In a well-attended CLE, SDNY Local Counsel author, yours truly, and Prof. Pfeffer, SDNY Local Counsel contributor, presented on the Supreme Court's recent decisions in:
J. McIntyre Machinery Ltd. v. Nicastro, U.S., No. 09-1343 (certiorari petition granted 9/28/10),
and
Goodyear Luxembourg Tires SA v. Brown, U.S., No. 10-76 (certiorari petition granted 9/28/10).
Special thanks to the New York County Lawyers Association and the SDNY Chapter of the Federal Bar Association for co-sponsoring the event.
In J. McIntyre Machinery Ltd. v. Nicastro, the New Jersey Supreme Court found jurisdiction valid in that state over an out-of-state manufacturer. That manufacturer had sold its machine to an Ohio distributor, who then sold it at a Nevada trade show to the company that employed plaintiff, who, in turn, was injured by the machine in New Jersey.
In Goodyear Luxembourg Tires SA v. Brown, the North Carolina Court of Appeals found that jurisdiction was valid over an out-of-state manufacturer of tires based on its sale in North Carolina, even though the plaintiff was injured overseas and the events of the law suit had no connection to North Carolina, other than the fact that plaintiffs lived there.
The U.S. Supreme Court's unanimous decision in Goodyear comes as no surprise. The Court reigned in a lower court practice of finding "general jurisdiction" based upon contacts with the state -- usually in sympathetic cases where the lower courts could not deem the lawsuit as "arising out of" certain contacts with the state. In short, after Goodyear, there should not be a finding of "general jurisdiction" unless the defendant is "at home" in the state. Being at home means that the forum is the home state of the person or company or that person or company has such pervasive contacts that the state is like a second home (which should be rare).
The Court's plurality decision in Nicastro, however, is not so simple. The decision is a must read for any Supreme Court-watcher because of the interplay between the competing plurality, concurrence and dissent is fascinating.
Still, despite the plurality's attempt to go back to basics and phrase the analysis as a state's sovereignty meets due process issue, there remains numerous open questions and no true clarity. In fact, the concurrence and dissent indicate that the due process limitations of long-arm statutes in the new age of global markets and e-commerce is still an open question.
The take-aways from Nicastro that we at SDNY Local Counsel find interesting are:
(i) the phrase "stream of commerce" is no more than a metaphor and not a doctrine that can answer jurisdictional questions in the absolute. In short, the Supreme Court has emphasized the need for a minimum contacts analysis and that putting a product in the "stream of commerce" may be just one factor in such an analysis. Indeed, without more, the stream of commerce metaphor may be insufficient to sustain an assertion of jurisdiction.
(ii) the plurality's criticism of foreseeability as a touchstone for the due process limits of long-arm jurisdiction (which appears to require more than simply putting a product in the stream of commerce that causes injury in the state) may run up against New York's long-arm statute which contemplates jurisdiction when a defendant:
[§302 (a): ]
3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he
(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or
(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or …
In sum, clarity is not forthcoming from the Court on the due process limitations on long-arm jurisdiction and may not be taken up again any time soon.
Wednesday, July 13, 2011
Wednesday, May 25, 2011
Does The Newmark Case "Clarify" When A Contract Is Enforceable In New York?
On January 13, 2011, the Appellate Division, First Department found that , in some cases, an email with a signature line can satisfy New York's statute of fruads. Accordingly, in New York, if you are sending a final (but unsigned) contract to another party and do NOT want to be considered to have executed the contract (i.e. it is still subject to approval for example), you should ALWAYS state NOT FINAL or SUBJECT TO APPROVAL AND EXECUTION. Otherwise, a New York Court may hold you to that contract.
The important section of the case is excerpted here (and the full case is provided below):
An e-mail sent by a party, under which the sending party's name is typed, can constitute a writing for purposes of the statute of frauds (see General Obligations Law § 5-701 [b] [4]; Stevens v Publicis S.A., 50 AD3d 253, 255-256 [2008], lv dismissed 10 NY3d 930 [2008]). Defendant does not dispute its authorship of the e-mails, nor that they were sent by its agent, and contrary to defendant's claims, there is no evidence that it rejected the final e-mail sent by plaintiff, which incorporated defendant's revisions. The e-mail agreement set forth all relevant terms of the agreement, including the particular commission charged by plaintiff, and thus, constituted a meeting of the minds (cf. Naldi v Grunberg, 80 AD3d 1, 13-14 [2010]).
