Blogs

Posts Categorized: Indemnification and Advancement

Posted: April 9, 2018

Claim for Common Law Indemnification Must Be Based on an Agent’s Negligence, Not Breach of Contract

On March 29, 2018, Justice Kornreich of the New York County Commercial Division issued a decision in W. & M. Operating, L.L.C. v. Bakhshi, 2018 NY Slip Op. 30542(U), dismissing a claim for common law indemnification, explaining: Kay and Stiller correctly argue that neither may be held liable for common law indemnification. The principle of… Read more »

Posted: April 3, 2018

First Department Denies Motion to Stay Order Directing Excess Insurers to Advance Defense Costs

This blog previously covered Justice Sherwood’s decision in Freedom Specialty Ins. Co. v. Platinum Mgt. (NY), LLC, 2017 NY Slip Op 32728(U), which granted a preliminary injunction directing three excess D&O insurers to advance attorneys’ fees and costs for the defense of a securities fraud prosecution and a related SEC enforcement action.  (N.B. I represent one of the insureds… Read more »

Posted: January 22, 2018

Corporate Officer Failed to Make Factual Showing Required to Receive Indemnification for Defense of Criminal

On January 18, 2018, the Third Department issued a decision in Kaloyeros v. Fort Schuyler Mgt. Corp., 2018 NY Slip Op. 00373, holding that a corporate officer had failed to make the showing required to be entitled to be indemnified for his defense of criminal matter under Nevada law, explaining: A corporation is authorized to… Read more »

Posted: January 16, 2018

Court Grants Preliminary Injunction Directing Excess Insurers to Advance Defense Costs in Prosecution for Alleged Securities Fraud

On December 27, 2017, Justice Sherwood of the New York County Commercial Division issued a decision in Freedom Specialty Ins. Co. v. Platinum Mgt. (NY), LLC, 2017 NY Slip Op 32728(U), granting a preliminary injunction directing three excess D&O insurers to advance defense costs for the defense of a federal securities fraud prosecution, and related… Read more »

Posted: September 25, 2017

Veil Piercing Claim Not Incompatible with Indemnification Claim

On September 7, 2017, Justice Emerson of the Suffolk County Commercial Division issued a decision in Live Invest, Inc. v. Morgan, 2017 NY Slip Op. 27294, holding that a veil piercing claim was not incompatible with a claim for indemnification. First, the court discussed the availability of common-law indemnification: The principle of equitable indemnification, also… Read more »

Posted: September 16, 2017

Indemnification Provision Applies to Litigation Between Parties

On September 5, 2017, Justice Sherwood of the New York County Commercial Division issued a decision in Banc of America Credit Products, Inc. v. Guidance Enhanced Green Terrain, LLC, 2017 NY Slip Op. 31910(U), holding that an indemnification provision of a contract applied to litigation between the parties to the contract, explaining: In Hooper, the… Read more »

Posted: August 4, 2017

Request for Indemnification Under BCL Denied on Procedural Grounds

On July 13, 2017, Justice Emerson of the Suffolk County Commercial Division issued a decision in Federico v. Brancato, 2017 NY Slip Op 50968(U), denying a request for indemnification under the Business Corporation Law on procedural grounds. First, the court reviewed the legal framework for the indemnification of officers and directors under the BCL: Business… Read more »

Posted: November 21, 2016

Failure to Give Notice and Opportunity to Defend Fatal to Indemnification Claim

On November 17, 2016, the First Department issued a decision in Conergics Corp. v. Dearborn Mid-West Conveyor Co., 2016 NY Slip Op. 07750, holding that failure to give notice and an opportunity to defend an action was fatal to a plaintiff’s demand for indemnification. In Conergics Corp., the parties entered into a stock purchase agreement… Read more »

Posted: January 12, 2016

Defendant Entitled to Indemnification by Former Employer, Including for Counterclaims

On January 7, 2016, the First Department issued a decision in G2 Fmv, LLC v. Thomas, 2016 NY Slip Op. 00026, holding that a defendant was entitled to indemnification for litigation expenses by his former employer, including those relating to the defendant’s counterclaims against the employer, explaining: The Operating Agreement, which is governed by Delaware… Read more »