My firm, my partner Ray Dowd and I are very proud of the recent victory in a case right out of Indiana Jones: the Secret of the Stolen Amulet. The DBM team investigated and compelled the return of a priceless centuries-old amulet to the Museum from which it was stolen by Russian soldiers during World War II.
The New York Law Journal report is here.
http://www.newyorklawjournal.com/PubArticleNY.jsp?id=1202556567318&Judges_Order_Return_of_Ancient_Gold_Tablet_to_Berlin_Museum
Thursday, May 31, 2012
Thursday, May 3, 2012
SDNY Local Counsel Supports Needed Security Pavillion for SDNY Courthouse
SDNY Local Counsel supports the efforts of the New York Congressional Delegation from both parties to push through needed security upgrades to the Daniel Patrick Moynihan Courthouse. Below is a brief run-down of the relevant facts:
Moynihan Courthouse Security Pavilion Security Needs
• After the September 11, 2001 attacks, it was determined by law enforcement that security at the Moynihan Courthouse was deficient.
• The Department of Homeland Security Report issued to the General Services Administration and The United States Courts points out that air intakes and security screening are inadequate.
• Recommendations include raising the fresh air intakes for the courthouse from ground level and the construction of a security screening pavilion outside of the main structure of the courthouse. Background on the Court
• The United States District Court for the Southern District of New York is the largest federal trial court by number of Judges.
• The Daniel Patrick Moynihan Courthouse houses more federal judges than any other federal building in the Country.
• The United States District Court for the Southern District of New York handles many high profile/high security cases (terrorism, international arms dealing, international drug smuggling, international high profile crimes, large securities cases, organized crime).
Security Pavilion, Air Intake and Backfill Project
• The request to fund the Security Pavilion and the Backfill of the United States Probation and Pretrial Offices was contained in the President’s 2011 budget request (combined $28 million).
• GSA appropriated $2 million for the design of the pavilion and backfill.
• The design of the pavilion has been completed up to the 90% drawings and General Services Administration is ready to release the contract.
• The estimated cost to complete the pavilion is $10 million.
Support for the Project
• Members of the New York Congressional Delegation from both parties have expressed support for the project. They include Senators Schumer and Gillibrand, Congressmen Grimm, King, Nadler, Rangel and Serrano.
• The United States Courts, United States Court of Appeals for the Second Circuit, United States District Court, the General Services Administration and the United States Marshals Service has committed to working together to complete the project. To that end, Chief Judge Loretta Preska and Edward Friedland (SDNY District Executive) were scheduled to meet with Commissioner Bob Peck on Wednesday, April 18, at 11:30 AM while in Washington.
Show your suport for these needed security upgrades by commenting below (SDNY Local Counsel will forward positive comments to the supporters of this project) and reaching out to your local bar association or trade association and asking them to contact the General Services Administration to register their support for this project.
Moynihan Courthouse Security Pavilion Security Needs
• After the September 11, 2001 attacks, it was determined by law enforcement that security at the Moynihan Courthouse was deficient.
• The Department of Homeland Security Report issued to the General Services Administration and The United States Courts points out that air intakes and security screening are inadequate.
• Recommendations include raising the fresh air intakes for the courthouse from ground level and the construction of a security screening pavilion outside of the main structure of the courthouse. Background on the Court
• The United States District Court for the Southern District of New York is the largest federal trial court by number of Judges.
• The Daniel Patrick Moynihan Courthouse houses more federal judges than any other federal building in the Country.
• The United States District Court for the Southern District of New York handles many high profile/high security cases (terrorism, international arms dealing, international drug smuggling, international high profile crimes, large securities cases, organized crime).
Security Pavilion, Air Intake and Backfill Project
• The request to fund the Security Pavilion and the Backfill of the United States Probation and Pretrial Offices was contained in the President’s 2011 budget request (combined $28 million).
• GSA appropriated $2 million for the design of the pavilion and backfill.
• The design of the pavilion has been completed up to the 90% drawings and General Services Administration is ready to release the contract.
