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

Under Section 702 of New York’s Limited Liability Company Law (“LLCL”), a court may dissolve a company “whenever it is not reasonably practicable to carry on the business in conformity with the articles of organization or operating agreement.” LLCL § 702. (This Blog addressed Section 702 here , here and here .) To successfully petition for the dissolution of a limited liability company (“LLC”) under LLCL § 702, the petitioning member must demonstrate the following: 1) the m

Earlier this month, a new report by the federal government’s auditing division raised concerns regarding how the Department of Veteran Affairs handles employees and managers found to be involved in apparent acts of retaliation. Alarming Findings The report shares some very serious findings. According to the U.S. Government Accountability Office’s (GAO) report, VA whistleblowers are much more likely to face discipline or removal after reporting misconduct than are their colle

The simplest misstep has the potential to derail years of litigation and result in a massive financial sanction, as happened here. It is in everyone’s best interest, both the litigants’ and the courts’, to verify that diversity jurisdiction exists before proceeding with the case. Everyone involved in this case trusted that diversity jurisdiction existed, but no one verified it. Purchasing Power v. Bluestem Brands , 851 F.3d 1218, 1220 (11th Cir. 2017). Recently, the foregoin

Restrictive covenants are frequently found in employment contracts. Typically, such covenants, among other things, are used to prevent employees (the “Employee”), after the termination of the employment relationship, from: competing with the former employer; soliciting the former employer’s customers; soliciting the former employer’s other employees; and, taking or using the former employer’s confidential business information. Generally, restrictive covenants contain tempora

Recently, the First Department issued a terse decision in which it reversed a lower court ruling requiring the production of documents claimed to be protected by the attorney-client privilege under a common interest agreement. In 21st Century Diamond, LLC v. Allfield Trading, LLC , 2018 N.Y. Slip Op. 05732 ( here ), the Court made clear that “the common interest doctrine applies to protect otherwise privileged communications between these parties from disclosure.” Given the

There are times when a party to a contract wants to be excused from the obligations set forth in their agreement. Under New York, the circumstances under which a court will excuse a party from performance are limited, namely, where there is an intervening event that was both unforeseeable and destroyed either the subject matter of the contract or the means by which the parties could perform thereunder. Since the circumstances in which a contract will be deemed impossible to p

Prosecuting a mortgage foreclosure action in New York can be an arduous and time-consuming process. This is particularly so for residential mortgage foreclosures since the promulgation of a host of rules by the New York State Legislature stemming from the mortgage crisis of the late 2000s. Some of the new rules have been addressed previously in this Blog (“ Appellate Division, Second Department Tells Foreclosing Residential Lender to ‘SHOW ME THE EVIDENCE,’” “ The Second D

Last month, the Commodity Futures Trading Commission (“CFTC” or the “Commission”) announced that it had paid whistleblowers more than $45 million in awards. In one case, the CFTC awarded approximately $30 million to a whistleblower ( here ), the largest amount ever awarded by the CFTC, and in the other, the CFTC awarded more than $70,000 to a whistleblower living in a foreign country, the first of its kind under the CFTC Whistleblower Program ( here ). The awards reflect th

Fraud Claim Dismissed on Statute of Limitations Grounds: Plaintiff Unable to Use The Discovery Rule to Save His Claims Under New York law, an action based upon fraud must be commenced within six years of the date the cause of action accrued, or within two years of the time the plaintiff discovered or could have discovered the fraud with reasonable diligence, whichever is greater. C.P.L.R. § 213(8). See also Sargiss v. Magarelli , 12 N.Y.3d 527, 532 (2009); Carbon Capital Mgm