Muhammad U. Faridi, Partner

In our recent article What Rejected Renren Settlement Means for Investor Suits, we analyzed Justice Andrew Borrok’s decision rejecting a proposed $300 million settlement between Renren, Inc. (“Renren”) and minority shareholders in In re: Renren Inc. Derivative Litigation.[i] The article noted certain unresolved issues following Justice Borrok’s rejection of the settlement, including two issues that have been raised in recent rulings or filings: (1) the proper record date to be used to determine the minority shareholders who are entitled to potential recoveries, and (2) whether a prejudgment attachment order imposing restrictions on defendants’ transfer or sale of assets in an amount up to $560 million will remain in place. 

In Arco Acquisitions, LLC v. Tiffany Plaza LLC, Justice Elizabeth Hazlitt Emerson of the Suffolk County Commercial Division granted defendants’ motion to dismiss Arco’s lawsuit, which alleged that defendants committed fraud in the sale of commercial real estate by misrepresenting incoming rent to inflate the value of the property.[1]  The Court found that the parties’ contract provided that Arco assumed all responsibility to investigate the property’s leases and tenancies, and held that the contractual disclaimer precluded Arco from claiming that it entered into the agreement due to fraudulent representations about the rent roll.

On October 4, 2021, Chief Administrative Judge Lawrence K. Marks promulgated Rule 35 of the Rules of Practice for the Commercial Division to require corporate entities litigating or seeking to intervene in cases to submit statements disclosing any corporate parent or publicly held companies that are sufficiently invested in the party or proposed intervenor.

Forum selection clauses are a common feature of commercial arrangements, allowing contracting parties to opt out of default procedural rules and determine ex ante which state will have jurisdiction over any future dispute arising from the agreement and even the particular venue where that dispute must be resolved.  But as parties are often reminded, opting out of these default principles—whether jurisdiction or venue, or both—requires clarity and specificity.

In Certain Underwriters at Lloyd’s v. AT&T Corp.,[1] Justice Cohen of the New York County Commercial Division Court granted a motion for partial summary judgment and determined that Nokia, through its predecessor Lucent, had the right by assignment to seek coverage under certain insurance policies issued to AT&T that contained anti-assignment clauses.  Although the general rule in New York is that such anti-assignment clauses are enforceable, this decision highlights how it can be more challenging to bar assignment in the special context of an insurance policy.

If a party hires an investment advisor that goes on to allegedly systematically abuse its role by engaging in self-dealing in violation of its contractual obligations and fiduciary duties, when does the applicable statute of limitations period begin?  Does the wrongdoing give rise to a single claim with a single statute of limitations period starting at the first incident of self-dealing, or does each individual incident of self-dealing give rise to multiple new claims, each with a new statute of limitations period?  In other words, is there just one wrong, with continuing effects, or a series of wrongs?  And what is the effect of a contractual provision that imposes ongoing obligations on the statute of limitations inquiry?  These questions are not only conceptually challenging.  When that investment advisor accused of malfeasance has been managing a multi-billion dollar portfolio for many years, the consequences for when the advisee can bring a timely claim in New York State are significant.

Can the purchasers of promissory notes containing non-New York forum-selection clauses enforce the notes in the Commercial Division?  Not without an extraordinary showing as to why the clauses should be set aside, according to Commercial Division Justice Elizabeth Emerson’s recent decision in Stein v. United Wind, Inc.  In Stein, Justice Emerson granted a motion to dismiss an action to enforce promissory notes where the notes designated Delaware as the exclusive forum for any disputes arising in connection with the notes. 

In a recent decision in SL Globetrotter L.P., Global Blue Group Holding AG v. Suvretta Capital Management, LLC, Toms Capital Investment Management LP, Justice Peter Sherwood declined to dismiss plaintiffs’ breach of contract claims, which arose out of a dispute over investment, through a special purpose acquisition vehicle (“SPAC”), in a new public company.[1]  The opinion sheds light on the interpretation of conditions precedent in a contract, particularly when they deal with the consistency of relevant financial information.

On February 11, 2021, the New York State Unified Court System issued Virtual Bench Trial Protocols and Procedures (“Protocols and Procedures”) in light of the ongoing Covid-19 pandemic.  While “Virtual Bench Trials are, in all respects, identical to In-Person Courtroom Bench Trials[,]….certain modifications are necessary regarding the presentation of testimonial, documentary, and physical evidence in order to safeguard accuracy and ensure reliability.”

In Farro v. Schochet, the Second Department recently held that §1002 of the NY LLC Law restricted a dissenting member’s remedy to an appraisal for the fair value of his interest in the business after a freeze-out merger.  Thus, the Court reduced the legal remedies for a minority LLC member that lacked protections in the operating agreement against the merger.

Over the past several months, many disputes have arisen over whether the COVID-19 pandemic or government responses to it provide, depending on the jurisdiction, an impossibility or impracticability defense for nonperformance under a contract. Now, we are beginning to see a flood of decisions addressing that defense.

In Sutton 58 Associates LLC v. Pilevsky, the New York Court of Appeals recently held in a 4-3 split decision that, under certain circumstances, bankruptcy law does not preempt a lender’s state law claims against third-party non-debtors for tortious interference with a contract between the lender and the debtor.  This decision preserves a state forum for lenders asserting claims that: 1) involved “wrongful conduct by non-debtor defendants that occurred prior to the bankruptcy proceeding,” and 2) are “grounded in independent contractual obligations."

