Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
On October 30, 2013, the Second Department issued a decision in Varveris v. Zacharakos, 2013 N.Y. Slip Op. 07028, examining when a corporate officer/director owes a fiduciary duty to the corporation’s shareholders.
In Varveris, the defendant was “a director, officer, shareholder, and managing agent of” a close corporation of which plaintiff was a shareholder. Defendant purchased another shareholder’s shares in the corporation. Plaintiff sued defendant for breach of fiduciary duty in connection with the sale, claiming that defendant had a duty to allow plaintiff to participate in the purchase. The Second Department held that defendant had no fiduciary duty to plaintiff in this situation, writing:
Contrary to the plaintiff’s contention, [defendant]’s status as an officer, director, or shareholder of a close corporation does not, by itself, create a fiduciary relationship as to his individual purchase of another shareholder’s stock.
(Emphasis added) (citations and internal quotations omitted).
Varveris illustrates the importance of context in determining whether someone is a fiduciary.
On October 29, 2013, the First Department issued a decision in Jumax Assoc. v. 350 Cabrini Owners Corp., 2013 NY Slip Op. 06992, illustrating the scope of the doctrine of res judicata. Jumax had
previously commenced an action in 2002 seeking to recover fees that had been paid to defendant co-op pursuant to a license agreement defendant had entered into in or about 1995 with a third-party cellular telephone company, as well as fees that would be paid through the time of judgment. At the time the action was commenced, the license agreement had been amended and extended three times. During the pendency of the prior action, the license agreement was amended and extended two more times.
Jumax lost the 2002 action. Jumax then initiated a new lawsuit “to recover amounts paid pursuant to the amendments entered into during the pendency of the prior action.” The First Department held that such claims were “barred by the doctrine of res judicata.” As the First Department noted, res judicata “applies not only to claims actually litigated but also to claims that could have been raised in the prior litigation.” (Citations and internal quotations omitted) (emphasis added).
Jumax shows that if you have claims and do not bring them in a pending action, you risk losing them forever.
On October 16, 2013, the Second Department issued a decision in Kalmon Dolgin Affiliates, Inc. v. Tonacchio, 2013 NY Slip Op. 06660, illustrating the importance of the documentary evidence prong of a motion to dismiss and its usefulness in dismissing a claim at the beginning of an action. In Kalmon Dolgin, the Second Department partially reversed an opinion by Justice Schmidt of the Kings County Commercial Division, holding that he should have granted a motion to dismiss based on documentary evidence establishing that the signatory to the contract was not actually binding his corporate affiliates to the agreement upon which they were being sued. The Second Department wrote:
Where a party offers evidentiary proof on a motion pursuant to CPLR 3211(a)(7), the focus of the inquiry turns from whether the complaint states a cause of action to whether the plaintiff actually has one. Here, the Supreme Court should have granted that branch of the moving defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the first cause of action insofar as asserted against Katan and 267. The evidentiary material submitted by the moving defendants demonstrated that the plaintiff’s allegation that it had entered into the letter agreement with Katan was “not a fact at all.” Specifically, the moving defendants’ submissions conclusively demonstrated that Katan was not a signatory to the letter agreement, and that 267 was not referenced in that agreement. Since the moving defendants established that neither Katan nor 267 were signatories to the letter agreement, Katan and 267 cannot be bound by it. Although the plaintiff alleged in an affidavit submitted by its president in opposition to the moving defendants’ motion that it was led to believe that Tonacchio was a managing member of 267 and an officer, director, or shareholder of Noreast, and that Tonacchio was authorized to bind all parties to the letter agreement, there is nothing in the letter agreement to suggest that, in signing it, Tonacchio was also binding 267 or Katan to the terms of the letter agreement.
(Citations and internal quotations omitted).
On October 9, 2013, we noted that on October 15, 2013, the Court of Appeals would be hearing argument in Cruz v. TD Bank NA., Docket No. 191, an appeal addressing two questions certified from the US Court of Appeals for the Second Circuit relating to a private right of action for money damages and injunctive relief against banks that violate the Exempt Income Protection Act (EIPA)’s procedural requirements. Both the hearing transcript and a video of oral argument are now available on the court’s website.
On October 24, 2013, the First Department, in a 3-2 decision, issued a decision in BDC Finance L.L.C. v. Barclays Bank PLC, 2013 NY Slip Op. 06963, enforcing a contract in a way that created a significant burden on one party but not the other. This apparent unfair result was due to a “notwithstanding” clause similar to the clause examined in the First Department decision that was a subject of our October 24, 2013 post: “Notwithstanding” Clause Controls Contract Even When It Reads Other Term Out of the Contract.”
