Sometimes in litigation, the facts get in the way of the desired results. Such was the case for the defendant in Age Group, Ltd. v. Martha Stewart Living Omnimedia, Inc. (April 12, 2018), in which the First Department affirmed Supreme Court’s denial of defendant’s motion for summary judgment seeking to dismiss plaintiff’s causes of action sounding in breach of contract and breach of the implied covenant of good faith and fair dealing. The facts are set forth in Supreme Cou

The Securities and Exchange Commission (“SEC”) has been busy so far this spring. In the latest roundup, this Blog looks at enforcement actions taken by the SEC against investment advisors, a medical device company and a purported cryptocurrency company. SEC Charges Medical Device Company and Founder with Fraud for Failing to Make Disclosures and Misappropriating Investor Funds On April 5, 2018, the SEC announced (here) that it had charged convicted felon and former NHL team

Commercial litigation involving mortgage-backed securities (MBS) cases can be complex and labor-intensive. Attorneys handling MBS cases often must follow intricate and multiple transactions involving many players, including securities issuers, securities underwriters, loan originators, credit-rating agencies, due-diligence service providers, and insurers. Litigators must review the numerous factors and issues in each of the MBS disputes to determine liability and damages. Be

On March 29, 2018, the New York Court of Appeals decided Kolchins v. Evolution Markets, Inc. , a case that addresses several important practice issues. Plaintiff in Kolchins was a commodity trader who, in 2005, joined defendant as a commodity broker. In 2006, and again in 2009, the parties entered into three-year employment agreements. The 2009 agreement, which had an end date of August 31, 2012, provided for various forms of compensation including a base salary, a “sign

JEFFREY M. HABER, CO-FOUNDING PARTNER OF FREIBERGER HABER LLP, IS AGAIN RECOGNIZED BY SUPER LAWYERS MAGAZINE New York, NY (Law Firm Newswire) April 5, 2018 – Freiberger Haber LLP is pleased to announce that co-founding partner, Jeffrey M. Haber , has been named by Super Lawyers Magazine® to be among the top lawyers in the New York metropolitan area for the seventh consecutive year. Mr. Haber was recognized for his work in business litigation . As part of his history of profe

What is a Trade Secret? At its core, a trade secret is information of commercial value. It can be anything, such as a formula, strategy, device, process, or recipe. It is not generally known to others and is not readily ascertainable by proper means. Since a trade secret is a thing of commercial value, it gives the owner an advantage over competitors who do not know the secret and cannot use it to compete for business. New York Law vs. The UTSA At the state level, the protec

On March 29, 2018, the Department of Justice (“DOJ”) announced ( here ) that it had reached agreement with Barclays Capital, Inc. and several of its affiliates (together, “Barclays” or the “Bank”) to settle a civil action in which the United States sought civil penalties for alleged conduct related to Barclays’ underwriting and issuance of residential mortgage-backed securities (“RMBS”) between 2005 and 2007. Under the settlement, Barclays will pay the United States two billi

Simply stated, the “Voluntary Payment Doctrine” bars recovery of payments voluntarily made with full knowledge of the facts, and in the absence of fraud or material mistake of fact or law. Dubrow v. Herman & Beinin , 157 A.D.3d 620 (1 st Dep’t 2018) (citation and quotation marks omitted). The Doctrine has been around for quite some time. In 1898, the First Department recognized that “ voluntary payment of money under a claim of right cannot in general be recovered back.

