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

Civil Contempt Sanction of $1,000/Day until Discovery Order Honored — Disc’y per Rules 34(a), 45 & in Ch. 15 Bkcy Case Not Limited to Docs in U.S. — Issue Is Practical Ability to Obtain Them (“Control”) — Factors for Contempt & Coercive Sanction

In re Markus, 2019 Bankr. LEXIS 3276, 2019 WL 5257902 (S.D.N.Y. Bankr. Oct. 16, 2019): On October 8, 2019, the Court entered an Order imposing sanctions on Victor A. Worms, Esq. (“Worms”), counsel of record for the foreign debtor …
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Rule 37(c)(1) Sanctions: District Judge’s Review Magistrate of Judge’s Decision Is for Abuse of Discretion — 5-Factor 37(c)(1) Test (6th Cir.) — Can Timely Production (within Fact Discovery Period) Still Be Sanctionably Late? (Footnote 7)

Bisig v. Time Warner Cable, Inc., 2019 WL 4894348 (6th Cir. Oct. 4, 2019): *1 This case is about promises made, promises broken, and disclaimers signed. And it is a reminder that not every broken promise occasions a legal remedy.…
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Experts: Rule 37(c)(1) Discretion Inapt If Late-Disclosing Party Fails to Show Good Cause to Modify Protective Order Deadline for Expert Reports, Necessitating Exclusion — 2-1 Eighth Circuit Decision

Petrone v. Werner Enters., 2019 U.S. App. LEXIS 30344 (8th Cir. Oct. 10, 2019): Philip Petrone and others (collectively, Plaintiffs) filed a class action against Werner Enterprises, Inc. and Drivers Management, LLC (collectively, Defendants) arising out of an eight-week student-driver …
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Facebook Authentication: Photos on Social Media Subject Only to Traditional [Fair-and-Accurate-Portrayal] Test Where Sole Proffer Is the Images, Not As Part of a Social Media Statement by the Ostensible Page Owner

United States v. Vázquez-Soto, 2019 U.S. App. LEXIS 29495 (1st Cir. Oct. 1, 2019): After a six-day trial and four days of deliberation, a jury convicted appellant Rodolfo Vázquez-Soto on two counts of making false statements and one count of …
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Forum Selection Clause Requiring Litigation in Federal Court Unless Court Lacks Jurisdiction Trumps Forum Defendant Rule, Which Is Procedural & Doesn’t Affect Subject Matter Jurisdiction

Capital Rest. Grp., LLC v. Burger King Corp., 2019 U.S. Dist. LEXIS 176821 (S.D. Fla. Oct. 11, 2019): This matter is before the Court on Defendant Burger King Corporation's motion to dismiss. (ECF No. 9.) The Plaintiff filed a response…
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Daubert — While District Court Must Create a Record & Articulate Its Basis for Rulings on Expert Evidence, Belated Explanation in Order Denying New Trial Sufficient

United States v. Hodge, 2019 U.S. App. LEXIS 23715 (5th Cir. Aug. 8, 2019): After a five-week trial on False Claims Act and Financial Institutions Reform, Recovery and Enforcement Act claims, the government secured judgments and penalties that totaled nearly …
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Attorney-Client Privilege/Work Product — Waiver — Inadvertent Disclosure Made Prior to Commencement of Litigation Is Not Made “In a Federal Proceeding” and Isn’t Governed by Fed. R. Evid. 502(b)

Joubert v. Hussain, 2019 U.S. Dist. LEXIS 162073 (S.D. Ga. Sept. 23, 2019): Before the Court are Defendants Zachary Hussain, Sondy Lawrence, Tina Bland, Victory Duncan, Jim Hannah, Harriet Coles, Michael Newman, Cheri Newman, Lisa Childs, Waylon Cawley, and Edna…
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Recent Articles

Rule 37 Default Judgment Sanction: (1) Abuse of Discretion Review = Legal Conclusions De Novo. Factual Findings for Clear Error — (2) Client May Be Sanctioned for Misconduct of Its Counsel, Though Here Client Was Directly Involved in Bad Faith Misbehavior — (3) Is There A Difference, Under Rule 11 As Opposed to Rule 37, Concerning Whether A Client Can Be Sanctioned for Its Counsel’s Misconduct? — (4) While Sanctions of Last Resort (Dismissal/Default) Are Apt Only If Lesser Sanctions Wouldn’t Ensure Compliance, Rule 37 Doesn’t Require the Vain Gesture of First Imposing Lessert Sanctions When It Is Clear They Would be Ineffective — (5) Court’s Reconsideration of Non-Final Orders Is Governed by Rule 54(b), And Court’s Discretion under That Rule Is Governed by the Law-of-the-Case-Doctrine

