Yellow Cab, etc. v. Schwartz, et al, United States District Court, Southern District of New York, 1:13-cv-07575 (JSR/GWG).
in addition to a monetary settlement payable to our clients, after intense litigation and expedited discovery before Judge Jed S. Rakoff, Phil Landrigan and were able to obtain permanent injunctions against defendants’ infringement of the clients’ patent. The patent, previously prosecuted to issuance in the PTO by Peter, was for an in-vehicle vending machine. One party that was introduced to the product by the client was also permanently enjoined from any activities related to in vehicle vending machines.
Miller v. RMR Wealth Builders, American Arbitration Association, AAA Case#: 13-20-1300-2355, 10/21/14
The lawyers in our Business Litigation group sometimes represent shareholders in disputes that are determined in arbitration. Here, Phil Landrigan represented the remaining shareholders and the company in an arbitration brought by a former shareholder’s estate, seeking valuation on the buyout of the decedent’s shares. The estate sought to impose a value to the shares based on a supposed fair market value of the company, rather than the certificate of value on file with the company. Phil convinced the arbitrators to bifurcate proceedings to address as a threshold issue the enforceability of the shareholders agreement and the certificate of value on file with the company before considering potentially complex issues of market and/or other valuation methods with the attendant cumbersome and business threatening disclosure of confidential information. Phil won the first phase of the proceedings and avoided the expense and uncertainty of any valuation other than the one the shareholders had earlier agreed. Phil overcame equitable arguments as to the fairness of adhering to a initial low value ascribed by the shareholders shortly after forming the company and not updated for decades before the shareholder’s death. Phil argued that the company reimbursed shareholders for life insurance premiums on policies with face amounts in excess of the certificated value of their shares for the undocumented purpose of funding the shareholder buyout. Although the decedent allowed his policy to lapse because he didn’t want to pay even his proportionate share of the growing premiums and the argument that the benefits would offset the amount to be paid in any buyout was not successful in itself, it did undercut the estate’s supposed equitable/fairness argument as to the amount the company should pay for the shares.
Federal Court Litigation - Spousal Consent Provisions - Dispute on IRA Accounts - ERISA Disputes
Our lawyers sometimes represent clients in disputes on who is entitled to assets in qualified plans or IRA accounts on the death of a plan participant. Here, Phil Landrigan, working with Dina Aversano, obtained summary judgment dismissing claims made to an IRA on the death of the account holder by his second wife. The wife claimed that the spousal consent requirement of ERISA was not complied with in rolling over the husband’s former Keogh account into the IRA. Phil and Dina pursued discovery concerning the wife’s involvement in opening the IRA to fulfill requirements of the parties’ prenuptial agreement and, ultimately, obtained the wife’s acknowledgement, contrary to her pleadings and her lawyer’s contentions, that she actually consented to the transfer of the Keogh account. The lack of credibility of the wife’s claims, among other things, convinced Judge Joseph F. Bianco, sitting in the Federal Court for the Eastern District of New York, that the husband’s retirement accounts were not subject to ERISA’s spousal consent provisions, because the husband was self employed and the Keogh “plan” had no other participants. Judge Bianco also ruled that the claims were barred by ERISA’s three-year limitations period and that the wife had no private right of action under the parallel spousal consent provisions of the Internal Revenue Code.
Business Litigation - Allegation of Criminal Activity - Forfeiture of Property - Forum Non Coveniens
Sometimes, in civil litigation there is an allegation by a governmental entity of potential wrongdoing that could prevent our clients from getting or keeping their property. Here, several of our lawyers, Phillip C. Landrigan, Dina M. Aversano and Joel M. Aurnou (working with Milton R. Gleit) represented the named owner of a brokerage account that was seized by the United States on the grounds that the property was traceable to criminal activity, e.g., money laundering and drug trafficking. In addition to our client, a Panamanian resident was under surveillance by federal agents when exchanging cash with a Peso converter in Panama; and another related business entity made claims for return of the funds formerly in the account. With this background, our lawyers moved to dismiss the government’s civil forfeiture complaint because there were insufficient allegations tracing funds deposited in the account to any criminal activity, and based on the applicable statute of limitations. In the face of our arguments, the US Attorney for the Southern District abandoned the civil forfeiture action initiated by the US Attorney's Eastern District office, thereby consenting to the dismissal of the government’s complaint. The competing claims for “return” of the seized property, however, remained before the court. We moved to dismiss those claims based on Artticle III of the Constitution and forum non conveniens and successfully argued that the Panamanian claimants were mere general creditors with no standing to assert a right for “return” of the seized property, and no party was a US citizen or doing business in the US. The Southern District, per Judge Victor Marrero, granted our motion to dismiss the remaining claims on the alternative forum non conveniens grounds, conditioned only on our client consenting to jurisdiction in Dubai, United Arab Emirates, where it conducts business in any event.
