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By: Jeffrey M. Haber In New York, as in other jurisdictions, settlement agreements “are judicially favored, will not lightly be set aside,” and will be enforced “with rigor and without a searching examination into their substance.” 1 A court called upon to enforce a settlement must be satisfied that the agreement is “clear, final and the product of mutual accord.” 2 Thus, an out-of-court agreement settling an action is binding on each party to the agreement only if “it is i

By: Jeffrey M. Haber In prior articles, we have examined the rules governing the bringing of shareholder derivative litigations ( e.g. , here and here ). Among other things, we discussed the rule requiring the plaintiff to be a shareholder of the company at the time of the wrongdoing to have standing to sue. The same principle applies to plaintiffs bringing direct claims against the corporation for wrongs allegedly inflicted on the plaintiff as a shareholder of the company.

By: Jeffrey M. Haber In today’s Fraud Notes, we examine three decisions issued by the Appellate Division, First Department in which themes familiar to readers of this Blog are at issue: pleading fraud with particularity ( e.g. , here and here ), making a material misstatement of present fact ( e.g. , here and here ) duplication of a breach of contract claim ( e.g. , here , here and here ), pleading justifiable reliance ( e.g. , here , here and here ), and no reliance and

By Jonathan H. Freiberger In this Blog’s August 23, 2021, article, entitled “ Second Department Finds Release Binding Despite Plaintiff’s Claim About Not Understanding the English Language ”(the “Prior Article”), we discussed, inter alia , the import of general releases and the difficulty that one may have invalidating same once executed.   One of the leading cases on the law of releases, and as relied upon in the Prior Article, is Centro Emprésarial Cempresa S.A. v. America

By: Jeffrey M. Haber As readers of this Blog know, pleading and proving fraud is not easy. The law reporters (not to mention the pages of this Blog) are bursting with cases in which the courts have dismissed fraud actions due to pleading and proof deficiencies. Moskowitz v. Fischer , 2022 N.Y. Slip Op. 50385(U) (Sup. Ct., Suffolk County May 3, 2022) ( here ), is a recent example of this occurrence. To plead a viable cause of action for fraud, a plaintiff must allege that the

By: Jeffrey M. Haber On May 6, 2022, the Securities and Exchange Commission (“SEC” or the “Commission”) announced ( here ) the filing of fraud charges against MCC International Corp. (“MCC”), which does business as Mining Capital Coin Corp., its founders Luiz Carlos Capuci, Jr. (“Capuci”) and Emerson Souza Pires (“Pires”), and two other entities controlled by Capuci, CPTLCoin Corp. (“CPTLCoin”) and Bitchain Exchanges (“Bitchain”), in connection with the unregistered offerings

By: Jeffrey M. Haber Commercial transactions very often involve parties from different states and/or different countries. One party can be domiciled in New York, for example, while the other can be incorporated or headquartered in Delaware or London. When a dispute arises between such geographically diverse parties, questions concerning the jurisdiction of a court over the parties often get litigated. This was the situation in Kingstown Capital Management L.P. v. CPI Property

By Jonathan H. Freiberger The readers of this Blog know that we frequently discuss numerous aspects of residential mortgage litigation.  S ee, e.g., < here =">here</a>"> and the articles linked therein.  A related subtopic that gets much attention in this Blog is the pre-foreclosure notice requirements of RPAPL 1304 .  See, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =

By: Jeffrey M. Haber As a general matter, a fraud claim is not duplicative of a contract claim where the plaintiff alleges misrepresentations of fact, as opposed to misrepresentations of a future intent to perform. In IS Chrystie Mgt. LLC v. ADP, LLC , 2022 N.Y. Slip Op. 02950 (1st Dept. May 3, 2022) ( here ), this general principle of law was one of the issues before the Court. In particular, the First Department was asked to determine whether post-contractual misrepresentat