Forum Selection Clauses: Commercial Division Issues Reminder That Choice of Venue Must Be Designated with Specificity
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.
Does an assignment by a co-songwriter of that co-songwriter’s rights in exchange for a performance and use royalty entitle the co-songwriter to a share of the sale proceeds when the rights are later sold by the other co-songwriter to a third party? No, according to Justice Barry Ostrager’s recent decision in Levy v. Zimmerman. In his decision, Justice Ostrager dismissed a suit filed by the estate of songwriter Jacques Levy in the New York County Commercial Division seeking a share of the more than $300 million in proceeds from the sale by Bob Dylan of his song catalog to Universal Music Group. In dismissing the case, Justice Ostrager ruled that a 1975 contract unambiguously limited Levy’s rights to a 35% royalty on the performance and use of the ten songs he co-wrote with Dylan in the early 1970s.
Commercial Division Decision Suggests Insurers May Struggle to Enforce Anti-Assignment Clauses in Prior-Incurred Loss Cases
In Certain Underwriters at Lloyd’s v. AT&T Corp., 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.
Commercial Division Grants Order for Prejudgment Attachment Where Defendants’ Post-Litigation Transfer of Assets Could Frustrate a Future Judgment
In In re Renren, Inc. Derivative Litigation, Justice Andrew Borrok of the New York County Commercial Division granted Plaintiffs’ order to show cause for prejudgment attachment against certain assets of defendants Oak Pacific Investment (“OPI”), Renren SF Holdings Inc. (“Renren SF”), and Renren Lianhe Holdings (“Renren Lianhe”) (collectively, “Defendants”). The opinion addresses whether allegations of defendants’ improper sale of assets for less than fair market value to frustrate a future judgment warrant a preliminary injunction or prejudgment attachment pursuant to CPLR § 6201.
Recently, in F.W. Sims, Inc. v. Simonelli, Index No. 022942/2014, Doc. No. 412 (Sup. Ct., Suffolk Cnty., May 7, 2021), the Commercial Division Court denied a motion to dismiss on statute of limitation as well as full faith and credit grounds. This decision provides a good refresher on common limitations period issues that arise in commercial cases and is also an example of the impact, or lack thereof, of a settlement in a related matter.
Litigants arguing that their adversary should be judicially estopped from pursing a particular position in litigation face a relatively high burden to invoke the doctrine successfully. Two recent decisions from Justice Borrok help illustrate the specific circumstances under which courts are most likely to estop a litigation pursuant to this doctrine.
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.
Does the COVID-19 Pandemic and Subsequent Emergency Actions by the Governor Make a Commercial Lease Voidable?
In the wake of the COVID-19 pandemic (“COVID”), a common question that arises is whether commercial leases are enforceable when COVID and subsequent governmental responses frustrate the purpose of the lease or render its performance impossible. There is not a one-size-fits-all answer, as the answer will turn on the underlying facts, but the lack of a contractual force majeure provision in the lease will not bar the use of common law defenses. This is evidenced in a recent Bronx County Commercial Division decision by Justice Eddie J. McShan in 1877 Webster Ave. Inc. v. Tremont Ctr., LLC.
Commercial Division Clarifies Application of “Sufficiently Close Relationship” Requirement for Pleading Unjust Enrichment Claims
Unjust enrichment offers an avenue for recovery in situations where no actual agreement exists between parties to a dispute. But this theory of quasi-contract does not apply to just any type of commercial arrangement.
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.
On December 4, 2020, the Administrative Board of the Courts sought public comment on the Commercial Division Advisory Council’s (“CDAC”) proposed amendment to Commercial Division Rule 3(a), 22 NYCRR § 202.70(g). The current language of Rule 3 permits the court to direct, or for counsel to seek, the appointment of an uncompensated mediator for the purpose of mediating a resolution of all or some issues presented in the litigation The CDAC’s Rule 3(a) proposal would “permit the use of neutral evaluation as an [alternative dispute resolution (“ADR”)] mechanism and to allow for the inclusion of neutral evaluators in rosters of court-approved neutrals.” Currently, under Part 146 of the Rules of the Chief Administrative Judge, “neutral evaluation” is “a confidential, non-binding process in which a neutral third party (the neutral evaluator) with expertise in the subject matter relating to the dispute provides an assessment of likely court outcomes of a case or an issue in an effort to help parties reach a settlement.” The Chief Administrative Judge’s rules already set forth the training prerequisites to become a neutral evaluator.