RICO: (1) Special Pleading Requirements? — (2) Although Enterprise Must Be More Than a Summation of the Predicate Acts, The Predicate Acts Can Demonstrate the Existence of the Enterprise — (3) Requirement That Association-in-Fact Exist For Purposes Other Than Just to Commit Predicate Acts Merely Requires Continuity — (4) To State an Association-in-Fact Enterprise Consisting of One Natural Person and Collection of Legal Fictions Requires Factual Detail As to How They Acted Together — (5) “A § 1962(c) Enterprise Must Be More Than An Association of Individuals Or Entities Conducting the Normal Affairs of a Defendant Corporation” (Good Quote)

RICO: (1) Fee Award May Exceed Amount Recovered — Strict Proportionality Not Required — (2) Nonmonetary Benefits and Injunctive Relief Recovered Also Relevant Factors — (3) Loss on Some Claims Need Not Result in Lowered Fees, Especially When Both Arise Out of The Same Nucleus of Operative Facts

RICO: Indirect Purchasers (Car Buyers/Renters) Lack Standing to Sue Manufacturers for RICO Violations Even Though Intermediaries (Auto Dealer Direct Purchasers) Lack Any Damages

RICO: Statutory Requirement that RICO Be Liberally Construed Does Not Establish a More Liberal Pleading Standard for RICO Claims — “To Be Sure, Adequately Pleading a RICO Claim Can Be Challenging” (Good Quote) — Court May Dismiss Action Pursuant to Rule 41(b) Absent A Motion

Electronic Spoliation/Rule 37(e): (1) Finding of Recklessness But Neither Gross Negligence Nor Willfulness in Loss of Video Evidence Precludes Rule 37(e)(2)’s Severest Sanctions Because (i) No Intent to Deprive and (ii) Rule 37(e)(2) Displaces District Court’s Power to Invoke Inherent Power to Impose Those Sanctions — (2) Appellate Review = Abuse of Discretion, With The Caveat That Whether The District Court Applied The Correct Legal Standards Is Reviewed De Novo — (3) Inherent Power Is Often Available As An Alternate Source of Sanctioning Power But Can Be Limited by Rule or Statute, Something Which Courts Do Not Lightly Presume — (4) The Text of Rule 37(e)(2), As Confirmed by the Advisory Committee Note, Displaces Inherent Power to Impose the Sanctions Specified in the Rule or Any More Severe Sanctions — (5) “Intent to Deprive” in Rule 37(e)(2) = “The Willful Destruction Of Evidence With The Purpose Of Avoiding Its Discovery By An Adverse Party” — (6) Appellate Standing Conferred by Virtue of Issuance of Sanctions Regardless of Merits Outcome — (7) Value of Advisory Committee Notes in Interpreting Rules Enacted without Change Despite General Reticence to Rely on Legislative History

RICO: (1) Plaintiff Need Not Suffer Injury from Each Predicate Act to Establish Standing, And The Pattern May Include Predicates As to Which No Plaintiff Has Standing — (2) 7 Elements of a Civil RICO Claim (2d Circuit Articulation) Which Must Be Established As to Each Defendant — (3) Requirements of an Association-in-Fact Enterprise — (4) Each Defendant Must Personally Commit 2 or More Predicate Acts — (5) Pattern of Racketeering Activity: Horizontal and Vertical Elements — (6) No Requirement That All Members of a RICO Enterprise Joined at Inception — Can Join Over Time/Others Can Quit — (7) Cannot Charge 2 Predicate Acts Where One Action Violates Two Statutes — (8) A Footnote to Consider for Briefs: “Unless Otherwise Noted, When Quoting Judicial Decisions This Order Accepts All Alterations And Omits All Citations, Footnotes, And Internal Quotation Marks.”

For An Appeal to Be Timely, A Motion for Reconsideration in The District Court (A Rule 59(e) Motion) Must Be Filed, And Not Just Served within 30 Days of The Decision, to Toll The 30-Day Period for Filing An Appeal

There Is No Good-Faith Defense For Issuing An Overly Burdensome Subpoena

Purposes of Rule 37 and Section 1927 Sanctions

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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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