Joseph Hage Aaronson

Commercial Litigation and Arbitration

Disqualification — Where Lawyer in Firm A Is Adverse to Firm B, Solicits & Obtains Offer from Firm B Which Is Immediately Withdrawn Because Conflict Exposed, Lawyer Was Never “Associated” With Firm B, Firm B Not Disqualified

Hinker v. County of Cape May, 2020 U.S. Dist. LEXIS 6517 (D.N.J. Jan. 13, 2020): This matter having come before the Court upon the Motion [Docket Number 15] by Plaintiffs, Jonathan and Jacqueline Hinker, for an Order disqualifying the law …

Sanctions: Due Process (DP): Notice Against Firm ≠ Notice Against Lawyers — 1st Mention in Reply Brief Denies Ability to Respond — DP Reviewed De Novo — Can Firm Be Sanctioned under 26(g)(3) or 37(b)(2)(C)?

KCI USA, Inc. v. Healthcare Essentials, Inc., 2020 U.S. App. LEXIS 1616 (6th Cir. Jan. 16, 2020) (unpublished): One thing is certain: discovery abuses by the defendants infected this case—seemingly beyond repair, leading to a default judgment against the defendants …

RICO: Possibility That Third-Party Payor Was Derivatively Harmed by Statements Pharma Co. Made to Doctors or Patients Doesn’t Support RICO Liability — MDL Court’s Dismissal Order in Unconsolidated Case Is Immediately Appearlable

Med. Mut. of Ohio v. AbbVie Inc., 2019 WL 5887194 (7th Cir. Nov. 12, 2019) (unpublished): *1 Medical Mutual of Ohio contends in this suit under the civil-liability section of the Racketeer Influenced and Corrupt Organizations Act (RICO…

When Bankruptcy Courts May Decline to Enforce Arbitration Clauses: 2 Requirements — Under Rule of Orderliness, One Panel Can’t Overrule Another Absent Unequivocal Decision of Supreme Court or Circuit En Banc

In re Henry, 2019 U.S. App. LEXIS 37127 (5th Cir. Dec. 16, 2019): PER CURIAM: The opinion previously filed in this case is withdrawn and the following is substituted. Years after Stephanie Marie Henry took out a student loan, she …

Disqualification of Former Government Lawyer — Under NY Rule of Prof’l Conduct 1.11(a)(2), “Matter” = Discrete Transaction Or Set of Them & “Substantial Participation” Is Substantive, Affecting the Merits

Ferncliff Cemetery Ass'n v. Town of Greenburgh, 2019 U.S. Dist. LEXIS 219042 (S.D.N.Y. Dec. 17, 2019): Before the Court are Defendant Town of Greenburgh's motions to disqualify Plaintiff's counsel Frederick W. Turner, (Doc. 30), and dismiss the Amended Complaint, (Doc.…

Facebook Authentication by Course of Dealing — Details and History of Communication with Specific User May Suffice to Authenticate Post As Emanating from That User, Just As Past Pattern of Phone Call May Authenticate ID of Caller

Commonwealth v. Agro, 2019 Mass. App. Unpub. LEXIS 775 (Mass. Ct. App. Nov. 21, 2019) (non-precedential): MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 After a jury-waived trial in the Central Division of the Boston Municipal Court Department, the trial judge…

RICO Securities Bar: Purchase of Shares in Tax Shelter Scheme ≠ Actionable Secs. Fraud — Can’t Base Closed End Continuity on Bald Assertions As to 3d Parties or Open End by Pinpointing a Moment in Time & Disregarding Contrary Facts (Good Quotes)

Menzies v Seyfarth Shaw LLP, 943 F.3d 328 (7th Cir. Nov. 12, 2019): Insurance executive Steven Menzies sold over $64 million in his company’s stock but did not report any capital gains on his 2006 federal income tax return. He …

12(b)(6) Dismissal Motion: Judicial Notice of News Reports & Non-Official Websites, including YouTube & Wikipedia, Only to Establish What Was in Public Realm, Not for Truth — Motion Converted to SJ to Consider Truth