Full case:
2011 NY Slip Op 00158 [80 AD3d 476]
January 13, 2011
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 9, 2011
Newmark & Company Real Estate Inc., Appellant,
v
2615 East 17 Street Realty LLC, Respondent, and Wilk Real Estate I, LLC, et al., Intervenors-Respondents.
—[*1] Law Office of Lionel A. Barasch, New York (Lionel A. Barasch of counsel), for appellant.
Sol Mermelstein, Brooklyn, for 2615 East 17 Street Realty LLC, respondent.
Arnold J. Ludwig, Brooklyn, for Wilk Real Estate I, LLC and Albert Wilk, respondents.
Order, Supreme Court, New York County (Joan M. Kenney, J.), entered April 16, 2010, which, insofar as appealed from, in this action alleging a breach of contract, denied plaintiff's motion for summary judgment, unanimously reversed, on the law, with costs, and the motion granted in the principal amount of $124,415, plus interest from June 25, 2009. The Clerk is directed to enter judgment accordingly. Appeal from order, same court and Justice, entered April 15, 2010, which granted the motion of Wilk Real Estate I, LLC and Albert Wilk to intervene, unanimously dismissed, without costs, as academic.
In the lease between defendant, as the landlord, and nonparty tenant, which was brought into the transaction by plaintiff broker, the subscribing parties represented that plaintiff was the exclusive broker for the transaction and that defendant would pay its commission. This clear representation, which was supported by additional documentary evidence, entitled plaintiff to its commission as a matter of law (Morris Cohon & Co. v Russell, 23 NY2d 569, 574-575 [1969]; Helmsley-Spear, Inc. v New York Blood Ctr., 257 AD2d 64 [1999]). We reject defendant's claim that the relevant provision does not mean what it says, but resulted from a scrivener's error (see Edward S. Gordon Co. v Blodnick, Schultz & Abramowitz, 150 AD2d 212 [1989], lv denied 74 NY2d 613 [1989]).
Although defendant did not sign the separate brokerage agreement proffered by plaintiff setting forth the details of its commission, that fact is not fatal either under the statute of frauds or as to enforceability. Several e-mail communications, supported by other documentary evidence, reflected that plaintiff and defendant were in regular contact negotiating the lease and, when the parties appeared close to agreeing to the lease terms, plaintiff e-mailed defendant a draft brokerage agreement, setting forth, inter alia, the particular commission that had been discussed. Plaintiff invited defendant's revisions and defendant sent back, also by e-mail, [*2]handwritten revisions, which did not modify the commission, but only provided that it would be paid in specified increments. Plaintiff incorporated those revisions and sent the final copy back to defendant's agent, and the record contains no evidence that defendant objected to, protested, or rejected any of the provisions in the last version of the agreement.
An e-mail sent by a party, under which the sending party's name is typed, can constitute a writing for purposes of the statute of frauds (see General Obligations Law § 5-701 [b] [4]; Stevens v Publicis S.A., 50 AD3d 253, 255-256 [2008], lv dismissed 10 NY3d 930 [2008]). Defendant does not dispute its authorship of the e-mails, nor that they were sent by its agent, and contrary to defendant's claims, there is no evidence that it rejected the final e-mail sent by plaintiff, which incorporated defendant's revisions. The e-mail agreement set forth all relevant terms of the agreement, including the particular commission charged by plaintiff, and thus, constituted a meeting of the minds (cf. Naldi v Grunberg, 80 AD3d 1, 13-14 [2010]).
In view of the foregoing, plaintiff's challenges to the order granting the motion to intervene are academic. Concur—Tom, J.P., Sweeny, Freedman, Richter and Abdus-Salaam, JJ.
The important section of the case is excerpted here (and the full case is provided below):
An e-mail sent by a party, under which the sending party's name is typed, can constitute a writing for purposes of the statute of frauds (see General Obligations Law § 5-701 [b] [4]; Stevens v Publicis S.A., 50 AD3d 253, 255-256 [2008], lv dismissed 10 NY3d 930 [2008]). Defendant does not dispute its authorship of the e-mails, nor that they were sent by its agent, and contrary to defendant's claims, there is no evidence that it rejected the final e-mail sent by plaintiff, which incorporated defendant's revisions. The e-mail agreement set forth all relevant terms of the agreement, including the particular commission charged by plaintiff, and thus, constituted a meeting of the minds (cf. Naldi v Grunberg, 80 AD3d 1, 13-14 [2010]).
