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Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts
Posted: October 19, 2013

Third Party Not Bound by Arbitation Agreement of Which He Was Not a Direct Beneficiary

On October 17, 2013, the Court of Appeals issued a decision in Matter of Belzberg v. Verus Invs. Holdings Inc., 2013 NY Slip Op. 06729, addressing the extent to which a person who is not a party to an agreement to arbitrate can nonetheless be required to arbitrate.

The Court of Appeals started with the general proposition that “nonsignatories are generally not subject to arbitration agreements,” but that courts have created an exception under the “direct benefits theory of estoppel,” where “a nonsignatory may be compelled to arbitrate where the nonsignatory ‘knowingly exploits’ the benefits of an agreement containing an arbitration clause, and receives benefits flowing directly from the agreement.”

In Matter of Belzberg, Belzberg, an investment advisor, opposed being brought into the arbitration because he was not a party to the contract containing the arbitration clause. The facts of the case show that Belzberg had benefited from the transaction to which the agreement related. Belzberg had directed a corporation owned by a trust he had established, and for which he served as an unpaid financial advisor, to transfer $5 million to Verus Investment Holdings, so that it could be invested. Verus invested that money, along with $1 million of its own funds, using Verus’ account at Jefferies & Co., Inc.  After the investment gained in value, Jefferies returned both Belzberg’s original $5 million investment and the profits to Verus. Verus subsequently distributed those funds to a friend of Belzberg’s, at his direction. When a dispute subsequently arose about whether Jefferies owed the Canadian government withholding tax on the profits, Jefferies sought to bring Belzberg into an arbitration brought pursuant to the arbitration clause in the agreement between Jefferies and Verus.

Notwithstanding the clear benefit to Belzberg and to parties with which he was associated, the Court of Appeals ruled that he was not bound by the arbitration clause in the agreement between Verus and Jefferies because “[t]he guiding principle is whether the benefit gained by the nonsignatory is one that can be traced directly to the agreement containing the arbitration clause” (emphasis added). Thus,

[t]he mere existence of an agreement with attendant circumstances that prove advantageous to the nonsignatory would not constitute the type of direct benefits justifying compelling arbitration by a nonparty to the underlying contract. Also, absent the nonsignatory’s reliance on the agreement itself for the derived benefit, the theory would extend beyond those who gain something of value as a direct consequence of the agreement. (Emphasis added.)

This case illustrates how difficult it can be to bring a non-signatory to an agreement to arbitrate into an arbitration and suggests that litigants should, in the first instance, look for a forum into which all parties can be brought.

Posted: October 17, 2013

Common Interest Privilege Limited to Litigation Context

On October 16, 2013, Justice Bransten of the New York County Commercial Division issued a decision in Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 2013 NY Slip Op. 51673(U), addressing the scope of the common interest privilege in the context of a corporate merger. Justice Bransten held that, contrary to rule applied by some federal courts, “New York law does not allow a privilege claim under the common-interest doctrine unless there is pending or reasonably anticipated litigation.”

Justice Bransten noted “that there is no litigation requirement when two parties consult with one attorney.” Thus, parties for whom it is important to create a common interest privilege outside of the litigation context should considering engaging joint counsel for that purpose.

Posted: October 16, 2013

A Formal, Written Litigation Hold Not Necessary To Trigger Requirement To Preserve Documents

On October 3, 2013, Justice Friedman of the New York County Commercial Division held in Roberts v. Korwin, 2013 N.Y. Slip Op. 51637(U), a legal malpractice action, that a written, formal litigation hold memo was not necessary to trigger the obligation to preserve documents once a party was on notice of a possible claim, writing:

Once a party reasonably anticipates litigation, it must, at a minimum, institute an appropriate litigation hold to prevent the routine destruction of electronic data. Greenberg Traurig submits no authority that the litigation hold must always be written and that the form of the litigation hold may not vary with the circumstances.

Posted: October 16, 2013

Court Orders Disclosure of Work Product When Counsel Creates the Appearance of Manipulating Witness Testimony

On October 3, 2013, Justice Kornreich of the New York County Commercial Division issued a decision in MBIA Ins. Corp. v Credit Suisse Sec.(USA) LLC, 2013 NY Slip Op 32404(U), addressing whether to order disclosure to defendant of “all communications between” certain key witnesses and plaintiff’s counsel, including “all versions, drafts, or iterations of the affidavits that formed the basis for the” complaint “and the witnesses’ deposition testimony.” The court’s recitation of the relevant facts shows the key issue—the apparent close involvement of plaintiff’s counsel in the witnesses’ testimony:

[Plaintiff] paid substantial sums of money (in certain cases, more than $10,000) to the witnesses and flew the witnesses from across the country to New York so that they could recount their knowledge of (and possible participation in) defendants’ fraudulent business practices. . . . Plaintiff’s counsel worked with these witnesses to draft affidavits detailing their knowledge of the fraud [and] . . . also extensively prepped them prior to deposition and defended their testimony against cross-examination by defendants. . . . Several of the witnesses began to recant their testimony or indicated that what was written in their affidavits was the work of [plaintiff’s] counsel and was not entirely an accurate description of their knowledge.

Justice Kornreich ordered the disclosure. In so doing, she acknowledged that:

The question before the court is not whether the use of confidential witness testimony in a complaint automatically entitles a defendant to obtain all documents and communications between the witnesses and plaintiff’s counsel. Rather, the issue is whether, once defendants have laid a foundation giving rise to a reasonable suspicion of a witness dissembling, fairness militates in favor of disclosure.