Business Litigation - CERCLA Action Seeking $44 million for Clean Up Costs to be Dismissed
Federal Magistrate Judge Orehnstein has recommended that a $44 million CERCLA cost recovery action against one of the firm’s clients should be dismissed on statute of limitations grounds. Phillip C. Landrigan and counsel for the other co-defendants argued that construction of a Charcoal Treatment System and an Air Stripping Tower designed to strip volatile organic compounds from a nearby drinking supply well were part of the long term “remediation” plan for the site rather than emergency or short term “removal” efforts. The Magistrate Judge agreed, and found the distinction critical to the Court’s conclusion that the State’s claim accrued when construction of these systems began and that the statute of limitations had expired before the state brought suit.
In addition to approximately $4 million in past clean up costs, the recommendation would also bar the State’s CERCLA claims for an estimated $40 million in future costs. The case was subsequently settled for roughly 1/10th the State’s prior demand.
Business Litigation - CERCLA Environmental Cost Recovery Action Seeking $2.6 million Settled for $150,000
NYS v. Ametek, USDC, SDNY, Docket No. 7:05-cv-02186 (SCR)(LS)
Our lawyers have large experience in dealing with CERCLA litigation. Here, NY State’s $2.6 million claim for municipal landfill closure costs settled for merely $151,250 after Phillip C. Landrigan points both to client’s small volume of waste and municipality’s own culpable conduct at the site.
Phil convinced the NY State Attorney General’s Office that the municipality’s culpability in dumping incinerator ash, including wastes from area manufacturing and carting companies, made its claim to shift responsibility to the firm’s client ring hollow. In response to the apparent lack of appreciation of the municipality’s history of activity, both at its own incineration plant and as an operator of the landfill, the AG’s Office was forced to concede that the municipality would likely have to contribute well in excess of EPA’s “standard” guidelines for municipal landfill operators. Based on these arguments, all PRPs’ contributions were reduced from $2.6 million to $420,000, and based on the firm’s gathering of demonstrative proof, both of the volume of material dumped by the client and the volume of material on the site based on the DEC’s own studies, the client’s share was further reduced to only $151,250.
Favorable Settlement of Closely-Held Insurance Brokerage Business
Sometimes, business disputes are not settled until litigation has been commenced. Phillip C. Landrigan negotiated a settlement of a corporate dissolution action between brothers in the insurance brokerage business, after defeating pre-trial efforts to force the dissolution at book value. In the settlement, Phil obtained for the client: (i) complete control of the personal lines business, under extended non-compete terms; (ii) a premium factor on the value of the lines ceded to the co-shareholder; (iii) a personal guarantee of obligations under the settlement, secured by the client’s direct control over the revenues generated by the entire book of business, including that ceded to the other shareholder; as well as (iv) the other shareholder’s pro-rata payment of the capital gains tax on the grounds that the other shareholder’s action in seeking dissolution forced the gain to be realized.
Ellington v. HSBC, USDC, SDNY, Dkt. No.1:06-cv-2353
Phillip C. Landrigan obtained delivery of Venezuelan Oil warrants for the firm’s clients after an over six year failure to deliver, arguing the breach of contract to deliver securities occurred not on the settlement date, but when the Broker Dealer repudiated the obligation to deliver after the demand by the client.
The Firm’s hedge fund clients recovered all warrants that failed to settle as part of a market operations failure dating back to the 1990s when the warrants were first attached to bonds issued by Venezuela in connection with the South American debt restructuring. For over a decade after the warrants were issued the price of oil had not crossed the threshold requiring payment on the warrants. Brokerages valued the warrants at $0 and their failure to properly settle the warrants with the bonds was not captured by their “fail” reports because of the zero value. The client was unaware that the warrants were not delivered to its account together with the bonds that traded with the warrants under the Emerging Markets Trading Association (“EMTA”) market practices and post market failure netting protocols obtained by the firm over EMTA’s and the broker’s objections.
Phil was able to obtain evidence that, although the broker had argued the claim for a failure to deliver was stale, the broker was still carrying the failed trade on its books and records, and reported the failure to deliver to the NYSE as part of that SRO’s investigation of the industry wide failure to deliver Venezuelan Oil Warrants. In addition, Phil was able to obtain expert testimony from a senior brokerage industry insider that a failure to deliver securities on the settlement date (T 3) did not trigger the client’s buy in or cover obligations and that no breach or accrual of the action occurred until the brokerage house actually refused the client’s demand for delivery after the failure to deliver became known to the customer.