Full case:
2011 NY Slip Op 00158 [80 AD3d 476]
January 13, 2011
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 9, 2011
Newmark & Company Real Estate Inc., Appellant,
v
2615 East 17 Street Realty LLC, Respondent, and Wilk Real Estate I, LLC, et al., Intervenors-Respondents.
—[*1] Law Office of Lionel A. Barasch, New York (Lionel A. Barasch of counsel), for appellant.
Sol Mermelstein, Brooklyn, for 2615 East 17 Street Realty LLC, respondent.
Arnold J. Ludwig, Brooklyn, for Wilk Real Estate I, LLC and Albert Wilk, respondents.
Order, Supreme Court, New York County (Joan M. Kenney, J.), entered April 16, 2010, which, insofar as appealed from, in this action alleging a breach of contract, denied plaintiff's motion for summary judgment, unanimously reversed, on the law, with costs, and the motion granted in the principal amount of $124,415, plus interest from June 25, 2009. The Clerk is directed to enter judgment accordingly. Appeal from order, same court and Justice, entered April 15, 2010, which granted the motion of Wilk Real Estate I, LLC and Albert Wilk to intervene, unanimously dismissed, without costs, as academic.
In the lease between defendant, as the landlord, and nonparty tenant, which was brought into the transaction by plaintiff broker, the subscribing parties represented that plaintiff was the exclusive broker for the transaction and that defendant would pay its commission. This clear representation, which was supported by additional documentary evidence, entitled plaintiff to its commission as a matter of law (Morris Cohon & Co. v Russell, 23 NY2d 569, 574-575 [1969]; Helmsley-Spear, Inc. v New York Blood Ctr., 257 AD2d 64 [1999]). We reject defendant's claim that the relevant provision does not mean what it says, but resulted from a scrivener's error (see Edward S. Gordon Co. v Blodnick, Schultz & Abramowitz, 150 AD2d 212 [1989], lv denied 74 NY2d 613 [1989]).
Although defendant did not sign the separate brokerage agreement proffered by plaintiff setting forth the details of its commission, that fact is not fatal either under the statute of frauds or as to enforceability. Several e-mail communications, supported by other documentary evidence, reflected that plaintiff and defendant were in regular contact negotiating the lease and, when the parties appeared close to agreeing to the lease terms, plaintiff e-mailed defendant a draft brokerage agreement, setting forth, inter alia, the particular commission that had been discussed. Plaintiff invited defendant's revisions and defendant sent back, also by e-mail, [*2]handwritten revisions, which did not modify the commission, but only provided that it would be paid in specified increments. Plaintiff incorporated those revisions and sent the final copy back to defendant's agent, and the record contains no evidence that defendant objected to, protested, or rejected any of the provisions in the last version of the agreement.
An e-mail sent by a party, under which the sending party's name is typed, can constitute a writing for purposes of the statute of frauds (see General Obligations Law § 5-701 [b] [4]; Stevens v Publicis S.A., 50 AD3d 253, 255-256 [2008], lv dismissed 10 NY3d 930 [2008]). Defendant does not dispute its authorship of the e-mails, nor that they were sent by its agent, and contrary to defendant's claims, there is no evidence that it rejected the final e-mail sent by plaintiff, which incorporated defendant's revisions. The e-mail agreement set forth all relevant terms of the agreement, including the particular commission charged by plaintiff, and thus, constituted a meeting of the minds (cf. Naldi v Grunberg, 80 AD3d 1, 13-14 [2010]).
In view of the foregoing, plaintiff's challenges to the order granting the motion to intervene are academic. Concur—Tom, J.P., Sweeny, Freedman, Richter and Abdus-Salaam, JJ.
Thursday, May 5, 2011
Friday, April 8, 2011
E-Discovery Lessons Direct From The Federal Bar Association
For those of you wrestling with E-discovery and Rule 26 of the Federal Rules of Civil Procedure (FRCP) discovery obligations, the FBA Website recently featured two thoughtful pieces on E-discovery in The Federal Lawyer magazine:
Local Practices for Electronic Discovery
by Anne Shea Gaza and Jason J. Rawnsley
and
Creating the Criteria and the Process for Selection of E-Discovery Special Masters in Federal Court
by the Hon. Nora Barry Fischer and Richard N. Letttieri
also, access FBA website here.
SDNY Local Counsel supports the FBA and SDNY Local Counsel author, Luke McGrath, is Membership Chair for the FBA SDNY Chapter, so ...
why not join?
