All Lundin PLLC Blogs

Image of many silhouettes of human heads in profile. Most are in shades of yellow and orange. One, in the centre, is black, and holds a whistle in their mouth.
Whistleblower Write-Up / Whistleblowing

SEC Frowns on Impeding Potential Whistleblowers: $10 Million Fine

Last Friday, the SEC announced that the agency had settled charges against D.E. Shaw & Co. LP, a New-York based investment advisor. Since 2011, and through at least 2019, D.E. Shaw had been in habit of requiring employees to sign agreements prohibiting the disclosure of confidential corporate information to third parties.  These agreements did not have an exception for potential whistleblowers.  The company also required departing employees to sign releases before receiving post-termination payments; those releases required the employees to affirm that they have not filed any complaints with any government agency.  The settlement included a $10 million dollar civil money penalty. Continue reading SEC Frowns on Impeding Potential Whistleblowers: $10 Million Fine

New York County Courthouse (Justices Borrok, Chan, Sohen, Crane, Masley, Ostrager, Reed and Schecter)
Commercial Case Notes / Damages

Questions of Fact Preclude Dismissal of Claim That Liquidated Damages Clause Was an Unenforceable Penalty

On September 22, 2023, Just5ice Crane of the New York County Commercial Division issued a decision in Penn Hotel Jr. LLC v. JCMC W. 34 Mezz II LLC, 2023 NY Slip Op. 33315(U), holding that questions of fact precluded dismissal of a claim that a liquidated damages provision was an unenforceable penalty . . . Continue reading Questions of Fact Preclude Dismissal of Claim That Liquidated Damages Clause Was an Unenforceable Penalty

Appellate Division First Department Courthouse
Commercial Case Notes / Contracts / Setoff/Recoupment

Recoupment Defense Fails for Lack of Contractual Duty to Make Payments to be Recouped

On September 26, 2023, the First Department issued a decision in AOG, LLC v. Kind Operations Inc., 2023 NY Slip Op. 04710, holding that a recoupment defense should have been dismissed for lack of a contractual duty to make the payments to be recouped . . . Continue reading Recoupment Defense Fails for Lack of Contractual Duty to Make Payments to be Recouped

New York County Courthouse (Justices Borrok, Chan, Sohen, Crane, Masley, Ostrager, Reed and Schecter)
Commercial Case Notes / Professional Malpractice

Legal Malpractice Claim Fails for Lack of Evidence of Causation

On September 14, 2023, Justice Schecter of the New York County Commercial Division issued a decision in Marconi v. Gates Capital Corp., 2023 NY Slip Op. 33197(U), dismissing a legal malpractice claim on summary judgment for lack of facts showing that the defendants’ alleged malpractice damaged the plaintiff . . . Continue reading Legal Malpractice Claim Fails for Lack of Evidence of Causation

New York County Courthouse (Justices Borrok, Chan, Sohen, Crane, Masley, Ostrager, Reed and Schecter)
Commercial Case Notes / Service of Process

Even if a Party’s Counsel in Another Action Agrees to Accept Service, Service is not Effective Without Evidence that the Defendant Gave His Counsel Permission to Accept Service

On September 15, 2023, Justice Cohen of the New York County Commercial Division issued a decision in Credit Europe Bank (Dubai) Ltd. v. Shetty, 2023 NY Slip Op. 33204(U), holding that even if a party’s counsel in another action agrees to accept service, service is not effective without evidence that the defendant gave his counsel permission to accept service . . . Continue reading Even if a Party’s Counsel in Another Action Agrees to Accept Service, Service is not Effective Without Evidence that the Defendant Gave His Counsel Permission to Accept Service

New York County Courthouse (Justices Borrok, Chan, Sohen, Crane, Masley, Ostrager, Reed and Schecter)
Commercial Case Notes / Contracts / Damages

Rescission and Rescissory Damages Unavailable When Defendant is Not Contractual Counterparty

On September 14, 2023, Justice Schecter of the New York County Commercial Division issued a decision in Han v. Kwak, 2023 NY Slip Op. 33207(U), holding that rescission and rescissory damages are unavailable against a defendant who is not a party to the transaction that he fraudulently induced.” Continue reading Rescission and Rescissory Damages Unavailable When Defendant is Not Contractual Counterparty

ABS Update / Claims Against Trustees

Where Servicer and Originator Were the Same, Originator’s Failure to Cure Defective Loans Constituted Servicer Failure to Perform Event of Default

On September 21, 2023, Judge Engelmayer of the S.D.N.Y, issued a decision in Ambac Assurance Corporation v. U.S. Bank, 17 Civ. 2614 (PAE) (KHP), holding that where the servicer and originator were the same, the originator’s failure to cure defective loans was a servicer failure to perform event of default. Continue reading Where Servicer and Originator Were the Same, Originator’s Failure to Cure Defective Loans Constituted Servicer Failure to Perform Event of Default