consolidated class action suit, Plaintiffs Isabella and Alejandro Capiro (“Capiros”) seek a protective order to prevent Defendant Apple, Inc.…
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Sanctions — Due Process Notice Requirement Unsatisfied Where Court Relied on Warnings and Sanctions Imposed in Earlier Case Because Earlier Judge Did Not Deal with the Specific Conduct in the Current Case

Truong v. Nguyen, 2012 U.S. App. LEXIS 23827 (2d Cir. Nov. 20, 2012): “Due process requires that courts provide notice and opportunity to be heard before imposing any kind of sanctions.” Schlaifer Nance & Co. v. Estate of Warhol, 194…
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Case Removable Because It “Relates to” Arbitration Is Not Necessarily “Referable” to Arbitration — Binding Non-Signatories to Arbitration — Significance of Whether Signatory or Non-Signatory Moving to Compel

Reid v. Doe Run Resources Corp., 2012 U.S. App. LEXIS 23281 (8th Cir. Nov. 13, 2012) (note: The facts of this case are excerpted in our November 21, 2012 posting) Doe Run argues that the district court erred by denying…
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Removal: New York Convention Permits Removal If Case Is “Related to” Arbitration Even If Dispute Is Not Itself Arbitrable — Issue Is Whether Arbitration “Could Conceivably Affect the Outcome of the Case” — Need Not Have Preclusive Effect

Reid v. Doe Run Resources Corp., 2012 U.S. App. LEXIS 23281 (8th Cir. Nov. 13, 2012): Doe Run Resources and its affiliates operated a smelting facility in Peru. The facility’s pollution allegedly injured the plaintiffs. A Doe Run associate, Renco,…
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Mandamus as Tool to Challenge Denial of Protection for Confidential Data — Bar Against One Lawyer’s Access Because He/She Is “Competitive Decisionmaker” for Client Not Imputed to Law Firm — Model Rules’ Imputation Rejected

In re Dell Inc., 2012 U.S. App. LEXIS 22155 (Fed. Cir. Oct. 23, 2012): This is an unusual case involving whether a bar precluding an attorney from accessing confidential information on the ground that he is a “competitive decisionmaker” must…
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Experts — District Court’s Failure to Make Gateway Determinations of Relevance and Reliability Mandates Reversal — “The Decision To Admit Or Exclude Expert Testimony Is Often The Difference Between Winning And Losing A Case” (Good Quotes)

Barabin v. AstenJohnson, Inc., 2012 U.S. App. LEXIS 23528 (9th Cir. Nov. 16, 2012): Compliance with Rule 702 is gauged by the district court’s assessment of the reliability of the proffered expert testimony. See Daubert, 509 U.S. at 589. Specifically,…
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Recent Articles

RICO Causation: Parents of Children with Disabilities Deprived In-Person Education and Services during the Pandemic Were Not Causally Injured by Teachers’ False Assurances to Federal Authorities That IDEA-Complaint Policies Were in Place, Which Caused Funds to Issue But Not to the Benefit of the Disabled Children — Damages Too Indirect — Proper Plaintiff Is U.S. Government — Private Injunctive Relief Under RICO Uncertain in Third Circuit

Sanctions: Rule 37(b)(2) Dismissal — Sixth Circuit Factors

Inherent Power Sanctions — Extrajudicial Misconduct: Sanctions Power Extends to Conduct Intended to Sabotage Court’s Ability to Adjudicate the Case Before It, Here, By Commencing State Court Actions Seeking to Enjoin the Federal Plaintiffs from Proceeding with Their Federal Litigation — Sanctions Fee Awards: The Factors Used For Calculating A Fee Award To A Prevailing Party Do Not Govern — Under Goodyear, the Relevant Inquiry Is Whether There Is A Sufficient Causal Link Between The Sanctioned Misconduct And The Fees Awarded

RICO: Members of Association-in-Fact Enterprise Must Act with a Common Purpose—Mere Allegation That Various Defendants Agreed at Different Times to Engage in Various Fraudulent Schemes Does Not Plausibly Support the Essential Inference, That They Acted with s Sufficiently Common Purpose

RICO Causation: (1) State’s Misrepresentation to Federal Government That It Was Providing Plaintiffs with Mandated Special Education Did Not Cause Plaintiffs’ Injury Because The Failure to Provide The Education Was Not Caused by the Fraud on the Federal Government — (2) The Three Factors for Assessing RICO Causation — (3) Limits of the Second Circuit’s Decision in Alix v. McKinsey That Causation Can Be Established Where A Fraud On The Judiciary “Or Other Governmental Entity” Resulted In A Resource Going To Someone Less Deserving

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

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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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