In Fava v. Morgan Stanley Smith Barney, Inc., Justice Barry R. Ostrager of the New York County Commercial Division denied Petitioner Frank Fava’s (“Fava”) motion to vacate an arbitration award issued by the Financial Industry Regulatory Authority (“FINRA”), and granted Respondent Morgan Stanley Smith Barney, Inc’s (“Morgan Stanley”) request to confirm the award.  The opinion addresses whether a party who objects to an arbitration panel’s jurisdiction but participates in arbitration may vacate an arbitral award on the ground that the arbitrators exceeded the scope of their authority.

New York Business Corporation Law § 1104-a empowers a holder of 20% or more of a closely held corporation’s stock to petition for that corporation’s dissolution on the grounds that, inter alia, the controlling shareholders have committed “illegal, fraudulent or oppressive actions toward the complaining shareholders.”

In a recent order, Justice Andrea Masley assigned a special discovery master to supervise discovery in Hindlin v. Prescriptions Songs LLC, et al., a “complex commercial action” with a “multitude of discovery issues[.]” The decision underscores the constraints placed on the Commercial Division in light of the ongoing pandemic and cuts to the budget of the state’s judiciary.

On September 23, 2020, Chief Administrative Judge Marks amended Commercial Division Rule 11-g and the Division’s Standard Form Confidentiality Order (“SFO”) to allow parties to designate certain documents as highly confidential for attorney’s eyes only (“AEO”). Such a designation already exists in federal court, and it will be useful in the Commercial Division in matters involving particularly confidential issues such as the disclosure of confidential business information between competitors and disclosure of trade secrets.

A common question in the wake of the COVID-19 outbreak has been whether the pandemic or governmental responses to the pandemic provide, depending on the jurisdiction, an impossibility or impracticability defense for nonperformance under a contract.

The answer to that question will, of course, turn on the facts underlying the nonperformance, as well as the law of the jurisdiction. Two recent decisions from New York are instructive on the contours of the defense of impossibility — the relevant defense under New York law.

In GMX Technologies, LLC v. Pegasus Capital Advisors, L.P., Justice Andrea Masley of the New York County Commercial Division denied Defendants Pegasus Capital Advisors, L.P. (“Pegasus”) and The Leiber Group Inc.’s (“Leiber”) (collectively, “Defendants”) motion to dismiss a claim for declaratory judgment seeking to bar Leiber from exercising a put option in connection with its membership interest in Plaintiff GMX Technologies, LLC (“GMX”).  The opinion addressed whether a Delaware LLC member may exercise a put option when doing so would force the LLC into insolvency.

The New York County Commercial Division saw a substantial increase in the number of new cases filed (i.e.,a total of 102 new cases) during the first four-week span after the New York courts re-opened for non-essential matters on May 25, 2020—as compared to both February 2020 (77 new cases), the last full month of filings prior to the crisis, and a comparable period between May 27 and June 23, 2019 (87 new cases).

In a recent decision in South College Street, LLC v. Ares Capital Corporation, Justice Schechter of the New York State Supreme Court, Commercial Division, dismissed petitioner’s New York Debtor and Creditor Law claims, which were premised on alter ego liability. The opinion addressed the types of allegations a plaintiff must make in order to successfully plead a veil-piercing claim.

The reverberations from the collapse of Bernie Madoff’s massive Ponzi scheme continue to be felt in Manhattan’s Commercial Division.  On May 20, 2020, Judge Joel M. Cohen issued a decision in Matter of FGLS Equity LLC, No. 157170/2019, 2020 WL 2557877, 2020 NY Slip Op 31476(U) (Sup. Ct., N.Y. Ctny., May 20, 2020), approving the liquidation plan of FGLS Equity LLC, which was founded by accountant Steven Mendelow as a feeder fund to Bernard L. Madoff Investment Securities (BLMIS).  Mendelow, who passed away in 2016, was allegedly instrumental in funneling investors to the scheme.  The decision is notable, not least because it may be the first New York case in which a court has been asked to pass judgment on an LLC plan of liquidation proposed by a liquidator appointed by the LLC’s members pursuant to its operating agreement. 

A recent Commercial Division decision provides an example of a court rejecting “unrealistic and optimistic” business projections in determining the valuation of a petitioner’s shares in a corporation.  In Magarik v. Kraus USA, Inc., Index No. 606128/2015, Doc. No. 252 (Sup. Ct., Nassau Cnty. Apr. 28, 2020), Justice DeStefano refused to credit the valuation made by the petitioner’s expert, which depended heavily on a set of projections that the corporation at issue made in the process of obtaining a loan.

In Yakuel v. Gluck, Justice Joel M. Cohen of the New York County Commercial Division denied Petitioners’ application to confirm an appraisal award and denied Respondent Andrew Gluck’s (“Gluck”) cross-petition to vacate the same award in connection with the appraisal of Gluck’s ownership interest in Agency Within LLC (“Agency Within”), a digital marketing company.  The opinion addressed the legal standard for confirming or vacating an appraisal award pursuant to CPLR § 7601, as well as a party’s right to present evidence to an appraiser over the objection of a counterparty.

On May 20, 2020, Justice Lawrence Marks, the Chief Administrative Judge of the New York Unified Court System, issued a memorandum announcing that, effective May 25, 2020, “e-filing through the NYSCEF system – including the filing of new non-essential matters – will be restored in those counties of the state that have not yet met the benchmarks required to participate in the Governor’s regional reopening plan.”  Those counties include the five counties that comprise New York City, as well as Nassau, Suffolk, Dutchess, Orange, Putnam, Rockland, Sullivan, Ulster, and Westchester.