The BDC Finance majority (Saxe, DeGrasse, and Richter, JJ.) held that Barclays breached its contract with the plaintiff hedge fund by not immediately complying with the hedge fund’s demand that Barclays return certain collateral pledged to secure a derivative transaction, even though Barclays disputed the amount of collateral that had to be returned. The majority held:
The plain and unambiguous language of the Delivery of Collateral clause requires Barclays to transfer any Return Amount demanded by BDC no later than the business day following the demand. This obligation is unconditional and absolute and exists “[n]otwithstanding anything in the [CSA] to the contrary.” Thus, the Delivery of Collateral clause expressly supercedes the form language in the CSA which would have otherwise permitted Barclays to dispute before paying.
Because this provision was part of a group of agreements that were “negotiated by two sophisticated commercial entities,” the majority would “not, in the guise of contractual interpretation, alter the plain language of the clause.”
The dissenters (Andrias and Gische, JJ.), however, disagreed, and interpreted the contracts as permitting Barclays to refuse to honor the hedge fund’s capital call while the parties made use of the contractually agreed-upon dispute resolution procedures: “[t]he court will endeavor to give the [contract] [the] construction most equitable to both parties instead of the construction which will give one of them an unfair and unreasonable advantage over the other” because “[i]t is highly unlikely that two sophisticated business entities, each represented by counsel, would have agreed to such a harshly uneven allocation of economic power under the Agreement” (citations omitted).
In conclusion, the First Department, albeit by a bare majority, has held sophisticated parties to the plain language of the “notwithstanding clauses” in their contracts, no matter how onerous the result. Lawyers should keep this in mind in drafting and performing contracts. Those who expect a court to ignore contract provisions that are unfair to their clients may be disappointed.
On October 21, 2013, Justice Ramos of the New York County Commercial Division issued a decision in Wyle Inc. v. ITT Corp., 2013 NY Slip Op. 51707(U), addressing the availability of a fraudulent inducement claim based on a breach of warranty.
In Wyle, defendant ITT argued that a fraud claim based on a warranty in an agremeent “must be dismissed as duplicative of Plaintiffs’ breach of contract claim.” Justice Ramos disagreed, writing that:
generally “a cause of action for fraud does not arise when the only fraud charged relates to a breach of contract.” However, “if a plaintiff alleges that it was induced to enter into a transaction because a defendant misrepresented material facts, the plaintiff has stated a claim for fraud even though the “same circumstances give rise to the plaintiff’s breach of contract claim.” “Unlike a misrepresentation of future intent to perform, a misrepresentation of present facts is collateral to the contract . . . and therefore involves a separate breach of duty.”
A warranty in a contract, Justice Ramos explained, “is a misrepresentation of present fact and cannot be characterized merely as an insincere promise to perform.” As far as the reasonableness of plaintiff’s reliance on the warranty, Justice Ramos noted that
The Court of Appeals has held that in contract negotiations between sophisticated entities, the justifiable reliance prong of a fraud claim can be sufficiently alleged where the plaintiff has gone to the trouble to insist on a written representation that certain facts are true, it will often be justified in accepting that representation rather than making its own inquiry.
The lesson is clear for both litigators and transactional lawyers. Warranties in a contract provide strong protection against unpleasant surprises after a deal is consummated and can be relied upon in subsequent litigation.
On October 22, 2013, the First Department issued a decision in Warburg Opportunistic Trading Fund, L.P. v. GeoResources, Inc., 2013 N.Y. Slip Op. 06826, holding that a “notwithstanding” clause trumps all other clauses in a contract, even when that clause would effectively read another clause out of the agreement.
The appeal arose out of seemingly inconsistent anti-dilution provisions in warrants issued by the defendant that gave the holder the right to purchase certain number of shares of defendant’s common stock at an exercise price of $32.43 per share. The anti-dilution provisions of the warrants contained formulae for adjustments of the exercise price, but also stated: “Notwithstanding any other provisions of Section 8(f) to the contrary, no adjustment provided for in Section 8(f) shall result in a reduction of the Exercise Price to an amount less than $32.43 per Warrant Share (as appropriately adjusted for the occurrence of any events listed in [other anti-dilution clauses of Section 8]).” This in effect read Section 8(f) out of the agreement. As the First Department noted:
Here, the “notwithstanding” provision in Section 8(h) clearly overrides any conflicting provisions in Section 8(f). To the extent that Section 8(h) sets the floor price of purchasable warrant shares at $32.43 — the initial exercise price listed in the warrant — it renders the adjustment formula in Section 8(f) impotent. To be sure, one is compelled to wonder how Section 8(f)’s formula could have any effect whatsoever if 8(h)’s “notwithstanding” clause prevents the reduction of the initial exercise price of $32.43 to a lower amount. Nonetheless, the “notwithstanding” clause governs the contract, despite the presence of conflicting provisions. Plaintiffs are sophisticated institutional investors, and they could have appreciated the effect of Section 8(h)’s trumping language.