First Department Clarifies Circumstances Under Which Acknowledgment of a Debt Will Toll Limitations Period for Action to Recover on a Promissory Note
In Hawk Mountain LLC v. RAM Capital Group LLC, the First Department held that, under New York General Obligations Law (“G.O.L.”) § 17-101, an acknowledgment of a debt tolled the limitations period for an action to recover a debt owed on a promissory note, even though the acknowledgment did not specifically mention the note at issue or the precise amount due on the note. This decision clarifies that “there is no requirement that an acknowledgement of a debt pursuant to [G.O.L.] § 17–101 leave no room for doubt as to the nature and quantum of the debt to be acknowledged.”
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. The opinion sheds light on the interpretation of conditions precedent in a contract, particularly when they deal with the consistency of relevant financial information.
Commercial Division Holds Corporate Directors May Be Individually Liable When Informally Dissolved Company Forgoes Notice to Creditors
In Morse v. LoveLive TV US, Inc., a recent decision by Justice Robert R. Reed of the New York County Commercial Division, the Court denied a defendant’s motion to dismiss, holding that where it is impossible or futile to obtain a judgment against a defunct corporation that has defaulted on debts by “informal dissolution,” creditors can maintain an action directly against the directors of that company.
Commercial Division Dismisses Commercial Tenant’s Complaint Seeking to Rescind or Terminate Lease and Avoid Rent Obligations
Recently, in Valentino U.S.A., Inc. v. 693 Fifth Owner LLC, Justice Andrew Borrok of the New York County Commercial Division dismissed a complaint brought by Valentino U.S.A., Inc. (“Valentino” or “Tenant”), which sought to rescind or terminate the commercial lease for its Manhattan luxury fashion store and to avoid its rent obligation.
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.”
Hon. Margaret Anne Pui Yee Chan and Hon. Melissa A. Crane have been assigned to the Commercial Division of Supreme Court, New York County.
Judge Chan’s assignment to the Commercial Division follows an eight-year stint as an Acting Supreme Court Justice in the Civil Term for New York County, beginning in 2013. Prior to her designation to the Supreme Court, Judge Chan had served as a Civil Court Judge in New York County, where she began her judicial career in 2007.
Stay Up to Date on Recent Changes to New York’s Commercial Division Rules – CLE Held on Division Rules Changes and Application of Commercial Rules to Other Court Parts
A CLE was recently presented by the Columbian Lawyers Association of the First Department on February 3, 2021 to offer guidance on the latest rule changes affecting the New York State Courts and the Commercial Division in particular. At that program, Commercial Division Blog editor Stephen P. Younger of Patterson Belknap, along with Rosanne E. Felicello, Michael James Maloney, and Kristie Blase of Felicello Law P.C., gave guidance to judges and litigators who focus on commercial disputes, as well as many who practice in other court parts.
Commercial Division Finds Movie Theater Not Entitled to Business Interruption Coverage for COVID-19 Closures
Last summer, we wrote about two principles of New York law that could provide a path to insurance coverage for businesses hit hard by the economic losses resulting from Governor Cuomo’s COVID-19-related shutdown orders. Although we noted that businesses seeking such coverage would likely face an uphill battle, we proposed that recovery under certain business interruption policies might be available in New York because: 1) an insurable loss of use occurred even without physical damage to the covered property; and/or 2) the policy’s “civil authority” clause extended to closures resulting from Governor Cuomo’s orders.
Second Department Limits Plaintiff to Appraisal Remedy Under New York LLC Law After a Freeze-out Merger
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.
Administrative Order 270/2020—which adopts certain Commercial Division Rules into the Uniform Civil Rules for the Supreme Court in New York—went into effect on February 1, 2021. In signing this order, Chief Judge Marks described the Commercial Division as “an efficient, sophisticated, up-to-date court, dealing with challenging commercial cases” that “has had as its primary goal the cost-effective, predictable and fair adjudication of complex commercial cases[.]” Further, he acknowledged the Commercial Division’s role in dealing with the “unique problems of commercial practice,” and praised its “function as an incubator, becoming a recognized leader in court system innovation, and demonstrating an unparalleled creativity and flexibility in development of rules and practices[.]”