Tell them Luke sent you.
Local Practices for Electronic Discovery
by Anne Shea Gaza and Jason J. Rawnsley
and
Creating the Criteria and the Process for Selection of E-Discovery Special Masters in Federal Court
by the Hon. Nora Barry Fischer and Richard N. Letttieri
also, access FBA website here.
SDNY Local Counsel supports the FBA and SDNY Local Counsel author, Luke McGrath, is Membership Chair for the FBA SDNY Chapter, so ...
why not join?
Tell them Luke sent you.
Friday, March 25, 2011
NY Court of Appeals Rules on Internet-Related Jurisdiction
As reported in today's New York Law Journal, the New York Court of Appeals has ruled on a case in which a New York based publisher sought to hale out-of-state defendants into New York court based on the injuries suffered in New York as a result of the unauthorized down-load of copyrighted materials -- even though the suspect internet "down-loads" or other transaction activity took place as far away as Arizona and Oregon.
The case, Penguin Group (USA) Inc. v. American Buddha, No. 7, involved New York's long-arm statute and internet downloads of copyrighted material.
According to the Court, the fact that the internet is so pervasive distinguishes the case "from traditional commercial tort cases where courts have generally linked the injury to the place where sales or customers are lost."
In keeping with SDNY Local Counsel's commitment to monitor cases that may impact jurisdictional questions in state and federal Courts in New York, SDNY local counsel will keep you all updated on further developments ...
The case, Penguin Group (USA) Inc. v. American Buddha, No. 7, involved New York's long-arm statute and internet downloads of copyrighted material.
According to the Court, the fact that the internet is so pervasive distinguishes the case "from traditional commercial tort cases where courts have generally linked the injury to the place where sales or customers are lost."
In keeping with SDNY Local Counsel's commitment to monitor cases that may impact jurisdictional questions in state and federal Courts in New York, SDNY local counsel will keep you all updated on further developments ...
Wednesday, March 16, 2011
U.S. Supreme Court To Rule On Constitutional Limits (If Any) To Long-Arm Jurisdiction
SDNY Local Counsel blog-author, Luke McGrath, and Prof. Robert Pfeffer, a contributor to SDNY Local Counsel blog, gave a successful talk on March 24, 2011 on the upcoming decisions on cases pending in the United States Supreme Court on the extent courts throughout the United States may exercise jurisdiction over non-residents based upon certain types of contacts with a state. The talk was sponsored by the SDNY Chapter of the Federal Bar Association and the New York County Lawyers Association.
The two cases pending before the Court are:
J. McIntyre Machinery Ltd. v. Nicastro, U.S., No. 09-1343 (certiorari petition granted 9/28/10)
Goodyear Luxembourg Tires SA v. Brown, U.S., No. 10-76 (certiorari petition granted 9/28/10).
NYCLA and the SDNY Chapter of the Federal Bar Association are co-sponsoring the event.
See previous postings on this blog for a discussion of the cases.
During the talk we played excerpts from the oral argument before the Court. The audio of oral argument accentuated our discussion and great audience participation rounded out the event.
Thanks to everyone, including Tim Dougherty and Aleksandra Kaplun, for their support and participation in this successful event.
The two cases pending before the Court are:
J. McIntyre Machinery Ltd. v. Nicastro, U.S., No. 09-1343 (certiorari petition granted 9/28/10)
Goodyear Luxembourg Tires SA v. Brown, U.S., No. 10-76 (certiorari petition granted 9/28/10).
NYCLA and the SDNY Chapter of the Federal Bar Association are co-sponsoring the event.
See previous postings on this blog for a discussion of the cases.
During the talk we played excerpts from the oral argument before the Court. The audio of oral argument accentuated our discussion and great audience participation rounded out the event.
Thanks to everyone, including Tim Dougherty and Aleksandra Kaplun, for their support and participation in this successful event.
Wednesday, January 12, 2011
A is for ... the ABC's of Dispute Resolution -- Author Book-Reading
SDNY Local Counsel is honored to have participated in the organization and sponsorship of a banner-event book-reading in which Victoria Pynchon read from her naughtily titled book: A is for A**hole: The Grownups’ ABCs of Conflict Resolution.
The SDNY Chapter of the Federal Bar Association sponsored the event and a great time was had by all.
The SDNY Chapter of the Federal Bar Association sponsored the event and a great time was had by all.
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