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

Complaint Not Sanctionable under §1927 — Failure to Settle = Client Choice, Not Attributable to Lawyer — No Bad Faith If Venue Proper, Even If Inconvenient — Saying Case “Not Worth Litigating” = Inoffensive Settlement Statement, Not Admission

Gust, Inc. v. Alphacap Ventures, LLC, 2018 U.S. App. LEXIS 27667 (Fed. Cir. Sept. 28, 2018): Movant Gutride Safier LLP ("Gutride"), a law firm representing AlphaCap Ventures, LLC ("AlphaCap") in the district court litigation here, appeals the award of …
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30(b)(6) Testimony = Evidentiary, Not Judicial, Admission; Can Be Explained, Corrected, Supplemented — But Sham Affidavit Rule Applies; Some Tension As to What Can Be Modified & When (Reliance, Etc.)

Snapp v. United Transp. Union, 889 F.3d 1088 (9th Cir. 2018): Plaintiff Danny Snapp brought this action against the United Transportation Union (the "Union") and his former employer, Burlington Northern Santa Fe Railway Company ("BNSF"), alleging a failure to…
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Rule 37(c)(1): If Exclusion=Dismissal, Must Consider Lesser Sanction But No Bad Faith Needed — No Abuse of Discretion If No Request for Lesser Sx — No Meet, Confer Duty Pre-Exclusion — Can Sanction Issue If Non-Disclosure Harmless, Justified?

Vanderberg v. Petco Animal Supplies Stores, 2018 U.S. App. LEXIS 28101 (8th Cir. Oct. 4, 2018): The rules governing litigation in federal courts ensure fair and orderly proceedings free from prejudicial surprises. All litigants must disclose the identity of…
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RICO: Use of Industry-Standard [Condo / Lending] Form ≠ Mail, Wire Fraud — No Showing of Strong Inference to Defraud, Nor Any Explanation Why Use of the Form Is Fraudulent — Filing of False Documents in Litigation ≠ Predicate Act

Smulley v. FHFA, 2018 WL 4849667 (2d Cir. Oct. 5, 2018): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the district court is AFFIRMED. Appellant Dorothy Smulley, pro se, sued Webster Financial Corporation …
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Rule 11: “Later Advocating” Imposes Continuing Duty to Correct or Withdraw — Appeals: FRAP 38 & 1927 Sanctions for Advancing Factual / Legal Arguments Only in Reply Brief & Seeking Stay on Appeal without First Seeking It from District Court

Galin v. Hamada, 2018 U.S. App. LEXIS 28091 (2d Cir. Oct. 4, 2018): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Plaintiff-appellant Reed Galin and his counsel,…
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FRAP 38, 1927 & Inherent Power Sanctions — Revealing Confidential Discussions with Opposing Counsel, Mediator from Court-Ordered Mediation, Violating Local Circuit Rule, Is Sanctionable—Vaguely-Referenced Docs Integral to Complaint OK on 12(b)(6)

Cortes v. 21st Century Fox Am., 2018 U.S. App. LEXIS 27759, 2018 WL 4694181 (2d Cir. Oct. 1, 2018) (unpublished): *1 UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on January 11,…
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Inherent Power Sanctions: Threatening Witnesses on Facebook If They Cooperate with Adversary Amounts to Witness Tampering, Is Properly Sanctioned by Award of Attorney’s Fees for Time Spent on Sanctions Issue

Emerson v. Dart, 2018 WL 3853761 (7th Cir. Aug. 14, 2018): *1 Paula Emerson is a correctional officer on leave from the Cook County Department of Corrections. She alleges that two County employees unlawfully discriminated against her during her tenure…
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RICO Extraterritoriality — Where Is Intangible Injury Felt? — Circuit Split — 3d Circuit Adopts Multifactor Approach, Rejects 7th Circuit’s Bright-Line Rule It Is Felt at Plaintiff’s Residence — Difficulty of Cyberspace Injury Issue Noted

Humphrey v. Glaxosmithkline Plc, 2018 U.S. App. LEXIS 27443 (3d Cir. Sept. 26, 2018): Section 1964(c) of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-1968, creates a private right of action for a…
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Deposition of Expert > 100 Miles from Courthouse Taken by Retaining Party Not Hearsay When Offered by Retaining Party — Fed. R. Civ. P. 32(a)(4)(B) Is Independent Hearsay Exception — Unavailability Irrelevant

Fletcher v. Tomlinson, 895 F.3d 1010 (8th Cir. 2018): St. Louis Police Department (SLPD) Officers Nicholas Martorano and John Moton appeal from the district court's1 judgment, entered upon a jury verdict, finding that  [*1013]  they used excessive force …
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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

Archives
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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