Joseph Hage Aaronson

Privilege: Intentional Waiver by Predecessor Corp. (1 of 2 Merging Cos.) Extends to Post-Merger Communications on Same Subject Matter by Successor — 502(b) Fairness Is Touchstone — Mandamus Apt for Issue of First Impression

In re OptumInsight, Inc., 2017 U.S. App. LEXIS 13483, 2017 WL 3096300 (Fed. Cir. July 20, 2017): This petition arises out of an order of the United States District Court for the Northern District of California compelling OptumInsight, Inc.…

Rule 37 Does Not Excuse Party from Appearing for Properly-Noticed 30(b)(6) Deposition Simply by Objecting, But Does Not Require Sanctions, Either — Choice of Sanction Should Be Guided by Concept of Proportionality (Good Quote)

Ranowsky v. Nat’l R.R. Passenger Corp., 2018 WL 3894287 (D.C. Cir. Aug. 14, 2018) (unpublished): *1 In the midst of an extensive restructuring at the Office of the Inspector General for Amtrak, Kathleen Ranowsky was fired from her job as…

Social Media Posts Showing Confusion Admissible on Trademark PI Motion: (1) Show Declarants’ State of Mind, (2) Have Independent Evidentiary Significance Tending to Show Confusion — Alternatively, Usable on PI Even If Hearsay

Canes Bar & Grill of S. Fla. v. Bay, 2018 U.S. Dist. LEXIS 168669 (S.D. Fla. Sept. 29, 2018): ORDER ADOPTING IN PART AND MODIFYING IN PART REPORT AND RECOMMENDATION THIS CAUSE came before the Court on Plaintiff's Motion…

RICO: Mere Existence of a Contract Between a Party and a Vendor Is Insufficient to Establish a Common Purpose, and Thus State an Enterprise, within RICO

Ellis v. JPMorgan Chase & Co., N.A., 2018 WL 4090102 (9th Cir. Aug. 28, 2018) (unpublished): MEMORANDUM** *1 Appellants Diana Ellis, James Schillinger, and Ronald Lazar appeal from three district court orders, entered in a case where they were …

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 LEXIS 26420, 2018 WL 4450831 (9th Cir. Sept. 18, 2018) (unpublished): The plaintiffs-appellants in this case are a subset of residents at a San Bernardino apartment complex who …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

Commercial Litigation and Arbitration

Privilege: Intentional Waiver by Predecessor Corp. (1 of 2 Merging Cos.) Extends to Post-Merger Communications on Same Subject Matter by Successor — 502(b) Fairness Is Touchstone — Mandamus Apt for Issue of First Impression

Rule 37 Does Not Excuse Party from Appearing for Properly-Noticed 30(b)(6) Deposition Simply by Objecting, But Does Not Require Sanctions, Either — Choice of Sanction Should Be Guided by Concept of Proportionality (Good Quote)

Social Media Posts Showing Confusion Admissible on Trademark PI Motion: (1) Show Declarants’ State of Mind, (2) Have Independent Evidentiary Significance Tending to Show Confusion — Alternatively, Usable on PI Even If Hearsay

RICO: Mere Existence of a Contract Between a Party and a Vendor Is Insufficient to Establish a Common Purpose, and Thus State an Enterprise, within RICO

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.)

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

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

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

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