Joseph Hage Aaronson

Class Actions — Impact of 2003 Amendment to Rule 23 Allowing Parties to Settle or Dismiss without Judicial Approval: Court Must Grant Stipulated Motion to Dismiss (Here, without Prejudice)

Sample v. Qwest Commc’ns Co., LLC, 2012 U.S. Dist. LEXIS 70927 (D. Ariz. May 22, 2012): On May 26, 2011, the parties to this action submitted a Joint Motion for Certification of Settlement Class, Preliminary Approval of Class-Action Settlement, and…

Does Rule 9(b) Apply to Claims of Negligent Misrepresentation? Circuit Split

From W&W Steel, LLC v. BSC Steel, Inc., 2012 U.S. Dist. LEXIS 69432 (D. Kan. May 18, 2012): Footnote 14. See D&K Ventures, LLC v. MGC, LLC, No. 09-2084, 2009 WL 1505539, at *8 (D. Kan. May 27, 2009) (recognizing…

Text Messages Insufficiently Authenticated Where Cell Owner Did Not Author All Texts on Her Phone and No Corroborating Evidence Was Offered to Show Her Authorship of Messages at Issue

Commonwealth v. Koch, 2011 PA Super 201, 39 A.3d 996 (Pa.Super. 2011): Appellant alleges first that the trial court erred in admitting text messages into evidence that were not properly authenticated. Appellant insists there was no evidence substantiating that she…

Supremacy Clause Bars State Work Comp Statute from Preempting RICO — Fraudulent Deprivation of Work Comp Benefits (i.e., a Statutory Entitlement) = Injury to Property — State vs. Federal Law’s Role in Determining “Property”

Brown v. Cassens Transp. Co., 2012 U.S. App. LEXIS 6929 (6th Cir. April 6, 2012): We hold that the Supremacy Clause prevents the Michigan legislature from preempting a RICO remedy by declaring its worker’s compensation scheme to be exclusive of…

Can Employees Be Unretained Experts under Rule 26(b)(4)(D)? Caselaw Split — Work Product & Employees — New Evidence on Reply Waived — Failure to Produce Evidence = Adverse Inference — Good Quotes on Protective Orders, Experts, Plain Meaning

Tellabs Operations, Inc. v. Fujitsu Ltd., 2012 U.S. Dist. LEXIS 60749 (N.D. Ill. May 1, 2012): In January 2008, Fujitsu Limited (“Fujitsu”) filed suit against Tellabs Operations, Inc. (“Tellabs”) in the Eastern District of Texas, charging it with infringing three…

Emails as Business Records — Admissibility Standards

Rogers v. Oregon Trail Elec. Consumers Coop., Inc., 2012 U.S. Dist. LEXIS 65883 (D. Or. May 8, 2012): In Monotype Corp. PLC v. International Typeface Corp., the Ninth Circuit held that emails were not automatically admissible under the business records…

Attorney-Client Privilege — Ninth Circuit Rejects Selective Waiver, Even If Party Has Confidentiality Agreement with Government Agency Receiving Privileged Information

In re Pacific Pictures Corp., 2012 U.S. App. LEXIS 9691 (9th Cir. May 10, 2012): A Petitioners’ primary contention is that because Toberoff disclosed these documents to the government, as opposed to a civil litigant, his actions did not waive…

Circuit Split as to Whether District Court May Partially Transfer an Action pursuant to 28 U.S.C. § 1631

Johnson v. Mitchell, 2012 U.S. Dist. LEXIS 65934 (E.D. Cal. May 10, 2012): The Circuits are split regarding whether the language of 28 U.S.C. § 1631 permits federal courts to partially transfer an action. See United States v. County of…

Motion to Dismiss for Lack of Standing Properly Brought under Rule 12(b)(1) and Decided under 12(b)(6) Standards — Elements of Article III Standing

In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 2012 U.S. App. LEXIS 9832 (3d Cir. May 16, 2012): Under Fed. R. Civ. P. 12(b)(1), a court must grant a motion to dismiss if it lacks subject-matter jurisdiction to hear…

Inherent Power Sanctions — Bad Faith Requires Something More Than Mere Pursuit of Meritless Claim — 3-Part Test — Sixth Circuit Questions Whether Inherent Power to Sanction Exists in Criminal Cases

United States v. Aleo, 681 F.3d 290 (6th Cir. 2012): On April 13, 2010, Freeman filed a motion to compel. The motion requested that the court order the prosecutor to file “a formal motion, with notice to defense counsel, seeking…

Commercial Litigation and Arbitration

Class Actions — Impact of 2003 Amendment to Rule 23 Allowing Parties to Settle or Dismiss without Judicial Approval: Court Must Grant Stipulated Motion to Dismiss (Here, without Prejudice)

Does Rule 9(b) Apply to Claims of Negligent Misrepresentation? Circuit Split

Text Messages Insufficiently Authenticated Where Cell Owner Did Not Author All Texts on Her Phone and No Corroborating Evidence Was Offered to Show Her Authorship of Messages at Issue

Supremacy Clause Bars State Work Comp Statute from Preempting RICO — Fraudulent Deprivation of Work Comp Benefits (i.e., a Statutory Entitlement) = Injury to Property — State vs. Federal Law’s Role in Determining “Property”

Can Employees Be Unretained Experts under Rule 26(b)(4)(D)? Caselaw Split — Work Product & Employees — New Evidence on Reply Waived — Failure to Produce Evidence = Adverse Inference — Good Quotes on Protective Orders, Experts, Plain Meaning

Emails as Business Records — Admissibility Standards

Attorney-Client Privilege — Ninth Circuit Rejects Selective Waiver, Even If Party Has Confidentiality Agreement with Government Agency Receiving Privileged Information

Circuit Split as to Whether District Court May Partially Transfer an Action pursuant to 28 U.S.C. § 1631

Motion to Dismiss for Lack of Standing Properly Brought under Rule 12(b)(1) and Decided under 12(b)(6) Standards — Elements of Article III Standing

Inherent Power Sanctions — Bad Faith Requires Something More Than Mere Pursuit of Meritless Claim — 3-Part Test — Sixth Circuit Questions Whether Inherent Power to Sanction Exists in Criminal Cases

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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