NY Commercial Litigation Insider

Top News

Defendants' Reliance on Business Judgment Rule Fails

By Ben Bedell |

In allowing a shareholder suit to proceed, a Commercial Division judge has found the "business judgment rule" is inapplicable where a company's directors ignored red flags and rushed into an ill-advised acquisition in order to avoid losing their investments.

Bernie Madoff

Madoff's Dual Role Blocks Bid to Recoup Losses, Panel Says

By Ben Bedell |

The fact that Bernard Madoff orchestrated his Ponzi scheme under two hats—that of "investment advisor" and "securities broker"—means an insurance policy meant to indemnify for losses suffered as a result of an investment advisor's fraud is worthless, an appellate court ruled Thursday.

The Appellate Division, First Department, at 27 Madison Ave.

Arbitrator's Denial of Attorney Fees Upheld

By Ben Bedell |

The First Department last week ruled on five appeals from Manhattan's Commercial Division, upholding three and reversing two.

Panel Vacates Sanctions Over Deleted Emails

By Ben Bedell |

While finding that the deletion of emails in a case was the result of "gross negligence," a unanimous First Department panel found the deleted communications were irrelevant to defenses asserted in the case and vacated sanctions imposed for spoliation of evidence.

Litigator’s Corner

Protecting Consignors' Interests and Rights to Recover Property

By Carren B. Shulman |

Carren B. Shulman of Sheppard, Mullin, Richter & Hampton writes: In this uncertain economy, consignment is realizing a resurgence and may be an effective cost saving measure for vendors/consignees. This article addresses the law on consignment and how consignors protect themselves.

George Bundy Smith and Thomas J. Hall

'At-Issue' Waiver of Attorney-Client Privilege

By George Bundy Smith and Thomas J. Hall |

In their Commercial Division Update, George Bundy Smith and Thomas J. Hall write that a number of recent cases demonstrate that if reliance on privileged materials is needed to prove a claim or defense, the courts usually will find that the privilege has been waived. However, the relevance of privileged materials is not the determining factor in at-issue waivers; rather, the privileged materials must be directly at issue in the case.

Barbara M. Goodstein

Collateral Descriptions and Blanket Liens: Is the Kitchen Sink Enough?

By Barbara M. Goodstein |

In her Secured Transactions column, Barbara M. Goodstein, a partner at Mayer Brown, writes: Two recent bankruptcy court decisions reflect the importance of distinguishing between a blanket lien collateral description in a security agreement and one in a UCC financing statement.

Timothy J. Coleman and Emily B. Holland

Touching and Concerning 'Kiobel': Continuing Implications

By Timothy J. Coleman and Emily B. Holland |

Timothy J. Coleman and Emily B. Holland write: Although it did not bar all extraterritorial claims, the U.S. Supreme Court's decision in 'Kiobel v. Royal Dutch Petroleum' shut the door to most Alien Tort Statute suits brought by foreign plaintiffs against foreign defendants for conduct occurring on foreign soil. But as to how courts should confront claims not involving Kiobel's "foreign-cubed" fact pattern, the legal community continues to debate. Recent rulings offer a fresh opportunity to assess what remains of the ATS and suggest an emerging circuit split.