Monthly Archives: November 2015

Posted: November 30, 2015

Client Q&A: I am a shareholder in a family-owned business. I think that CEO of the company has been taking advantage of us. Besides firing her, is there anything we can do?

By John M. Lundin Shareholders own the corporation, but the directors and the officers they employ run it. Making sure that corporate officers act in the best interests of the shareholders, who own the company, rather than themselves, is one of the fundamental problems of corporate law. Fiduciary Duties A corporate officer has a fiduciary… Read more »

Posted: November 30, 2015

Court Elects Lodestar Over Percentage Method In Awarding Attorneys’ Fees In FLSA Case, While Reducing Lodestar Fee To Account For Overstated Hours And Other Timekeeping Excesses

In Marshall v. Deutsche Post DHL, No. 13-CV-1471 (E.D.N.Y. Sept. 21, 2015), Judge Dearie reduced a claim for $500,000 in attorneys’ fees under the Fair Labor Standards Act, 29 U.S.C. § 216(b), to $370,236.50. The parties settled the case for $1.5 million while plaintiffs’ motion for certification as a collective action was pending. Plaintiffs’ claim… Read more »

Posted: November 30, 2015

Court Grants Attachment in Support of Collection of Foreign Judgment

On November 17, 2015, Justice DeStefano of the Nassau County Commercial division issued a decision in Passport Special Opportunities Master Fund, L.P. v. ARY Communications, Ltd., 2015 NY Slip Op. 51696(U), granting an attachment in support of the collection of a foreign judgment. In Passport Special Opportunities Master Fund, the plaintiff brought an “action to… Read more »

Posted: November 29, 2015

First Department Upholds Contract Provision Limiting Damages

On November 19, 2015, the First Department issued a decision in MG Hotel, LLC v. Bovis Lend Lease, LMB, Inc., 2015 NY Slip Op. 08507, upholding a contractual provision limiting the damages that could be recovered for breach of the contract, explaining: The written warranty that Trane provided to plaintiff expressly provided plaintiff the limited… Read more »

Posted: November 28, 2015

Plaintiff Fails to Plead Fraud Claim Under Special Facts Doctrine

On October 9, 2015, Justice Ramos of the New York County Commercial Division issued a decision in ZFI Endowment Partners, L.P. v. Goldin, 2015 NY Slip Op. 32203(U), dismissing a fraud claim because plaintiff had not alleged facts sufficient to excuse its lack of due diligence under the special facts doctrine, explaining: [The plaintiff] admits… Read more »

Posted: November 27, 2015

Administrative Employee Not “Associated Person” Subject to FINRA Arbitration Requirements

On November 17, 2015, Justice Singh of the New York County Commercial Division issued a decision in Rice Securities LLC v. Bonwick Capital Partners, LLC, 2015 NY Slip Op. 32204(U), holding that an administrative employee was not subject to arbitration under FINRA rules. In Rice Securities, the plaintiff brought a proceeding to “compel respondents’ arbitration… Read more »

Posted: November 26, 2015

Plaintiff Fails to State Claim for Alter Ego or Successor Liability

On November 16, 2015, Justice Scarpulla of the New York County Commercial Division issued a decision in Weinheimer v. Lower Brule Community Development Enterprise, LLC, 2015 NY Slip Op. 32168(U), dismissing claims based on alter ego or successor liability, explaining: Those seeking to pierce a corporate veil of course bear a heavy burden of showing… Read more »

Posted: November 25, 2015

Appeal Dismissed As Untimely Based on Unsuccessful Attempt to E-File

On October 30, 2015, the Second Circuit issued a decision in Franklin v. McHugh, No. 14‐4096‐CV, dismissing an appeal as untimely because the electronic filing of the notice of appeal, although timely attempted (and believed by counsel to have been timely made) was not successfully processed by the court’s electronic filing system. In Franklin, the… Read more »

Posted: November 24, 2015

Insurer Ordered to Provide Defense Where Consideration of Facts Outside the Complaint Suggested a “Reasonable Possibility of Coverage”

On October 1, 2015, Justice Bransten of the New York County Commercial Division issued a decision in General Star Indemnity Co. v. Telomerase Activation Sciences, Inc., 2015 NY Slip Op. 31850(U), ruling that an insurer was obligated to provide a defense to its insured where the allegations of the complaint brought against the insured, and… Read more »