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Court Crier: General Commercial Litigation

In Chang v. Children’s Advocacy Center of Delaware, the United States Court of Appeals for the Third Circuit addressed whether a trial court must hold an in-person hearing prior to the dismissal of claims under the False Claims Act (FCA). The court noted that the plaintiff failed to request a hearing and that the lower court was not compelled to schedule one sua sponte. (September 12, 2019)

In Delta Health Technologies, LLC v. Companions and Homemakers, Inc., the Superior Court of Pennsylvania considered whether personal jurisdiction could be exercised over a Connecticut-based home care services company for a dispute over unpaid invoices due to a Pennsylvania based software company. The companies signed a contract to use the software company’s scheduling software with the home care services company which included certain enhancements to be made to the software company’s base scheduling software. The contract provided for no penalty cancellation by the home care services company within six months which it ultimately exercised. The software company then sought payment for unpaid invoices related to the enhancement work. In the course of negotiating the contract representatives from the home services company came to Pennsylvania, participated in extensive negotiations and were aware that their data would be loaded onto servers in Pennsylvania. The court held that the home services company purposefully availed itself of sufficient contacts with Pennsylvania to subject it to specific personal jurisdiction in the state. (August 30, 2019)

In Matheis v. CSL Plasma, Inc., the United States Court of Appeals for the Third Circuit addressed a plasma donation center rule barring anyone who has a psychiatric service animal from donating plasma. The donator was a former police officer who had a psychiatric service dog to help manage his PTSD. The plasma center’s rule was enacted after the donator had donated 90 times without incident. The court held that under 42 U.S.C. s 12101(a)(1) and the Americans with Disabilities Act that plasma centers are service establishments and thus subject to the ADA. The court also concluded that plasma centers must allow service animals unless a regulatory exception applies. Further, any “safety rule” must be based on actual risks and not mere “speculation, stereotypes, or generalizations.” (August 30, 2019)

In Pellegrino v. United States of America Transportation Security Administration et al., the United States Court of Appeals for the Third Circuit addressed whether an airline passenger who was subjected to a security screening by transportation safety officers (TSOs) which included being taken into a private room, having her bag roughly rummaged through, items damaged and generally being mistreated could sue the TSA and TSOs under 28 U.S.C. s 2680(h). Following the search the TSOs made allegations against the passenger which resulted in criminal charges being filed against her. The charges were ultimately dismissed and the passenger filed suit under 28 U.S.C. s 2680(h) of the Federal Tort Claims Act which waives sovereign immunity for intentional torts committed by “investigative or law enforcement.” The court held that TSOs were investigative officers under the Federal Tort Claims Act and the TSOs and TSA waived sovereign immunity and could be sued by the passenger. (August 30, 2019)

In Crookendale v. New York City Health and Hospitals Corporation, the New York Supreme Court, Appellate Division, 1st Department, addressed a gender discrimination claim under the New York City Human Rights Law (HRL). The First Department held that the plaintiff’s claim of gender discrimination should not have been dismissed while sustaining the claim of hostile work environment due to sexual harassment because the HRL does not differentiate between sexual harassment and other forms of gender discrimination. The City HRL requires that sexual harassment be viewed as “one species of sex-or gender-based discrimination.” The First Department held that the plaintiff sufficiently described being touched and complimented inappropriately to permit a jury to reasonably find that she was treated “less well” than her male colleagues because of her gender and that the conduct was neither petty nor trivial. (September 3, 2019)

In Hamann v. Carpenter, the United States Court of Appeals for the First Circuit addressed whether a car dealer properly alleged tortious interference with a contractual relationship and tortious interference with an advantageous business relationship after he was allegedly denied the fruits of a profitable exclusive-seller agreement for the sale of a 1953 Ferrari. The court ruled that the dealer’s allegation that another dealer pressured the seller to breach the agreement by threatening to harm the seller’s other business relationships went beyond “hard bargaining” and, therefore, held that the dealer had properly alleged an improper motive. However, the court ruled that the dealer had not properly alleged a claim for tortious interference with an advantageous business relationship because any relationship beyond the exclusive seller agreement was too speculative. (September 5, 2019)

