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Sometimes, challenging clients need to be challenged. Whether encouraging candid client conversations or reining clients in during depositions, it’s important to keep the ultimate goal in mind: success. In this episode of...more
The foundation of virtually every business and commercial transaction is a contract. It is difficult to imagine a transaction for the purchase or sale of goods, the merger or acquisition of a business, or the provision of...more
The Commercial Division’s decision in Rockmore v. Plastic Surgery Associates, LLP demonstrates the broad scope of ERISA preemption and the difficulty of pleading breach of fiduciary duty and conversion claims alongside breach...more
When a party to a contract repudiates, the non-repudiating party is faced with two options: (1) treat the repudiation as an anticipatory breach, terminate the contract and seek damages; or (2) continue to treat the contract...more
Nobody likes fraud claims asserted against them. Thankfully for defendants, fraud claims are notoriously difficult to prove, and defendants often try to have these claims dismissed at the pleading stage....more
In a recent Commercial Division case, Justice Elizabeth H. Emerson was asked to determine whether certain parties were bound by an arbitration clause and whether that arbitration clause applied to a particular controversy—two...more
Most commercial contracts contain a choice of law provision and/or forum-selection clause. Under New York law, it is well recognized “that parties to a contract may freely select a forum which will resolve any disputes over...more
It’s back to business as usual for Commercial Division Justice Andrew Borrok, who recently issued a slew of decisions contributing to New York’s robust Commercial Division jurisprudence....more
As the nation (and much of the world) remains gripped in uncertainty surrounding the COVID-19 pandemic and the impact of the unprecedented measures being taken to combat its spread, one thing appears beyond doubt on the legal...more
A life lesson you likely heard growing up applies to contracts: take a hard look at yourself before criticizing others. By the same token, a party who is in material breach of a contract cannot succeed on a claim alleging an...more
Ordinarily, a defendant will not actively try to help the plaintiff prove her case. But even this fundamental principle of the adversarial litigation process has limits. For example, in the criminal context, a defendant may...more
In a recent case before Justice Andrea Masley, Corporate Electrical Technologies, Inc. v. Structure Tone, Inc. et al., Plaintiff Corporate Electrical Technologies, Inc. (“CET”), a subcontractor, was hired by Structure Tone,...more
Most litigators know that a preliminary injunction is a “drastic remedy” which is not “routinely granted.” Reading these words on paper, however, does not adequately convey the high threshold that a party must meet when...more
When buying a business, purchasers must take into consideration the possibility of “successor liability” – that is, the buyer’s assumption of the seller’s liabilities and prior conduct upon purchasing a corporation....more
Not all agreements need to be in writing to be enforced. Indeed, unless there is an applicable Statute of Frauds, oral agreements are enforceable. But what if the parties to an agreement — a formal contract — don’t sign? ...more
I’ve lost track of how many lawsuits I’ve seen between co-owners of New York City restaurants. It’s not surprising given the high percentage of restaurant failures in an intensely competitive market with high rents, high...more
Many litigants are familiar with the well-settled rule that an affirmative defense will be waived if it is not included in a CPLR 3211(a) motion to dismiss or in the answer (see CPLR 3211[e]). And so, lawyers tasked with...more
I’ve long been intrigued with the frequency of litigation — especially in Delaware Chancery Court — over advancement of legal fees of a corporate director or officer or LLC manager who’s the target of a lawsuit by the entity...more
Justice Saliann Scarpulla was faced with a motion by Quinn Emanuel Urquhart & Sullivan LLP to dismiss the Petition brought by the departing partners to stay arbitration in Selendy v. Quinn Emanuel Urquhart & Sullivan LLP. ...more
The Supreme Court of Texas in its recent IBM decision provided further clarity to what contracting parties must say in their contracts to disclaim fraudulent inducement claims. Int’l Bus. Mach. Corp. v. Lufkin Indus., LLC,...more
Courts of England are some of the most established fora for dealing with complex commercial litigation. The Civil Procedure Rules (CPR) that govern litigation are robust and provide a clear framework for the cost-effective...more
Complex commercial litigations often stem from disputes arising out the conclusion, interpretation or performance of a contract leading the litigants to refer to the contractual provisions and to statutory law supplemented by...more
Forum-selection clauses were once widely disfavored by many courts on the theory that such provisions operated to improperly divest the court of jurisdiction. But now, it is well-recognized that parties to a contract may...more
Generally speaking, a fraud claim that is “duplicative” of a breach of contract claim will be dismissed. But when is a fraud claim sufficiently duplicative of a breach of contract claim so as to warrant its dismissal? The New...more
That was the issue presented to the Appellate Division, First Department in Electron Trading, LLC v. Morgan Stanley & Co. LLC, which was an appeal from the grant of defendant’s motion to dismiss a contractual claim seeking...more