It is well-settled that a plaintiff asserting a derivative claim seeks to recover for injury to the business entity. A plaintiff asserting a direct claim seeks redress for injury to himself/herself individually. Sometimes, the distinction between the two types of actions is not readily apparent. Yudell v. Gilbert , 99 A.D.3d 108, 113 (1st Dept. 2012). In considering whether a claim is direct or derivative, courts look to the nature of the wrong and the person or entity to wh

On March 20, 2018, the United States Supreme Court decided Cyan, Inc. v. Beaver County Employees Retirement Fund , No. 15-1439, in which it unanimously held that the Securities Litigation Uniform Standards Act of 1998 (“SLUSA”) does not strip state courts of subject-matter jurisdiction over class actions involving claims exclusively brought under the Securities Act of 1933 (the “1933 Act”), and does not allow for the removal of those cases to federal court. ( Here .) The Cou

A mechanic’s lien is an encumbrance on the title to the real property. Contractors and subcontractors, among others (collectively, “Contractors”), whose work improves real property, are entitled to place a mechanic’s lien on the real property so improved to secure the payment of the amounts due to them. Oftentimes, mechanic’s liens are problematic for real property owners. For example, the filing of such a lien could be an event of default under a mortgage or a lease. Unde

The Financial Industry Regulatory Authority (“FINRA”) is the largest independent, non-governmental regulator of broker-dealer firms doing business in the United States. See UBS Fin. Servs., Inc. v. W. Va. Univ. Hosps., Inc. , 660 F.3d 643, 648 (2d Cir. 2011). FINRA was formed in 2007, pursuant to Section 15A of the Securities Exchange Act of 1934 (“Exchange Act”), through the merger of the National Association of Securities Dealers (“NASD”) and the New York Stock Exchange Re

Since the summer of 2016, this Blog has written about the Fiduciary Rule (the “Fiduciary Rule” or the “Rule”), which the Department of Labor (“DOL”) promulgated in April 2016. ( See , e.g. , here , here , here , here , here , here , here .) Readers of this Blog know that the implementation of the Rule has not gone smoothly. The Rule has been the subject of congressional and industry attacks and legal challenges. On March 15, 2018, one of the legal challenges succeeded – the C

According to a new report by Cornerstone Research (“Cornerstone”), titled Securities Class Action Settlements—2017 Review and Analysis (the “Report”) ( here ), total settlement dollars from securities class action lawsuits declined “dramatically” in 2017, even as the number of settlements remained relatively steady. Cornerstone’s March 14, 2018 press release about the Report can be found here . In 2017, the total value of court-approved securities class action settlements

“Timing is everything”, it is often said. A fine illustration of this often-uttered phrase can be found in Reverend C.T. Walker Housing Dev. Fund Corp. v. City of New York (E.D.N.Y. March 5, 2018), an appeal from the United States Bankruptcy Court for the Eastern District of New York. The Reverend C.T. Walker Housing Dev. Fund Corp. (“Walker”) owned property on 135 th Street in New York City (the “Property”). The New York City Department of Housing Preservation and Devel

Recently, Credit Suisse (the "Bank"), the multinational financial services holding company based in Switzerland, was hit with two class action lawsuits , one from investors over the Bank's writedown of more than $1 billion and the other from U.S.-based brokers who refused or were unable to move to Wells Fargo & Co. ("Wells Fargo") after their private banking unit was closed in 2015 . Both lawsuits come at a time when the Bank has been in the news for legal challenges and i

Ameriprise Settles with The SEC for Overcharging Retirement Account Customers for Mutual Fund Shares On February 28, 2018, just a few weeks after launching its Share Class Selection Disclosure Initiative (discussed below), the Securities and Exchange Commission (“SEC”) announced (here) that Ameriprise Financial Services Inc. (“Ameriprise”), the Minnesota-based broker-dealer and investment adviser, agreed to settle charges for recommending and selling higher-fee mutual fund sh

On February 23, 2018, the U.S. Supreme Court set oral argument in Lucia v. SEC, 17-130, a case involving the use of administrative law judges (“ALJ”) by the Securities and Exchange Commission (“SEC” or the “Commission”) as hearing officers in administrative proceedings. The issue presented to the Court concerns whether the use of ALJs violates the constitutional limitations of the Appointments Clause on “Officers of the United States” (here). U.S. Const., art. II, § 2, cl. 2