Denslow v. Wood-Smith, AAA Case No. 19-180-00222-04 (2007)
Phillip C. Landrigan, who co-chairs our Business Litigation group, sometimes represents clients before the American Arbitration Association (AAA). In this case, the AAA awarded the firm’s client a 50% interest upon dissolution of a corporation and denied claims made by the attorney co-shareholder for a partnership interest in real property and for attorney’s fees allegedly owed by the client in an unrelated personal injury action. In a contentious litigation with the client’s co-shareholder, who was also an attorney to the corporation and the client in the past, Phil was able to guide the client and the arbitrator through a thicket of allegations and theories conjured up by the attorney co-shareholder to deny the client the economic value of his interest in the corporation. The Arbitrator not only awarded the client 50% of the corporation, but denied the adversary’s claims for a partnership interest in real property titled in the client’s name but allegedly purchased under a verbal “partnership” agreement, as well as claims by the attorney for a contingent fee in connection with obtaining the settlement of a wrongful death claim on behalf of the client’s wife’s estate. The attorney sought to introduce evidence of the real estate partnership through the testimony of an attorney allegedly representing both parties in the real estate deal. Phil successfully convinced the non-attorney arbitrator that the testimony was barred by the attorney client privilege. Phil also obtained the OCA closing statement on the earlier personal injury claim as well as Surrogates Court records approving the wrongful death settlement and showing the amount of the attorney’s fee claimed and earlier awarded to the attorney adversary.
Business Litigation - Breach of Warranty Agreement - Settled the Day Before Jury Selection
Breach of Warranty Agreement - Settled the Day Before Jury Selection
Robert M. Redis and Phillip C. Landrigan were trial counsel in a Seattle based retailer’s multi-million dollar dispute with a national cellular phone warranty provider. The Seattle retailer sold cellular phones and services together with warranties supplementing the manufacturer’s warranty to include breakage and other failure of the phones’ operation. After a history of customer complaints and general dissatisfaction with the warranty provider, including often long delayed return of physical phones to customers that continued to be non-operational, the client assumed responsibility for satisfying customer claims and sought damages against the warranty provider for its costs in doing so. Efforts by the warranty company to secrete assets were prevented by obtaining a pre-judgment restraint on its assets. Ultimately, a settlement for virtually all costs claimed by the client was obtained the day before jury selection.
Phil and Bob thwarted efforts by the warranty company’s counsel to prevent introduction of damages evidence in summary form. Having streamlined the trial by preventing the need to introduce the actual defective phones and their corresponding warranty claim forms and coverage determinations, the likelihood of both a favorable and timely decision was greatly enhanced.
Ultimately, the settlement was paid out of a contingency fund established under a post litigation asset purchase agreement. Phil’s detailed, well documented and legally compelling opinion as to the reasonableness of the settlement convinced the acquiring company to release the settlement funds without further litigation.
Business Litigation - Construction - Cost of Completion Claim Defeated at Trial
Yorktown 202 Assocs. v. B.J.’s, Westchester County Index Number 4585/98
Trying a Business Litigation case requires enormous attention to detail by good trial lawyers. Here, Phillip C. Landrigan obtained dismissal of a multi-million dollar construction claim against his big box retailing client at trial before the Commercial Division of the Westchester Supreme Court. The developer, after failing to complete the project on time and having to stop work due to defective construction, sold the property to the client. The contract of sale was subject to an additional payment if the cost of completion of the project pursuant to construction drawings attached to the contract of sale was below a specified amount. After the client completed the construction a dispute was raised by the developer/seller as to whether certain aspects of the re-design and actual construction were properly included in BJs’ cost of completion calculation. Phil was not involved in negotiations for the sale, but was asked to handle the litigation over the developer’s claim for additional payments claimed to be due under the contract of sale.
Phil painstakingly introduced evidence detailing the financial backup, construction management and engineering aspects of the project. Phil convinced the judge that regardless of any deviation of the actual construction from the original drawings, the original design included, both by industry practice, and various architectural and engineering notes in the original drawings, sound construction practices. Ultimately, the court found that the re-design and construction changes were properly charged to the cost of completion and that no additional payment was owed to the developer in connection with the sale of the property.