In Turco v. City of Englewood, the United States Court of Appeals for the Third Circuit considered whether an ordinance establishing fixed eight-foot buffer zones around the entrances of certain facilities and prohibiting First Amendment expression on sidewalks therein violated the First Amendment. The court held that under the summary judgment record, it did not. Applying intermediate scrutiny for content- and viewpoint- neutral restrictions on the time, place, and manner of First Amendment expression in a public forum, the court reversed summary judgment in favor of the petitioner on her facial and as-applied challenges to the ordinance. The court concluded that a reasonable jury could find the ordinance “narrowly tailored to serve a significant governmental interest”—the standard for intermediate scrutiny—because the petitioner’s testimony suggested no “inappropriate burden” on her First Amendment expression in practice after the ordinance and a reasonable jury could conclude from city officials’ testimony that financial constraints and the intimidating tactics of sidewalk protesters (not the petitioner) made less restrictive alternatives ineffective. The court emphasized the fact-intensive nature of resolving buffer-zone challenges. (August 19, 2019)

In Feleccia v. Lackawanna College, the Supreme Court of Pennsylvania addressed whether: (1) a college is required to have qualified medical personnel present at intercollegiate athletic events; and (2) whether an exculpatory clause releasing “any and all liability” signed in connection with participation in intercollegiate sports is enforceable as to ordinary negligence when the word “negligence” is not explicitly contained in the waiver and whether the waiver extends to allegations of gross negligence. On the first issue, the court declined to extend a per se duty to all intercollegiate athletic events, but held that affirmative conduct by the school could create an expectation on which students athletes might reasonably rely that they would receive treatment from a certified athletic trainer. On the second issue, the court found that while exculpatory clauses must clearly provide a person is being relieved of liability for his own acts of negligence, there is no prescribed language that must be used. The court held that recovery for ordinary negligence will be barred so long as the language used is sufficient to express the parties’ intention to bar ordinary negligence claims. The court, concluded, however, that the waiver did not preclude a claim of gross negligence. (August 20, 2019)

In Lividini v. Goldstein, the New York Supreme Court, Appellate Division, 1st Department, addressed the burden requirements on a motion to change venue. In a medical malpractice action, a doctor moved to transfer venue and submitted an affidavit indicating that his principal place of business was located in another county and that was where he spent the majority of his time. The court held that the doctor’s affidavit, which attested to residency in another county but which was devoid of supporting documentation of residency, was insufficient to prove that the original venue designation was improper. (August 20, 2019)

In PPL Electric Utilities Corporation v. City of Lancaster, the Supreme Court of Pennsylvania addressed the enforceability of a city ordinance seeking to impose an “annual occupancy fee” upon state-regulated utilities that utilize the city’s municipal rights-of-way. The court held that the local annual occupancy fee is preempted by the Commonwealth’s Public Utilities Code in favor of the Code’s authority to regulate public utilities and the interest in maintaining uniform regulatory framework that ensures fairness for all utilities and utility subscribers. (August 20, 2019)

In Guerra v. Consolidated Rail Corporation, the United States Court of Appeals for the Third Circuit addressed whether the Federal Railway Safety Act’s 180-day limitations period is “jurisdictional.” The court held that the limitations period is a non-jurisdictional claim-processing rule, the breach of which may defeat an employee’s claim but not a district court’s jurisdiction to hear the case. (August 21, 2019)

In Martin Greenfield Clothiers, Ltd. v. Brooks Brothers Group, Inc., the New York Supreme Court, Appellate Division, 2d Department, addressed the statute of frauds effect on an alleged oral agreement for the manufacture of custom suits. A manufacturer alleged that a retailer breached an oral agreement and sought to recover damages under a theory of promissory estoppel. The court held that the promissory estoppel cause of action was impermissibly predicated on allegations that the defendant violated a promise it made under an oral agreement. Further, to the extent that the promissory estoppel action may have been asserted to circumvent the statute of frauds, the manufacturer was required, but failed to, assert that it suffered unconscionable injury in reliance on the retailer’s alleged promise. (August 21, 2019)