Strojnik v. Azul Hosp. Grp., 2019 U.S. Dist. LEXIS 207424 (E.D.N.Y. Dec. 2, 2019): Plaintiff is proceeding in this matter pro se, but he is licensed as an attorney in the state of California; pre-trial proceedings are accordingly referred to …

R. 37 Sanctions — Default Judgment — Bad Faith/Willfulness/Fault —Well-Pleaded Allegations Must Show Liability As a Matter of Law — Failure to Object to Magistrate Judge R&R Waives Review — Discretionary Review for Plain Error

Isigi v. Dorvilier, 2019 U.S. App. LEXIS 38054, 2019 WL 6997902 (2d Cir. Dec. 19, 2019) (unpublished): SUMMARY ORDER UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on April 2, 2018, is…

Waiver of Right to Arbitrate — 3 Factors — 18 Month Delay, Litigation of Motion to Dismiss Effects Waiver — What Constitutes Prejudice to Opponent

Flores v. Adir Int'l, LLC, 2019 U.S. App. LEXIS 37262 (9th Cir. Dec. 17, 2019) (unpublished): MEMORANDUM* Defendant-Appellant Adir International, LLC (Adir) appeals the district court's denial of its motion to compel arbitration in an action brought by Plaintiff-Appellee…

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Recent Articles

RICO — Pleading Conspiracy — Plaintiffs Must Plausibly Allege That the Defendants Knowingly Joined the RICO Conspiracy — Sparse Allegations of Knowledge of Fraud Due to Participation in a Commercial Transaction Insufficient to State RICO Conspiracy Claim Where Allegations Not Inconsistent with Ordinary Commercial Behavior — While Knowledge May Be Pled “Generally” under Rule 9(b), It Cannot Be Alleged Conclusorily and Must Satisfy the Twiqbal Plausibility Standard

Depositions: Improper to Object to Form to Straightforward Questions (Not Compound, Vague, Leading or Speculative) — Lack of Foundation Objection Improper in 30(b)(6) Deposition — Improper to “Educate” Witness During Breaks of 30(b)(6) Deposition Through Witness Calls to Knowledgeable Corporate Colleagues — Magistrate Judge May Impose Financial Sanctions

Spoliation/Sanctions: “A Party Does Not Spoliate Evidence When, Without Notice Of The Evidence’s Potential Relevance, It Destroys The Evidence According To Its Policy Or In The Normal Course Of Its Business” (Good Quote)

RICO: Fraud on Government Entities Causing Plaintiffs to Pay More for Inmate Calls Actionable on Bridge v. Phoenix Bond Analysis — Fact That Governments Had Separate Injuries As Part of the Scheme (from Reduced Commissions) Irrelevant — Plaintiffs’ Injuries Not Derivative of Governments’ — The Fraud on the Governments Was Not Too Distinct From Plaintiffs’ Injuries But Rather Necessary to Injure Plaintiffs — No Risk of Duplicative Recoveries and No Plaintiff Better Situated to Sue for Plaintiffs’ Injuries

Inherent Power Sanctions — Dismissal for Threatening Defendant and Magistrate Judge — No First Amendment Right to Threaten Violence

RICO: Domestic Injury — Delivery of Fraudulently Non-Conforming Goods FOB Los Angeles for Shipment to China Means Injury Arose Domestically When Purchaser Took Title —Other Relevant Factors Include That The Non-Conforming Goods Were Sourced and Made in the U.S. and The Racketeering Activity (Mail/Wire Fraud) Occurred in, and Was Directed from, the United States — Irrelevant to Domestic Injury Inquiry Whether Property Is Tangible or Intangible — 7th Circuit’s “Injury-Felt” Test of Domestic Injury Rejected by Supreme Court — RICO Standing Requires Concrete Financial Loss, Not Merely Injury to Valuable Intangible Property Interest (9th Circuit)

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

Commercial Litigation and Arbitration