Good news for lawyers preparing for trial in New York’s Commercial Division—you can finally delete that old copy of WordPerfect. An upcoming amendment to the rule governing pre-trial memoranda, exhibits, and requests to charge makes a few changes that trial-ready attorneys should note.
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.
First Department Issues First Ruling Dismissing Securities Act Claims Following the U.S. Supreme Court’s Cyan Decision
As New York commercial practitioners will recall, the U.S. Supreme Court in Cyan, Inc. v. Beaver Cty. Emps. Ret. Fund held that state and federal courts have concurrent jurisdiction over class actions alleging violations of only the Securities Act of 1933 (the “1933 Act”) and, further, that defendants in such suits filed in state court cannot remove those actions to federal court to avoid state-court jurisdiction. Not surprisingly, this development has led to an increase in the filing of securities claims in state courts.
Commercial Division Holds Personal Jurisdiction Is Not Proper Where Defendant’s Only Contact with New York Was Performance of Some Contracted Services at Plaintiff’s Request
In Black Diamond Aviation Group LLC v. Spirit Avionics, Ltd., the Commercial Division held that it would be inappropriate for a New York court to exercise personal jurisdiction over an aircraft maintenance and refurbishing company that had no presence or ties to New York other than turning over an aircraft to be serviced to the care of a New York airport at the plaintiff’s request.
Court of Appeals Holds Bankruptcy Law Does Not Preempt Lender’s Tortious Interference Claims Against Third-Party Non-Debtors
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."
Recently, Justice Andrew Borrok of the Commercial Division denied a summary judgment motion in a dispute involving what is colloquially referred to as a “shotgun” or a “buy-sell” clause in agreements governing joint ventures and partnerships. See Seokoh, Inc. v. Lard-PT, LLC, Index No. 650983/2020, 69 Misc. 3d 1207(A) (Sup. Ct., NY Cty. Oct. 20, 2020).
Commercial Division Confirms Arbitration Award Entered Against Party Who Objected to the Jurisdiction of the Arbitrators but Failed to Seek a Stay of the Arbitration
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.
Judge Leslie Stein and Judge Eugene Fahey were confirmed together and will retire together. The two judges have been part of a group of judges who have cast the deciding votes in many of the Court’s cases.
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.”
On Monday, Chief Judge Janet DiFiore issued a statement on the latest developments affecting jury trials in New York City.
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 Monday, just days after Justice Peter Sherwood and Justice Marcy Friedman announced their upcoming retirements from the bench, the Chief Administrative Judge announced the news that Justice Robert Reed—currently a New York Supreme Court Justice—will start receiving Commercial Division cases in the next few weeks.
In Lazar v. Attena LLC, Justice Andrea Masley of the New York County Commercial Division granted Arik Mor and Uriel Zichron’s (together, “Respondents”) motion to dismiss a petition to dissolve three limited liability companies, Attena LLC, Hemera LLC, and Nessa LLC (collectively, the “LLCs”). The Court’s opinion addressed whether the LLCs should be dissolved on the ground that they were no longer functioning in accordance with their stated purpose, which was defined broadly to include “any lawful business purpose.”
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.
Rule 6 Amendment Increases the Font Size of Footnotes and Requires Hyperlinking to the NYSECF Docket
On September 29, 2020, Chief Administrative Judge Marks amended Commercial Division Rule 6 to increase the font size of footnotes in briefs and affidavits from 10-point to 12-point. Additionally, it requires the use of a proportionally spaced serif typeface (e.g., Times New Roman, Baskerville, New Century Schoolbook) in all papers filed with the Court. With Commercial Division Rule 17 establishing a word limit rather than a page limit, increasing the font size of footnotes will have no impact on the length of briefs. Instead, a larger font size coupled with a proportionally spaced serif typeface will enhance readability and improve comprehension of long passages of text.
Commercial Division Considers Effects of COVID Executive Orders on Use and Occupancy Payments for Real Estate
A recent ruling by the Kings County Commercial Division offers a glimpse into how courts in New York may resolve COVID-19-related disputes regarding leases and real property, as well as how courts may handle situations in which the Governor’s executive orders, intended to stem the spread of COVID-19, have affected the abilities of parties to follow court orders issued prior to the pandemic.
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.
As the country entered into an extended period of lockdowns this spring, there was widespread concern that the anticipated severe economic impact of the pandemic would lead to a wave of defaults and foreclosures in the commercial real estate market.
