By: Jeffrey M. Haber We have often written about the SEC’s whistleblower program and, in particular, the success of the program with respect to detecting and preventing violations of the federal securities laws. The success of the program depends, in large part, on the ability of would-be whistleblowers to have the freedom to report wrongdoing without fear of reprisal. Taking steps to impede a departing employee from sharing information with the SEC impairs this free flow of

By Jonathan H. Freiberger This Blog frequently addresses issues related to mortgage foreclosure actions, generally, and issues of standing, specifically. Much of the background of this article was taken from a prior article: “ Appellate Division, Second Department, Validates Mortgage Foreclosure Defendants’ Cries of ‘Leave me Allonge ’”. As to the issues relating to the standing of a lender to commence a foreclosure action, this Blog has noted that, in general, a foreclosin

By Jeffrey M. Haber Under New York law, a party’s termination of a contract is ineffective when the contract provides for notice and an opportunity to cure, and notice was not provided. 1 As explained by the First Department: Our case law is clear that a party’s termination is ineffective where the relevant contract provides for a notice to cure and notice is not provided …This approach gives effect to the principle that, generally, where contracting parties agree on a term

By: Jeffrey M. Haber Parties to commercial transactions are no doubt familiar with “term sheets”, “letters of intent”, “memoranda of understanding” and “agreements in principle”. As the parties to these documents know, they outline the fundamental terms of the transaction being negotiated. “Term sheets”, “letters of intent”, “memoranda of understanding” and “agreements in principle” may constitute an enforceable agreement if the writing includes all the essential terms of an

By Jonathan H. Freiberger Regular readers of this Blog know that we spend a good deal of time writing about mortgage foreclosure. The anticipated conclusion of a mortgage foreclosure action is a foreclosure sale. The judicial sale is also the hoped-for conclusion of other types of proceedings – such as mechanic’s lien foreclosures and condominium lien foreclosures. Once conducted, there are mechanisms to set aside judicial sales when warranted. “ ven after a judicial sale

By: Jeffrey M. Haber The faithless servant doctrine 1 provides that an employee who is faithless in the performance of their duties ( i.e. , breaches their duty of loyalty to the employer) is not entitled to recover either salary or commission. 2 While the language of the rule may imply a broad application, courts generally apply the rule relatively narrowly. 3 Courts will usually hold an employee liable under the faithless servant doctrine only if the employee has usurped

By: Jeffrey M. Haber Typically, when a plaintiff claims to have been defrauded, he/she typically argues that the defendant made an affirmative misrepresentation of fact. Fraud does not, however, always concern an affirmative statement. Sometimes a person can perpetrate a fraud through the omission of a material fact. Where fraud by omission is claimed, the plaintiff must allege that the defendant had a duty to disclose the omitted fact. A duty to disclose arises when (1) the

By: Jeffrey M. Haber In prior articles we have examined Ponzi Schemes and affinity fraud. E.g. , here . We do so again today. Affinity fraud occurs when the promoter of the fraud preys upon members of an identifiable group, such as a religious or ethnic community, the elderly, or a professional group. The promoter frequently is – or pretends to be – a member or a good friend of the group. The promoter often enlists respected members of the community or religious leaders from

By: Jeffrey M. Haber The statute of frauds provides that “ contract for the . . . the sale, of any real property, or an interest therein, is void unless the contract or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the party to be charged, or by his lawful agent thereunto authorized by writing.” 1 “To satisfy the statue of frauds, a memorandum evidencing a contract and subscribed by the party to be charged must designate the par

By Jonathan H. Freiberger As the Court of Appeals has explained it, “ ummary judgment permits a party to show, by affidavit or other evidence, that there is no material issue of fact to be tried, and that judgment may be directed as a matter of law, thereby avoiding needless litigation cost and delay. Where appropriate, summary judgment is a great benefit both to the parties and to the overburdened New York State trial courts.” Brill v. City of New York , 2 N.Y.3d 648, 651 (

By: Jeffrey M. Haber We start the new year off examining Dragons 516 Ltd. v. Knights Genesis Inv. Ltd. , 2023 N.Y. Slip Op. 50020(U) (Sup. Ct., N.Y. County Jan. 6, 2023) ( here ), a case involving many of the themes we often consider in our discussion of fraud and fraudulent inducement claims. Dragons involved a dispute between a lender and a borrower. Plaintiff, Dragons 516 Limited (“Dragons”), alleged that defendants fraudulently conspired to misrepresent the ownership str

By: Jeffrey M. Haber In promoting a scam, fraud operators expect investors will jump at the opportunity to obtain a life-changing financial reward from their investment, especially if the investment opportunity does not require a large outlay of money. For this reason, many investment frauds involve false promises of extraordinary payouts with minimal risk. Unfortunately, too many investors are lulled into believing these promises and give their hard-earned money to these fra

By: Jeffrey M. Haber Obtaining jurisdiction over a person or corporation that is domiciled outside of the state can be difficult. A plaintiff must plead and prove that the person or entity purposefully used the resources of the state for a court to exercise personal jurisdiction over the defendant. The failure to do so will result in dismissal of the action. Under CPLR § 302(a)(1), a court can exercise specific personal jurisdiction over a non-domiciliary who “transacts any

By: Jeffrey M. Haber “Front-running” involves trading ahead of large, nonpublic orders of market participants to benefit from the market impact of those large orders. Large orders can have an impact on the price of a security when they cause an imbalance in the supply or demand for that security, thereby causing the price of that security to increase or decrease. Front-running was the focus of an enforcement action that the Securities and Exchange Commission (“SEC”) brought

By: Jeffrey M. Haber On December 23, 2022, the Appellate Division, Fourth Department issued two decisions involving New York’s former Debtor and Creditor Law (“DCL”): Inner Harbor Phase I L.P. v. Cor Inner Harbor Co. LLC , 2022 N.Y. Slip Op. 07319 (4th Dept. Dec. 23, 2022) ( here ); and Hospitality Concepts, LLC v. Bernhardt , 2022 N.Y. Slip Op. 07349 (4th Dept. Dec. 23, 2022) ( here ). We examine both decisions below. The former DCL was replaced on April 4, 2020 by the New Y

By Jonathan H. Freiberger As previously addressed in numerous articles on this Blog, the New York State Legislature has responded to the residential mortgage foreclosure crisis by promulgating a series of rules designed to protect homeowners. These rules place additional burdens on foreclosing lenders, and courts throughout New York State have demonstrated little sympathy for noncompliance. For example, we have written frequently about residential mortgage foreclosure pract

By: Jeffrey M. Haber In ABN AMRO Capital USA LLC v. AMERRA Capital Mgt. , LLC, 2022 N.Y. Slip Op. 07178 (1st Dept. Dec. 20, 2022) ( here ), the Appellate Division, First Department considered two defenses that are often advanced to dismiss a claim for fraudulent inducement: the absence of justifiable reliance and duplication with a breach of contract claim. We examine those defenses in today’s article. ABN AMRO involved the extension of $360 million in loans to Transmar Comm

As readers of this Blog know, we have often written about the justifiable reliance element of a fraud claim. Considered by the courts to be nettlesome, justifiable reliance is often the most difficult element for plaintiffs to satisfy.