The bottom line is that, absent sufficiently pled allegations of fraudulent inducement or mistake, the Commercial Division and First Department will hold sophisticated parties to their contracts, even a “notwithstanding” clause that reads an entire provision out of a contract.
In an effort to foster communication between the Commercial Division bench and bar, from time to time we will be posting interviews with sitting or retired Commercial Division justices and court staff. Retired Nassau County Commercial Division Justice Ira B. Warshawsky has graciously agreed to serve as our inaugural interviewee from his new home at Meyer Suozzi English & Klein, P.C.’s Litigation and Alternative Dispute Resolution Practice. Before retiring, Justice Warshawsky served as a Supreme Court Justice for fourteen years, the last ten of which were in the Commercial Division. In addition to his judicial duties, Justice Warshawsky has served as a director of the Nassau Bar, is the former Dean of the Nassau Academy of Law, is a frequent lecturer for the National Institute of Trial Advocacy, has served as a contributing editor of the Benchbook for New York Trial Judges, was the past-President and charter member of the American College of Business Court Judges, and is a member of the Advisory Board of the Sedona Conference.
With deep appreciation to the Justice, here are ten questions for Justice Warshawsky:
While we normally do not blog about Second Circuit decisions, that court’s decision in Licci v. Lebanese Canadian Bank, SAL, No. 10-1306-cv (October 18, 2013), shows the difficulties that can arise when state and federal appellate courts interpret New York law differently.
Licci involves claims by American, Canadian, and Israeli citizens who were killed in rocket attacks in Israel that were carried out by Hizballah (aka Hezbollah) in 2006. Instead of suing their attackers, the Licci plaintiffs sued the banks that their attackers used to facilitate the logistics of carrying out the attacks: Lebanese Canadian Bank (“LCB”), a Lebanese bank with no operations, employees, or branches in the United States, and American Express Bank Ltd. (“Amex”). LCB maintained a correspondent bank account with Amex in New York. According to plaintiffs, LCB used this correspondent account to wire millions of dollars on behalf of Hizballah knowing that these wire transfers would enable Hizballah to carry out its rocket attacks.
On October 17, 2013, Justice Bucaria of the Nassau County Commercial Division issued a decision in National Grid Corporate Services, LLC v. LeSchack & Grodensky, P.C., 2013 N.Y. Slip Op. 23354, highlighting a significant procedural difference between litigating commercial cases in New York’s state and federal courts: which claims can be tried by a judge versus a jury. Unlike federal courts, New York does not permit a jury trial where claims seeking legal relief and claims seeking equitable relief are alleged in the same complaint. Indeed, a jury trial can be lost even if a plaintiff’s initially-pled equitable claims are subsequently withdrawn or dismissed, leaving only the claims seeking money damages to be tried.
National Grid Corporate Services (actually two cases that were consolidated) involves a dispute between a law firm and its former client over unpaid legal fees. The claims asserted by the client included declaratory relief that the client had terminated the law firm for cause, a claim for disgorgement of legal fees, an alternative claim for quantum meruit if the client was found not to have terminated the law firm for cause, conversion, unjust enrichment, monies had and received, and breach of fiduciary duty, an accounting, a declaratory judgment for a retaining lien, and a breach of contract claim relating to a collection services agreement. The law firm initially filed a note of issue seeking a jury trial but subsequently moved to withdraw its jury demand, which it could do only if the former client consented or if it was not entitled to a jury trial in the first place. Justice Bucaria granted the motion to withdraw the jury demand on the ground that the former client’s unjust enrichment claim (even though it sought money damages) was an equitable claim and thus defeated the right to a jury trial.
The lesson to be learned from this decision is that, as tempting as it is to plead alternative causes of action in a complaint, sometimes plaintiff’s counsel can plead away the plaintiff’s right to a jury trial by including duplicative equitable claims along with legal claims for money damages. This may be an awfully high price to pay for the alternative relief requested.