Commercial Division Declines to Dismiss Claim Seeking to Invalidate Delaware LLC Member’s Exercise of a Put Option Amidst Allegations of Anticipated Insolvency
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.
Recently, the Commercial Division rendered a split decision on a petition to stay an arbitration in Gol v. TNJ Holdings, Inc., Index No. 652304/2020, Doc. No. 75 (Sup. Ct., NY Cnty. Aug. 13, 2020). Based on an analysis of the relevant shareholder agreements and the positions taken by the parties in another litigation, Justice Joel M. Cohen denied the petition to stay arbitration as to the claims brought by the TNJ respondents, but granted the petition to stay arbitration as to the claims brought by the Kahlon respondents—the owners of TNJ.
Commercial Division Rules that Personal Jurisdiction Over Defendant Is Relevant to Determining Whether to Grant Preliminary Injunction
Recently, in Setter Capital, Inc. v. Chateauvert. Justice Andrea Masley of the Commercial Division ruled that the issue of whether a court has personal jurisdiction over a defendant is relevant to determining whether to grant a motion for a preliminary injunction.
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).
On August 17, 2020, the Appellate Division, First Department announced that starting in the September term, and continuing until further notice, it will hold oral arguments both in-person at the courthouse and remotely via Microsoft Teams. In-person oral arguments will be held on Wednesdays and remote oral arguments will be held on Tuesdays, Thursdays, and Fridays.
The Commission to Reimagine the Future of New York’s Courts Releases Goals for Restarting in-Person Juries
In mid-June, Chief Judge Janet DiFiore appointed the Commission to Reimagine the Future of New York’s Courts, and charged it with examining technological, regulatory, and other long-term innovations for New York Courts. Additionally, in the short-term, it was to provide recommendations for resuming in-person court operations amid the COVID-19 pandemic.
Starting on September 8, 2020 and continuing indefinitely, litigants eligible for oral argument in the Second Department will be given the option of arguing in person, via Microsoft Teams, or submitting. Notice must be sent to the court and other litigants no later than three days prior to the date on which the matter is calendared. If there is a divergence of opinion among litigants, the court will determine how oral argument will be heard or whether the matter will be marked submitted. Members of the public are still not permitted to attend oral argument at the courthouse.
Commercial Division Holds that Reliance and Inducement are Not Required Elements of Unjust Enrichment
When the funds invested by one victim of a Ponzi scheme are used to pay the scheme’s debts to an earlier investor, can the later investor recover those funds from the earlier investor through an unjust enrichment claim? Yes, if there is a sufficient connection between the parties, according to Commercial Division Justice Andrea Masley’s recent decision in JHAC LLC v. Advance Entertainment LLC. In JHAC, Justice Masley allowed unjust enrichment claims by one Ponzi scheme victim against other victims to proceed by holding that reliance and inducement are not elements of unjust enrichment in New York. All that is required to sustain the claim is a “connection” between the victims, and Justice Masley held that JHAC adequately pled such a connection.
In a New York Debtor and Creditor Law Dispute, Commercial Division Clarifies Allegations Required to Pierce Corporate Veil
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 Appellate Division, First Department has expanded the categories of appeals subject to e-filing through the New York State Court Electronic Filing System (NYSCEF). Effective July 27, 2020, e-filing is now mandatory for all matters originating in Supreme Court, Criminal Term; Family Court; Surrogate’s Court; and Court of Claims in Bronx and New York Counties. With this expansion, e-filing is now mandatory for all matters before the First Department, except Original Special Proceedings and Attorney Matters.
The expansion applies to appeals that have already been perfected, and is required regardless of whether the matters were e-filed at trial level. Attorneys in matters where notices of appeal have been filed are encouraged to immediately enter the initial information required for e-filing under 22 NYCRR § 1245.3. There are separate 22 NYCRR § 1245.3. considerations for criminal and family matters with assigned counsel, and such practitioners should consult the notice to the bar.
On July 22, 2020, the New York Court of Appeals announced that the Court of Appeals Hall in Albany is now open for in-person filings. The Court will continue to accept mailed and electronic submissions as permitted by its rules. Those seeking to file papers in person will be screened at the Court’s Eagle Street entrance before entering in accordance with New York’s COVID screening protocol.
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