Joseph Hage Aaronson

Commercial Litigation and Arbitration

Disqualification of Experts (2-Part Test) vs. Lawyers (2 Scenarios) — Courts Presume That Lawyers, But Not Experts, Received Confidential Information — Judicial Docs Presumptively Public Even If Not Relied on

Homeward Residential, Inc., Solely in Its Capacity As Master Servicer for the Option One Mortg. Loan Trust 2006-2 ex rel. Tr. & the Holders of Option One Mortg. Loan Trust 2006-2 Certificates, 2019 U.S. Dist. LEXIS 189285 (S.D.N.Y. Oct. 31,…

Bankruptcy Courts Have Power to Issue at Least Relatively Minor, Non-Compensatory Inherent Power Sanctions — Power Derived Not from Art. III But from Nature of Federal Judicial Institutions — Appeals Court Must Assess Jurisdiction of Lower Courts

Rosellini v. United States Bankr. Ct. (In re Sanchez), 2019 U.S. App. LEXIS 32462 (2d Cir. Oct. 30, 2019): Per Curiam. In September 2013, Appellant Kenneth Rosellini filed a Chapter 7 petition in the United States Bankruptcy Court for the…

Inherent Power Sanctions May Be Imposed on Lawyer for Violation of Court Order (Failure to Appear, Prosecute) Or Other Misconduct Not Undertaken for the Client’s Benefit without a Showing of Bad Faith (2d Cir.)

In re Sanchez (Rosellini v. U.S. Bankruptcy Court), 2019 WL 5596472 (2d Cir. Oct. 30, 2019) (unpublished): *1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the orders of the district court dated May 19, 2017, and…

§1927 Sanctions: Clear & Convincing Evid. Only If Cost of Whole Case Shifted — Persistent Prosecution of Baseless Claim Enough — Can’t Rely on Client If “Glaring Red Flags” (Many Good Quotes)

Morrison v. Walker, 2019 WL 4782749 (5th Cir. Oct. 1, 2019): *1 Litigation abuse is nothing new. Since 1813, when James Madison was president, a one-sentence federal statute has authorized monetary sanctions against attorneys who misuse the litigation process.1…

Advocate-Witness Rule (3.7) — Lawyer in Bad Faith Insurance Action Who Represented Plaintiff in Underlying Suit = Necessary Witness & Disqualified — Not All Participation in Bad Faith Suit Barred

Timlick v. Liberty Mut. Ins. Co., 2019 U.S. Dist. LEXIS 174208 (D. Mont. Oct. 7, 2019): Defendants Liberty Mutual Insurance Company and Safeco Insurance Company of Illinois have filed a motion to disqualify Plaintiff Jay Timlick's counsel, Gary Crowe, pursuant…

Wayback Machine — Judicial Notice OK— Even If Not, Court Could Consider Internet Archive Corporate Witness’s Affidavits Authenticating the Technology from Other Cases Pursuant to Rule 104(a)

Pohl v. Mh Sub I, 2019 U.S. Dist. LEXIS 182695 (N.D. Fla. Oct. 23, 2019): ORDER ON MOTIONS IN LIMINE AND SANCTIONS This Court has considered, without hearing, parties' various motions. For the reasons stated below, Plaintiff's Motion in Limine,…

Arbitration: Evident Partiality—Arbitrator Must Disclose Ownership Interest in Administering Entity & Whether Either Party Has Had Prior Non-Trivial Business Dealings — When Party Has Constructive Knowledge of Evident Partiality

Monster Energy Co. v. City Bevs., LLC, 2019 U.S. App. LEXIS 31388 (9th Cir. Oct. 22, 2019): City Beverages, LLC, doing business as Olympic Eagle Distributing [*4] (Olympic Eagle), and Monster Energy Co. (Monster) signed an agreement providing exclusive distribution…

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 …

Securities: Judicial Notice (JN) of Wayback Machine OK — Defs. Can’t Use JN to Insert Own Version of Events to Defeat Well-Pled Claims — JN of Transcripts for Acts, Not Substance, & of 10b5-1 Plan Only for Fact Sales Made Pursuant Thereto

In re Facebook, Inc. Secs. Litig., 2019 U.S. Dist. LEXIS 166027 (N.D. Cal. Sept. 25, 2019): This lawsuit stems from the revelation that Cambridge Analytica acquired the private Facebook data of millions of users and that, upon learning of this…

Experts: Opinion Expressed As “Belief” Satisfies Daubert If It Reflects Conclusions Based on Actual Knowledge, Not “Mere Belief Or Speculation” — Rule 37(c)(1) Sanctions: Exclusion Not Automatic

Turner v. Phillips 66 Co., 2019 U.S. App. LEXIS 30880 (10th Cir. Oct. 16, 2019) (unpublished): Richard Turner appeals the grant of summary judgment in favor of Phillips 66 Company on his claims under the Americans with Disabilities Act (ADA)…

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Recent Articles

Rule 37 Discovery Sanctions: Ninth Circuit’s Five-Factor Test for Gauging Appropriateness of Dismissal — The Limited Utility of Rule 12(f) Motions to Strike

RICO: Employer Suffered Harm to Business or Propoerty When Kickbacks Paid to Employees in Real Estate Transactions Done for Employer — Expert Testimony Sufficient to Prove Harm — Proof That Employer Paid Above-Market Prices Not Essential — Non-Disclosure of Certain Damages in Initial Disclosures Cured by Expert Report, Which Also Rendered Initial Non-Disclosure Harmless

Spoliation: Dismissal Under Rule 37(e)(2) and Monetary Sanctions Under Rule 37(e)(1), Implicitly Reading The “Or” Between 37(e)(1) and 37(e)(2) As Conjunctive, Not Disjunctive — Clear Error Standard of Review for District Court’s Intent (= Bad Faith) Finding under 37(e)(2)(C) — Additional Monetary Sanctions Imposed on Claimants under 28 U.S.C. § 1927 and Rule 37(a)(5) — No Right to Jury Determination of Intent under Rule 37(e)(2) — “Substantially Justified” in Rule 37(a)(5) Has Same Meaning As In Equal Access to Justice Act and Thus Rule 11 — Meaning of “Unreasonable and Vexatious” in 7th Circuit

Inherent 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

Rule 37 Default Judgment — Tenth Circuit Multifactor Test Is Not Exhaustive But a Non-Exclusive List of “Sometimes-Helpful Criteria Or Guide Posts”— Appeal from Preliminary Injunction Mooted by Entry of Permanent Injunction — Difficulty in Collecting Damages Award May Equal Irreparable Injury — A Monetary Award For Past Conduct Does Not Preclude A Permanent Injunction Against Similar Wrongful Conduct Likely To Occur In The Future

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

Commercial Litigation and Arbitration