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

Statutory Interpretation —“Even Precise & Voluminous Legislative History [LH] Can Be Off the Mark” (RICO) — Don’t Use LH If Text Clear — Noscitur a Sociis Inapt If “Or” Used — Rule of Last Antecedent (Good Quotes)

Pellegrino v. United States Transp. Sec. Admin., 2019 U.S. App. LEXIS 26392 (3d Cir. Aug. 30, 2019): The Federal Government is typically immune from suit. The Federal Tort Claims Act waives the Government's immunity for certain torts committed by its …
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Marital Communications Privilege: Factors — Invoker Must Establish Privilege Applies, But Opponent Must Defeat Presumption of Confidentiality — Applicability of a Priv. Is Fact Question, Scope Is Legal Question

United States v. Pugh, 2019 U.S. App. LEXIS 26204 (2d Cir. Aug. 29, 2019): Defendant-appellant Tairod Nathan Webster Pugh appeals from a judgment of conviction entered by the United States District Court for the Eastern District of New York (Garaufis, …
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Expert (701) vs. Lay (702) Opinion: Estimating Age = R. 701 Testimony — Under R. 704(b), Expert Can’t Opine on Def’s Intent But Can Give Testimony Supporting an Obvious Inference As to It

United States v. Stahlman, 2019 U.S. App. LEXIS 24571 (11th Cir. Aug. 19, 2019): After a jury trial, John David Stahlman appeals his conviction and 292-month sentence for attempting to entice a minor to engage in sexual activity.  On appeal,…
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Rule 37(b)(2)(A) — Deeming Facts Admitted, Striking Defenses for Perjury, Filing Fraudulent Docs — Deeming Billions in Bitcoin Jointly Owned [Does a Magistrate Judge Have Power to Order This Sanction?] — MJ Can’t Find Indirect Criminal Contempt

Kleiman v. Wright, 2019 U.S. Dist. LEXIS 147712 (S.D. Fla. Aug. 27, 2019): This matter is before the Court on the Plaintiffs' Motion to Compel, DE 210, and the Court's Order dated June 14, 2019. DE 217. The Court has…
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Court Has No Inherent Power to Compel a Specific, High-Ranking State Official (U. Pres.) to Attend Settlement Conference Or to Make It Public — Purpose of Rule 16 Settlement Conference Is to Settle, Not Provide Public Forum

In re Univ. of Mich., 2019 U.S. App. LEXIS 25304 (6th Cir. Aug. 23, 2019): This case is about power. The power of district courts to manage their cases and our power to review that process. Questions about judicial power…
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Rule 37(b)(2)(A) Sanctions — Dismissal for Violation of Discovery Order Reversed Where Party Appeared for Deposition Per Order, Was Questioned for Hours, Left for Work, and Order Stated No End Time — Unasked Questions Must Be ID’ed to Show Prejudice

Akins v. So. Glazer’s Wine & Spirits of Ark. LLC, 2019 WL 4071876 (8th Cir. Aug. 29, 2019) (unpublished): PER CURIAM. *1 Henry Akins appeals after the district court dismissed with prejudice his employment discrimination complaint as a sanction for…
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RICO: Whether a Pattern Exists (Predicates + Relationship + Threat of Continuing Activity) Is a Jury Question — Mailing Need Only Be Incident to Fraud, Not Fraudulent — Limited Scope of 9(b) Particularity

Sorensen v. Polukoff, 2019 WL 3819629 (10th Cir. Aug. 15, 2019) (Unpublished): 1 Sherman Sorensen, M.D., appeals the dismissal of his claims under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962. The district …
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Rule 37/41 Dismissal — 6th Cir.’s 4-Factor Test — Reckless Disregard Sufficient Mental State — While Lesser Sanctions Should Be Considered, Court Has Power to Dismiss As “First & Only Sanction”

McElrath v. City of Cleveland, 2019 U.S. App. LEXIS 24598 (6th Cir. Aug. 16, 2019) (unpublished): Ayanna and LaCretia McElrath, pro se Ohio litigants, appeal the district court's judgment dismissing their civil rights action pursuant to Federal Rules of Civil …
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Experts — Daubert Review: Abuse-of-Discretion Standard Applies as Much to the Trial Court’s Decisions about How to Determine Reliability as to Its Ultimate Conclusion

Water Pollution Control Auth. v. Flowserve US, Inc., 2019 U.S. App. LEXIS 22512 (2d Cir. July 30, 2019) (unpublished): SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED…
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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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