• The estimated cost to complete the pavilion is $10 million.
Support for the Project
• Members of the New York Congressional Delegation from both parties have expressed support for the project. They include Senators Schumer and Gillibrand, Congressmen Grimm, King, Nadler, Rangel and Serrano.
• The United States Courts, United States Court of Appeals for the Second Circuit, United States District Court, the General Services Administration and the United States Marshals Service has committed to working together to complete the project. To that end, Chief Judge Loretta Preska and Edward Friedland (SDNY District Executive) were scheduled to meet with Commissioner Bob Peck on Wednesday, April 18, at 11:30 AM while in Washington.
Show your suport for these needed security upgrades by commenting below (SDNY Local Counsel will forward positive comments to the supporters of this project) and reaching out to your local bar association or trade association and asking them to contact the General Services Administration to register their support for this project.
Friday, March 2, 2012
Careful What You Wish For: Arbitration Provisions Can Get Lost In The Shuffle If You Amend An Agreement And Do Not Reference Arbitration In The Amendment
Broad arbitration provisions cannot compel parties to arbitrate claims not arising out of the subject matter covered by the arbitration agreement. A party to a contract must be careful when agreeing to subsequent or supplemental agreements because unless expressly referenced, the broad arbitration agreement in one contract may not cover a dispute arising out of the other contracts.
For example, in New Jersey, notwithstanding a very strong state public policy regarding compulsory counterclaims and joinder, the State case-law draws a bright line between claims that must be arbitrated under an agreement between the parties and claims that must be litigated (i.e. not added to the arbitration as a compulsory counterclaim or under a joinder rule). In short, in New Jersey, much like New York, a court will not compel a party to arbitrate a matter that the party has not expressly and knowingly agreed to arbitrate. This makes sense because agreeing to arbitrate is an agreement to waive or give up a right to access the courts and waiver of such an important right should not be treated lightly.
In New York, it’s a similar analysis. New York Courts are confronted daily with applications to compel or avoid arbitration – usually brought by “Orders to Show Cause” seeking emergency relief. The emergency is generally because once a party participates in an arbitration, they cannot later complain of waiving their right to litigate the matter. Because arbitration may be onerous – indeed, some litigants in certain situations may prefer to litigate in Court than pay an arbitrator and undergo an arbitration – parties to a dispute take the arbitration v. litigation issue very seriously.
In short, whichever the preference, a party to a dispute should not shoot first and answer questions later. Arbitration provisions in a contract should be carefully thought-out and, if there are amendments or supplemental agreements, the party’s choice to (or not to) arbitrate should be protected in those later agreements.
For example, in New Jersey, notwithstanding a very strong state public policy regarding compulsory counterclaims and joinder, the State case-law draws a bright line between claims that must be arbitrated under an agreement between the parties and claims that must be litigated (i.e. not added to the arbitration as a compulsory counterclaim or under a joinder rule). In short, in New Jersey, much like New York, a court will not compel a party to arbitrate a matter that the party has not expressly and knowingly agreed to arbitrate. This makes sense because agreeing to arbitrate is an agreement to waive or give up a right to access the courts and waiver of such an important right should not be treated lightly.
In New York, it’s a similar analysis. New York Courts are confronted daily with applications to compel or avoid arbitration – usually brought by “Orders to Show Cause” seeking emergency relief. The emergency is generally because once a party participates in an arbitration, they cannot later complain of waiving their right to litigate the matter. Because arbitration may be onerous – indeed, some litigants in certain situations may prefer to litigate in Court than pay an arbitrator and undergo an arbitration – parties to a dispute take the arbitration v. litigation issue very seriously.
In short, whichever the preference, a party to a dispute should not shoot first and answer questions later. Arbitration provisions in a contract should be carefully thought-out and, if there are amendments or supplemental agreements, the party’s choice to (or not to) arbitrate should be protected in those later agreements.
Wednesday, July 13, 2011
SDNY Local Counsel Reports on Supreme Court Long-Arm Decisions
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.
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, 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.
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