Justice Kornreich found that it did, and ordered the disclosure. The lesson here seems plain: there is nothing wrong with paying a reasonable rate for a witness’s time or discussing their testimony with them, but when counsel creates the appearance that it has crossed the line from gathering facts to manipulating them, trouble is bound to follow.

Posted: October 14, 2013

Court of Appeals Affirms The Use of Default Judgment as a Discovery Sanction

On October 7, 2013, we noted that on September 10, 2013, the Court of Appeals heard argument in Merrill Lynch, Pierce, Fenner & Smith Inc., v. Global Strat, Inc., Docket No. 160, a case examining the extent to which a sanction of default can be imposed for discovery violations. On October 10, 2013, the Court of Appeals issued its decision on that appeal.

In a brief, unsigned memorandum decision, the Court of Appeals reaffirmed the availability of sanctions for failing to comply with discovery obligations, including the entry of a default judgment against a non-complying party. However, the Court of Appeals held that the trial court abused its discretion in imposing such a sanction on the individual defendants-appellants because the sanction imposed—the entry of a default judgment—was disproportionately harsh compared to the alleged discovery abuse. Among the factors that the Court of Appeals considered were that the sanction was for the failure of the individual defendants to produce documents that related to businesses that the individual defendants controlled at a time when the individual defendants had yet to answer the complaint and against whom a discovery stay had been granted, that the plaintiff had not sought a default judgment, and that the report of the referee to whom the trial court had referred the discovery dispute did not contain the factual basis for the imposition of a default sanction. In light of all these factors, the Court of Appeals remanded the matter back to the trial court for the imposition of an appropriate sanction presumably upon a better record.

While this is a case in which a default sanction was vacated, it serves as a cautionary tale for parties that do not comply (or who create the appearance of not having complied) with their discovery obligations. Here, the individual defendants had to go all the way to the Court of Appeals to get a sanction (which included a huge money judgment) reversed that was imposed against them at a time when the case against them was stayed and where the referral to the referee did not even include the question of whether such a sanction should be imposed. Litigants with less compelling excuses should continue to beware the trial court’s broad discretion to impose sanctions—even a default sanction—for refusing to meet their discovery obligations.

Posted: October 11, 2013

Failure to Comply With Statute of Frauds Bars Any Kind of Action Based On The Alleged Promise

On October 4, 2013, Justice Emerson of the Suffolk County Commercial Division issued a decision in Saldano v. Precision CNC Corp., 2013 NY Slip Op. 51633(U), addressing whether parties which allegedly promised a co-tenant in the same commercial building (which was in default of its lease) that they would take over the lease and permit the co-tenant to continue its business in the same premises as a sub-tenant could be liable not only for breaching the promise but also fraud, for taking over the space and then using that as an opportunity to allegedly steal the co-tenant’s customer. In partially granting defendants motion to dismiss, Justice Emerson held that because the alleged promise concerning real property was unenforceable under the statute of frauds, it could not be the basis for either a breach of contract or fraud action:

An agreement that is unenforceable under the statute of frauds is unenforceable for all purposes and cannot be the basis of another action (61 NY Jur 2d Frauds, Statute of §312). Such a contract confers no rights and creates no obligations between the parties, and no claim can be founded on it against third persons (Id.) It cannot be enforced either directly or indirectly in an action for damages for breach, for specific performance, for fraud and deceit if that action depends on proof of the oral agreement, or for malicious interference therewith. (Id.) In short, the ban of the statute of frauds extends to any device calculated to evade the legislative mandate rendering unenforceable the original obligation. (Id.)

Posted: October 9, 2013

Court of Appeals Arguments of Interest for the Week of October 14, 2013

Upcoming arguments in the Court of Appeals that may be of interest to Commercial Division practitioners include:

Docket No. 191: Cruz v. TD Bank NA. (to be argued Tuesday, October 15, 2013)
Addresses two questions certified from the US Court of Appeals for the Second Circuit (see 2d Cir. order here:

first, whether judgment debtors have a private right of action for money damages and injunctive relief against banks that violate the Exempt Income Protection Act (EIPA)’s procedural requirements;
and second, whether judgment debtors can seek money damages and injunctive relief against banks that violate the EIPA in special proceedings prescribed by CPLR Article 52 and, if so, whether those special proceedings are the exclusive mechanism for such relief or whether judgment debtors may also seek relief in a plenary action.

Posted: October 8, 2013

A Borrower’s Subsequent Bankruptcy Frees Lender from its Election of Remedies

On October 7, 2013, Justice Kornreich of the New York County Commercial Division issued a decision in 172 Madison (NY) LLC v. NMP-Group, LLC, 2013 NY Slip Op. 51618(U), addressing whether a lender is bound by its election to foreclose on a mortgage rather than sue on the debt when the right to sue on the debt did not arise until after the election was made.  Justice Kornreich held that it was not, writing:

[W]here, as here, a lender has conditionally agreed to limit its remedies to foreclosure, subject to the borrowing parties’ compliance with certain loan covenants, and the borrowing parties breach those covenants only after the commencement of foreclosure proceedings, RPAPL 1301 does not preclude the lender from seeking alternative relief at that point, since such relief was unavailable at the time the foreclosure action was commenced (see Gameways, Inc., 101 AD2d at 888 [holding that commencement of suit did not bar pursuit of previously unavailable administrative remedy]). To hold otherwise would undermine the widespread and settled use of nonrecourse loans subject to guaranties triggered by certain springing recourse events.