A shareholder’s derivative action is a lawsuit “brought in the right of a … corporation to procure a judgment in its favor, by a holder of shares or of voting trust certificates of the corporation or of a beneficial interest in such shares or certificates.” Marx v. Akers , 88 N.Y.2d 189, 193 (1996) (quoting Business Corporation Law § 626 (a)). Derivative claims against corporate officers and directors belong to the corporation itself. Auerbach v. Bennett , 47 N.Y.2d 619, 631

The Securities and Exchange Commission (“SEC” or “Commission”) ended the Government’s fiscal year with a flurry of proceedings and settled actions. In addition to the settled actions against Tesla Inc. and Elon Musk, the SEC filed or settled matters against retail brokers and investment advisors for violations of the securities laws and the rules promulgated thereunder. In today’s post, this Blog looks at some of these actions. Disclosure violations : On September 29, 2018

Typically, a mortgage on real property is delivered to stand as security for the repayment of an obligation evidenced by a promissory note. A mortgage is an encumbrance on real property. If there is an opportunity to remove such an encumbrance, it makes sense to do so.

The date on which parties to a real estate contract must close is frequently subject to litigation. Sometimes real estate contracts provide for a closing date that is “time of the essence” and, in such cases, the parties must close on that date or risk default. In the event that a buyer fails to close on a “time of the essence” closing date, he risks being declared in default by the seller and losing his down payment (and being a party to any related litigation that may res

Goldman Sachs Group, Inc. (“Goldman Sachs” or the “Company”) is requesting that wrongful termination claims brought by a former executive alleging whistleblower retaliation by the Company should be heard in arbitration or dismissed all together. In early August, former Goldman Sachs executive, Chris Rollins (“Rollins”), brought suit against the Company, asserting that its leaders wrongfully blamed him for failures with the Company’s anti-money laundering procedures, ruined h

This Blog has addressed numerous issues relating to mortgage foreclosure actions. < HERE =">HERE</a>"> < HERE =">HERE</a>"> < HERE =">HERE</a>"> < HERE =">HERE</a>"> < HERE =">HERE</a>"> < HERE =">HERE</a>"> . “ The Second Department Denies Summary Judgment To Another Foreclosing Mortgagee Due To The Insufficiency Of Evidence Presented On The Motion ” addressed the sufficiency of evidence necessary for a lender to demonstrate that it is the holder of the underlying note and

Last month, this Blog examined the common interest exception to the attorney-client privilege. ( Here .) As discussed in that post, the presence of a third party will not destroy a claim of privilege where two or more clients separately retain counsel to advise them on matters of common legal interest. In New York, the “common interest” exception will apply to such communications when they are shared in connection with “pending or anticipated litigation.” Ambac Assur. Corp.

As a general matter, business entities ( e.g. , for-profit and not-for-profit corporations, limited liability companies, and limited partnerships) formed outside the State of New York (whether in another state or a foreign country) may not do business within the state unless they receive authority to do so. See generally , Business Corporation Law (“BCL”) §§ 1301-1320 (corporations), Limited Liability Company Law (“LLCL”) §§ 801-809 (limited liability companies), Not-for-Prof

If a domestic or authorized foreign corporation is named as a defendant in a lawsuit pending in New York, section 306 of New York’s Business Corporation Law permits service of process on that corporation through the New York secretary of state. Pursuant to BCL § 306, “ ervice of process on search corporation shall be complete when the secretary of state is so served.” ( See BCL § 306.) Once served, the “secretary of state shall promptly send one of such copies by certifie

The History of Common Law Dissolution Judicial dissolution of a corporation at the request of a minority shareholder “is a remedy of relatively recent vintage in New York.” Matter of Kemp & Beatley (Gardstein) , 64 N.Y.2d 63, 69 (1984). Historically, New York courts were prevented from exercising their equity powers to order dissolution, as statutory prescriptions were deemed exclusive. Id . (citation omitted). Statutory dissolution was either limited by the types of corpora

This Blog has written about judicial dissolution under Limited Liability Company Law (“LLCL”) § 702 many times over the past year or so. ( E.g. , here , here and here .) A common theme that runs through these posts (and the cases on which they are based) is the difficulties litigants encounter when seeking judicial dissolution. Yu v. Guard Hill Estates, LLC , 2018 N.Y. Slip Op. 32008(U) (Sup. Ct., N.Y. County Aug. 15, 2018) ( here ), a recent decision issued by Justice S

Melville, NY ( Law Firm Newswire ) September 5, 2018 - Freiberger Haber LLP is pleased to announce that Jonathan H. Freiberger, one of the firm’s founding partners, has co-authored an article with Ms. Leora Halpern Lanz, principle of LHL Communications, a hospitality focused marketing communications advisory and full-time faculty of Boston University's School of Hospitality Administration, and Ms. Elise Borkan, Learning Assistant in the digital marketing class at Boston Univ

During the last week in August, the Securities and Exchange Commission (“SEC” or “Commission”) filed a number of actions and administrative proceedings involving, among other things, insider trading and the use of financial models and controls. Today’s installment of SEC Enforcement News looks at two of the actions/proceedings filed by the Commission: one involving insider trading allegations against former Cleveland Browns linebacker, Mychal Kendricks (“Kendricks”), and the

It’s official. New York City has passed a law, 45-0 in a city council vote, which is designed to help enforce existing rules that ban short-term rentals. The new law will require that Airbnb share the names and addresses of hosts in New York City. here.=">here.</a>"> Not Everyone Agrees The law has been met with mixed feelings. While people such as Mayor Bill de Blasio support the bill, others like Chris Lehane, head of global policy at Airbnb, find the new policy to be unnec

Jonathan H. Freiberger recently co-authored an article appearing in the August 26, 2018 edition of Hotel Executive Magazine. The article addresses new areas of Americans with Disabilities Act (“ADA”) compliance. Traditionally, discussions about ADA compliance have focused on physical barriers to, or within, brick-and-mortar locations. Developing areas of the law, and advances in technology, have resulted in some changes in the way barriers to access are analyzed. While th

This Blog has previously written about the enforceability of informal agreements. ( Here , here , here , and here .) In that regard, we have noted that an exchange of term sheets, memoranda of understanding, emails or correspondence may constitute an enforceable agreement if the writings include all the essential terms of an agreement. Sullivan v. Ruvoldt , 16 Civ. 583, 2017 WL 1157150 at *6 (S.D.N.Y. Mar. 27, 2017). Thus, if the informal writings contain the necessary elemen

This Blog has written about cases involving disputes between members of a limited liability company (“LLC”) in which resolution of the matter would be governed by an operating agreement if one were in place. These cases illustrate the importance of having an operating agreement that addresses the myriad issues an LLC may encounter throughout its existence. Yet, despite the fact that the New York Limited Liability Company Law (“LLCL”) requires members of an LLC to “adopt a wri

In order to obtain personal jurisdiction over an individual defendant (a natural person) in a lawsuit, the plaintiff must serve the defendant with a copy of the summons. CPLR 308 provides several different methods for service and many, but not all, methods are discussed below. One method is personal delivery to the defendant. (CPLR 308 (1).) When such “in hand” service is made, the defendant has twenty days to appear in the action (unless the time is extended). ( CPLR 32