Joseph Hage Aaronson

Sanctions — Electronic Spoliation: Rule 37(e) Forecloses Reliance on Inherent Power — Sanctions Properly Denied Where Spoliations Unlikely and Any Gap in Production Relatively Insignificant

MEMORANDUM* Newberry v. Cty. of San Bernardino, 2018 U.S. App. LEXIS 26420, 2018 WL 4450831 (9th Cir. Sept. 18, 2018) (unpublished): The plaintiffs-appellants in this case are a subset of residents at a San Bernardino apartment complex who …

RICO: Intracorporate Conspiracy Doctrine Inapplicable to RICO Conspiracy in 11th Cir. (Cir. Split) — Incontestability Clause Doesn’t Bar RICO Claim over Fraudulently Procured STOLI Policies (RICO Dams. Won’t Void Policies)–Waiver of Choice of Law

Sun Life Assur. Co. of Can. v. Imperial Premium Fin., LLC, 2018 U.S. App. LEXIS 26461, 2018 WL 4443054 (11th Cir. Sept. 18, 2018): These [*3] two appeals arise from dueling lawsuits pitting Sun Life Assurance Company of Canada …

Sanctions — Court of Federal Claims Has Inherent Power, and Power under Its Rule 11, to Impose Vexatious Litigant Injunction against Recidivist Violator — No Further Motions on Subject Matter Allowed

Evans v. United States, 2018 U.S. App. LEXIS 24496 (Fed. Cir. Aug. 29, 2018): Appellant David O. Evans appeals an order of the U.S. Court of Federal Claims dismissing his claims for military back pay, disability retirement benefits, and…

Signature Block on Email Containing Name, Job Title, Firm Name & Contact Info Renders Email a Signed Writing for Purposes of the Statute of Fraud — Email Authentication

Meltzer, Lippe, Goldstein & Breitstone, LLP v. Malfetti, 2018 U.S. Dist. LEXIS 167150 (E.D.N.Y. Sept. 27, 2018): Plaintiff Meltzer, Lippe, Goldstein & Breitstone, LLP ("Meltzer Lippe") brought this action in state court against defendant James Malfetti, doing business as …

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 …

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…

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…

Sanctions: District Court Not Required to State Findings Or Conclusions on Every Sanctions Motion — Or Any Other Motion, under Fed. R. Civ. P. 52(a)(3), Absent Specific Requirement in a Rule

Bd. of Aldermen v. Mississippi, 2018 U.S. App. LEXIS 28032 (5th Cir. Oct. 1, 2018): PER CURIAM:* Underlying this action's being dismissed for lack of standing is the claim by the Board of Aldermen for the Town of…

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 …

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,…

Commercial Litigation and Arbitration

Sanctions — Electronic Spoliation: Rule 37(e) Forecloses Reliance on Inherent Power — Sanctions Properly Denied Where Spoliations Unlikely and Any Gap in Production Relatively Insignificant

RICO: Intracorporate Conspiracy Doctrine Inapplicable to RICO Conspiracy in 11th Cir. (Cir. Split) — Incontestability Clause Doesn’t Bar RICO Claim over Fraudulently Procured STOLI Policies (RICO Dams. Won’t Void Policies)–Waiver of Choice of Law

Sanctions — Court of Federal Claims Has Inherent Power, and Power under Its Rule 11, to Impose Vexatious Litigant Injunction against Recidivist Violator — No Further Motions on Subject Matter Allowed

Signature Block on Email Containing Name, Job Title, Firm Name & Contact Info Renders Email a Signed Writing for Purposes of the Statute of Fraud — Email Authentication

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

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.)

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?

Sanctions: District Court Not Required to State Findings Or Conclusions on Every Sanctions Motion — Or Any Other Motion, under Fed. R. Civ. P. 52(a)(3), Absent Specific Requirement in a Rule

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

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

Recent Articles

§ 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

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

Inherent Power — Circumstantial Evidence — Fact That Bad Faith May Be Shown by Establishing That Conduct Was So Egregious It Was Necessarily Committed in Bad Faith Does Not Mean That Bad Faith Must Be The Sole Explanation for The Bad Conduct

RICO Causation: Testing Labs’ Misstatements As to Alcohol Tests’ Efficacy Not Communicated to Plaintiffs’ Employers Did Not Cause Plaintiffs’ Professional Harm

Rule 37(d) Sanctions — For Failure to Serve Answers, Objections, Or Written Response to Discovery Requests — Are Not Limited to Intentional Misconduct; Even Innocent Mistakes May Be Covered

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