In times of crisis, unscrupulous people often disseminate false information to the public in the hope of securing a personal benefit from the fear and concern surrounding the event. Such is the case with the COVID-19 pandemic. Since February of this year, the Securities and Exchange Commission (“SEC” or “Commission”) has released several warnings to investors to beware of fraud, illicit schemes and other misconduct during the coronavirus health emergency (here). In fact, th

On April 24, 2020, this BLOG detailed the substance of Chief Judge DiFiore’s April 20, 2020 weekly on-line video message in which the Chief Judge stressed the strong desire that the New York Court System move to more “normal” operations. Consistent with the Chief Justice’s goals, Chief Administrative Judge Marks issued a memorandum yesterday further outlining the Court System’s plans to move cases along. In the memorandum, Chief Judge Marks recounted how “the Unified Court

On October 30, 2019, we posted an article, titled “How Short Is Too Short?” ( here ). The article examined the enforceability of a contractual provision that shortened the statute of limitations in a non-payment litigation. In today’s article, we revisit the issue with our examination of Murphy v. Williams , 2020 N.Y. Slip Op. 31009(U) (Sup. Ct., N.Y. County April. 23, 2020) ( here ), a case involving a breach of contract claim. The Law It is well settled that parties are fr

In past articles, this Blog has written about qui tam actions under the federal False Claims Act (“FCA”). Typically, the whistleblower (known as the “relator”) adds a claim under the state analogue to the FCA. In today’s article, this Blog examines a claim under New York’s qui tam statute. State of N.Y. ex rel. Edelweiss Fund, LLC v. JPMorgan Chase & Co. , 2020 N.Y. Slip Op. 50380(U) (Sup. Ct., N.Y. County (Mar. 27, 2020) ( here ). Background Edelweiss involved a claim und

In an April 20, 2020 on-line video message appearing on the New York Court System website ( https://www.nycourts.gov/ ), Chief Judge DiFiore explained the court system’s efforts to “not only to keep our courts up and running but to gradually and safely expand access to justice for litigants and lawyers across the state.” Judge Fiore reported that as of Monday April 13, 2020, the scope of temporary virtual courts was expanded beyond “essential” and “emergency” matters to enabl

It is well settled, and understood, that “the business and affairs of every corporation are managed by a board of directors.” Stone ex. re. AmSouth Bancorp. v. Ritter , 911 A2d 362 (Del. 2006). By its very nature a derivative litigation “impinges on the managerial freedom” of the corporation’s directors. Id. “Therefore, the right of a stockholder to prosecute a derivative suit is limited to situations where either the stockholder has demanded the directors pursue a corporate

It has been some time since this Blog examined claims for indemnification and contribution ( See , e.g. , here and here ). In today’s post, we get the opportunity to examine these principles once more through our examination of Allergan Fin., LLC v. Pfizer Inc. , 2020 N.Y. Slip Op. 50422(U) (Sup. Ct. Apr. 13, 2020) ( here ). Allergan involved a claim for indemnification and other related claims arising out of an Asset Purchase Agreement (the “APA”), dated December 17, 2008,

As baseball fans know, Major League Baseball (“MLB”) was rocked by the sign-stealing scandal involving the Houston Astros and, to a somewhat lesser extent, the Boston Red Sox. Not only did opposing players feel cheated by the Astros’ conduct – just ask any player on the Yankees how he feels about losing to the Astros in the playoffs, but so did the fans. Indeed, during spring training (before the league shutdown because of the COVID-19 pandemic), fans could be heard booing an

Regulators and enforcement authorities have often expressed concerns about the revenue recognition practices of corporate entities and those who implement them. Indeed, improper revenue recognition is one of the most common accounting errors pursued by the Securities and Exchange Commission (“SEC” or “Commission”). To properly recognize revenue, the revenue must be realized and earned. Under generally accepted accounting principles, revenue may be recognized when all the fol

Too often, a plaintiff claiming breach of contract fails to identify the provision(s) of the contract alleged to have been breached, let alone that the fact that a contract was formed in the first place. While this seems elementary, the law reporters are brimming with cases where the plaintiff failed to do the foregoing. Indeed, this Blog recently wrote about case in which the plaintiff failed to identify the provision of the contract alleged to have been breached. ( Here .)

In today’s Fraud Notes, we examine two cases decided by the Appellate Division, First Department: Knox, LLC v. Lakian , 2020 N.Y. Slip Op. 02255 (1st Dept. Apr. 9, 2020) ( here ), and WCapital Invs. LLC v CWCapital Cobalt VR Ltd. , 2020 N.Y. Slip Op. 02240 (1st Dept. Apr. 9, 2020) ( here ). Knox concerned the justifiable reliance element of a fraud claim and WCapital Invs. concerned the damages element of a fraud claim. Hints of Falsity New York law imposes an affirmative

The New York State Court System On April 7, 2020, Chief Administrative Judge Lawrence K. Marks issued a memorandum to all trial court justices and judges advising them that, starting on Monday, April 13, 2020, the courts will begin to open their doors, albeit remotely, “for non-essential pending cases” – i.e. , “tort (including medical practice and asbestos), commercial, matrimonial, trusts and estates, and other categories of cases.” ( Here .) To this end, judges are being a

It is not often that the Court of Appeals issues an opinion about the same statute within a short period of time. But, in the span of nine days, the Court issued two opinions addressing General Business Law § 349. On March 24, 2020, the Court of Appeals decided Plavin v. Group Health Inc. , 2020 N.Y. Slip Op. 02025 (Mar. 24, 2020) ( here ), a case in which the Court was asked to decide whether an insurance company’s alleged misstatements and omissions about its insurance pla

Once an action is commenced, litigants have numerous discovery devices at their fingertips to help flesh-out facts to prove, or defend against, asserted claims. Sometimes, however, a potential litigant believes that a viable claim exists but, for one or more reasons, has insufficient information to bring a claim. The answer is provided by CPLR 3102 (c) , which permits disclosure “before an action is commenced, … to aid in bringing an action, to preserve information or to ai

The coronavirus (“COVID-19”) has impacted the public and private sectors in so many ways – many of which are unprecedented and beyond the scope of this article. The Securities Exchange Commission (“SEC” or the “Commission”), the Financial Industry Regulatory Authority, Inc. (“FINRA”), other governmental authorities have worked to ensure that the markets have functioned and will function in an open, orderly and transparent fashion. In today’s article, we consider some of these

It is said that justice never sleeps. This is true, even as we adjust to life during the coronavirus pandemic. Although state and federal courts around the country have limited the business they handle, they nonetheless remain open. But what does this mean? The Lower Courts The State of New York has answered this question through several recent court orders. These orders make clear that the courts are, as Chief Judge Janet DiFiore stated in a recent online message, “up and r

Historically, an individual was required to appear, in person, before the notary public acknowledging his/her signature. See In re Napolis , 169 A.D. 469, 471 (1 st Dep’t 1915) (“The court again wishes to express its condemnation of the acts of notaries taking acknowledgments or affidavits without the presence of the party whose acknowledgment is taken or the affiant, and that it will treat as serious professional misconduct the act of any notary thus violating his official

On March 24, 2020, the New York Court of Appeals decided Plavin v. Group Health Inc. , 2020 N.Y. Slip Op. 02025 (Mar. 24, 2020) ( here ), a case in which the Court was asked by the United States Court of Appeals for the Third Circuit to decide whether an insurance company’s alleged misstatements and omissions about its insurance plan, made to over 600,000 current and former New York City employees and retirees, sufficed to satisfy the consumer-oriented element of a claim unde