Joseph Hage Aaronson

Commercial Litigation and Arbitration

RICO Enterprise: Closed-Ended Continuity Requires 2 Years, But 2 Years, Alone, Insufficient (2d Cir.) — Open-Ended: Conclusory Allegation Schemes Are Defs’ Regular Way of Doing Business Insufficient — No Judicial Notice of Docs on Motion to Dismiss

Ambase Corp. v. 111 W. 57th Sponsor LLC, 2019 WL 4127342 (2d Cir. Aug. 30, 2019) (unpublished): SUMMARY ORDER Plaintiffs-Appellants AmBase Corporation, 111 West 57th Manager Funding LLC, and 111 West 57th Investment LLC (collectively, “AmBase”) appeal from the judgment…

§ 1927 Sanctions Require Subjective Or Objective Bad Faith — Objective Bad Faith Is Reckless Indifference to the Law (Thus, Reckless Satisfies §1927, in 7th Circuit)

4SEMO.com Inc. v. S. Ill. Storm Shelters, Inc., 2019 U.S. App. LEXIS 30041 (7th Cir. Oct. 7, 2019): This appeal involves a long-running trademark dispute over ownership and misuse of a wordmark and logo for below-ground storm shelters. The story…

28 U.S.C. §1782: “Resides Or Is Found” = Limits of Personal Jurisdiction — Application to Non-Parties (Relationship betw. Contacts & Discovery) — §1782 Has Extraterritorial Reach, Like the Discovery Rules

In re del Valle Ruiz, 2019 U.S. App. LEXIS 30002 (2d Cir. Oct. 7, 2019): Banco Santander S.A. ("Santander") acquired Banco Popular Español, S.A. ("BPE") after a government-forced sale. Petitioners, a group of Mexican nationals and two investment and …

The Existence of a Default Judgment against a Foreign State Can Establish Venue in the District in Which It Was Entered If the Foreign State Attempts to Open Up the Judgment (28 U.S.C. § 1391(f)(1))

Gater Assets Ltd. v. AO Gazsnabtranzit, 2019 U.S. Dist. LEXIS 167195 (S.D.N.Y. Sept. 27, 2019): Before the Court are a number of motions relating to Plaintiff-Petitioner Gater Assets Limited's ("Plaintiff") attempt to enforce an arbitration award against Defendants AO Moldovagaz …

Act of State Doctrine (Unlike Sovereign Immunity or Political Question) ≠ Jurisdictional or Abstention But Merits Issue — Bars Suit Only If Court Must Decide the Effect of Official Action by Foreign Sovereign

Mt. Crest Srl v. Anheuser-Busch Inbev Sa/Nv, 2019 U.S. App. LEXIS 26840 (7th Cir. Sept. 5, 2019): Mountain Crest SRL, LLC ("Mountain Crest"), brought this action, alleging that Anheuser Busch InBev SA/NV ("Anheuser-Busch") and Molson Coors Brewing Company ("Molson Coors")…

Rule 701 vs. 702: Witness with Technical or Specialized Knowledge May Provide 701 Opinion Directly Related to Witness’s Personal Knowledge without Making 702 Expert Disclosure — Expert Opining as Such Must Make Timely Disclosure

Modern Auto. Network, LLC v. E. Alliance Ins. Co., 2019 U.S. Dist. LEXIS 161850Before the Court are Defendants' Motion for Summary Judgment, (ECF No. 32), Plaintiff's Motion to Strike, (ECF No. 35), and Defendants' Motion in Limine, (ECF No.…

In Diversity Case, Does State or Federal Law Determine Whether Judge May Inform Jury of Effect of Its Findings? — Federal, Because It’s Procedural — Judge Not Required to, But May, Do So, in Instructions or Verdict Form

Ermini v. Scott, 2019 U.S. App. LEXIS 27206 (11th Cir. Sept. 10, 2019): This case arises out of a routine wellness check that went badly awry. The underlying episode began with three Lee County deputies stopping by to check on…

Untimely Expert Report — Rule 37(c)(1) Exclusion Is Matter of Discretion for District Court — Harmless Error May Be Inferred from Facts before District Court

Long v. E. Coast Waffles, Inc., 762 Fed. Appx. 869 (11th Cir. Mar. 8, 2019) (unpublished): PER CURIAM: East Coast Waffles, Inc. appeals from the district court's judgment in favor of plaintiff Steve Long after a jury found East Coast …

Work Product Protection Can Be Waived by Oral Statements — Here, Public Statements — Sufficiently Specific to Be Tantamount to Public Disclosure of the Contents of the Protected Material [Privilege]

N.Y. Times Co. v. United States DOJ, 2019 U.S. App. LEXIS 29198 (2d Cir. Sept. 27, 2019): Plaintiffs-appellees The New York Times and reporter Charlie Savage (collectively "The Times") seek access under the Freedom of Information Act ("FOIA") to five …

Common Interest Doctrine Requires That Shared Interest Be (1) Identical, Not Similar, and (2) Legal, Not Solely Commercial — Proponent of Attorney-Client Privilege Bears Burden of Proving Non-Waiver

D.M. v. Wesley Med. Ctr. LLC, 2019 U.S. Dist. LEXIS 160886 (D. Kan. Sept. 19, 2019); MEMORANDUM & ORDER DENYING PLAINTIFF'S MOTION TO COMPEL Now before the Court is Plaintiff's Motion to Compel (Doc. 365), seeking production by non-party CarePoint, …

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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

Commercial Litigation and Arbitration