Kassim v. NYCTA, N.Y.Sup.Ct., Queens, Index No. 18874/93 - NY Jury Verdict Reporter XIX/35-18, March 4, 2002
Settlements are often the most desirable outcome, but, sometimes, lawyers must recommend that a case go to trial and to a judge or jury verdict. Phillip C. Landrigan obtained a defense verdict after a two week trial of this brain injury case with multiple traumas. Plaintiff’s theory of the case was that a piece of a railroad tie fell from an elevated track striking plaintiff in the head, and then striking and fracturing his femur. Plaintiff had expert evidence that learning disabilities and a subsequent psychotic break were attributable to his head injury. Plaintiff’s claim was also supported by an eyewitness who was, however, effectively shown to be untruthful.
Based on investigative interviews, Phil offered, first in a voir dire before the court and later before the jury, testimony of two of three bystanders who recalled unidentified witnesses describing plaintiff’s fall from the elevated train station immediately after the accident. Based on the demeanor of these witnesses and the proximity in time to the accident, the court permitted the bystanders’ testimony based on the excited utterance exception to the hearsay rule. In addition, Phil presented testimony of a medical expert that the injury to one side of plaintiff’s head and the fracture of the femur on the opposite side would be inconsistent with a falling object of the size claimed by plaintiff. Essentially a falling railroad tie hitting plaintiff’s head with the force sufficient to deflect it to hit his leg on the other side of his body would have crushed rather than merely injured his head. Rather, the expert opined that the plaintiff’s own fall from the platform would be consistent with the multiple traumas he suffered.
Post verdict interviews of the jury indicated they were very sympathetic towards the injured plaintiff. They also credited the defense evidence and Phil’s arguments, reporting they felt compelled by the judge’s charge, as sought by Phil, that if plaintiff’s theory of a falling object was found to be untrue they must return a defense verdict. Prior to closing arguments plaintiff’s demand was $1.5 million. On Phil’s advice, the client rejected plaintiff’s reduced demand for $150,000 when the jury reported it had reached a verdict within the hour of being given the case.
Appearing after a verdict of race based pay disparity and retaliation against one of his clients, Phillip C. Landrigan successfully argued on appeal that the trial court improperly admitted testimony from the client’s EEO compliance officer that she had determined that racial bias was a factor in plaintiff’s pay disparity claim. New York’s Appellate Division, Second Department, found the testimony was barred because, as Phil had argued, the EEO officer was not authorized by the client to speak on its behalf and, therefore, her hearsay testimony was not admissible as an admission of the client. Although not cited as the grounds for the decision, the record was replete with improper references by the EEO officer to her efforts to settle the claim internally.
Based on his command of the record and post verdict investigation of the facts, the client asked Phil to handle the matter when the case was set for a new trial. After preparation of numerous witnesses and review of policies and practices of several departments to which plaintiff was assigned after his pay claim was made, Phil was able to present evidence of the legitimate business reasons for both the disparity in pay upon plaintiff’s employment and various adverse employment actions taken against plaintiff, including his dismissal. After several favorable rulings and the introduction of evidence favorable to the defense, plaintiff settled for 20% of the original verdict during the second week of trial.
Business Litigation - Antitrust/Trade Practices – Summary Judgment Dismissing Price Fixing and Group Boycott Claims Withstands Appeal
Wine Markets International, Inc. v. Bass, USCA, 9th Cir., Dkt. No. 99-16176/USDC, NDCA, Dkt. No. 3:98-cv-03807
After obtaining the transfer of this action from the Eastern District of New York to the Northern District of California for the convenience of trial, Phillip C. Landrigan successfully moved for summary judgment. In its decision the district court in California dismissed all federal claims, including claims for price fixing, group boycott as well as all but one business tort claim. That one claim was based on the allegation that one of Phil’s clients referred to plaintiff’s policies on pricing wine as “goofy,” i.e., the court found the allegation presented an issue of fact as to whether the client breached his duty of loyalty to his employer.
The trial may long have suffered the label of the “Goofy Trial,” had plaintiff not conceded it would be pointless and asked Phil to consent to its dismissal, subject to reinstatement if an appeal by plaintiff on its other claims was successful.
Phil, however, convinced the 9th Circuit Court of Appeals that it had no jurisdiction over plaintiff’s appeal because there was no “final” judgment covering all of plaintiff’s claims. Unfortunately for plaintiff, its counsel was unaware of the limitations of appellate jurisdiction in the federal court system. It had no right of appeal from a dismissal that was subject to reinstatement because it was, by definition, not final. Plaintiff also had no right under the stipulation to reinstate any claim because plaintiff had not succeeded on any issue on appeal.