In Charte v. American Tutor, Inc., the United States Court of Appeals for the Third Circuit addressed whether settlement of an employer’s lawsuit against its former employee for making false statements about its business practices barred the employee from pursuing a qui tam action that was filed under seal before the employer’s lawsuit was filed. Since the choice to place the qui tam action under seal was largely the government’s decision, and not the choice of the former employee, the equitable entire-controversy doctrine did not bar the qui tam claim once the seal was lifted. Furthermore, the court noted its desire to prevent False Claims Act defendants from pushing quick settlements of the underlying claims in an attempt to bar the future application of the qui tam claims. (August 12, 2019)

In Primus Pacific Partners 1, LP v. Goldman Sachs Group, Inc. the New York Supreme Court, Appellate Division, 1st Department, addressed application of the forum non conveniens doctrine. The court determined that the trial court properly dismissed the matter on forum non conveniens grounds when a personal-jurisdiction challenge would require a burdensome inquiry. Here, the events at issue and the parties lacked a substantial nexus with New York for the trial court to retain venue. (August 6, 2019)

In Estate of Kainer v. UBS AG, the New York Supreme Court, Appellate Division, 1st Department, considered whether an action could be dismissed on the grounds of forum non conveniens without addressing the issues of personal and subject-matter jurisdiction. The court determined that a court has discretion to dismiss based on forum non conveniens without addressing threshold jurisdictional issues if it determines that a foreign tribunal is better suited to adjudicate the merits of the action(August 6, 2019)

In County of Nassau v. Tech. Insurance Company, Inc., the Supreme Court of New York, Appellate Division, Second Department, considered whether the defendant was contractually required to maintain general liability insurance naming the plaintiffs. The court held that this issue could not be resolved on summary judgement because “when a term or clause is ambiguous and the determination of the parties’ intent depends upon the credibility of extrinsic evidence or a choice among inferences to be drawn from extrinsic evidence” it is an issue of fact and not a question of law. (July 31, 2019)

In Crystallex International Corporation v. Bolivarian Republic of Venezuela, the United States Court of Appeals for the Third Circuit addressed whether the District of Delaware had jurisdiction over a foreign sovereign in an attachment action where the creditor sought to attach a federal judgment to assets of an instrumentality of the sovereign. The court held the Delaware District Court had jurisdiction over the attachment action by virtue of the Sovereign Immunities Act’s arbitration exception, 28 U.S.C. § 1605(a)(6), which specifically allows a federal court to assert jurisdiction to enforce a federal judgment against a foreign sovereign. The court further held the Delaware District Court properly extended its jurisdiction to attach non-immune assets held by the sovereign’s instrumentality under federal common law (a/k/a the Bancec doctrine) because the sovereign had extensive control over its instrumentality. In so doing, the Third Circuit adopted the five “Bancec factors” set forth in the U.S. Supreme Court’s recent Rubin v. Islamic Republic of Iran (2018) opinion. In Rubin, the Supreme Court identified the following “Bancec factors” to aid courts in an “alter ego” jurisdiction analysis: (1) the level of economic control by the government; (2) whether the entity’s profits go to the government; (3) the degree to which government officials manage the entity or otherwise have a hand in its daily affairs; (4) whether the government is the real beneficiary of the entity’s conduct; and (5) whether adherence to separate identities would entitle the foreign state to benefits in United States courts while avoiding its obligations. (July 29, 2019)

In GN Netcom, Inc. v. Plantonics, Inc., the United States Court of Appeals for the Third Circuit considered whether a party’s expert should have been permitted to testify as to the extent of the opposing party’s spoliation of evidence, where the trial court had found evidence of spoliation and instructed the jury it could draw an adverse inference. The court held the expert’s testimony could have helped the jury determine the impact of the spoliated evidence and could have impacted the outcome of the case, therefore it should have been admitted. (July 10, 2019)

In F.K. v. Integrity House, Inc., the Superior Court of New Jersey, Appellate Division, addressed the standard for establishing entitlement to the affirmative defense of charitable immunity under the New Jersey’s Charitable Immunity Act. To determine whether an entity is organized exclusively for charitable purposes, courts conduct a “source of funds assessment” to discern some level of support from charitable donations. Because the record did not allow for a conclusive determination as to the source and use of the defendant’s funding, the defendant did not meet its burden of persuasion on the charitable immunity defense. (July 8, 2019)

In Hedberg v. Wakamatsu, the Supreme Judicial Court of Massachusetts addressed whether a declarant’s lack of memory should establish unavailability for the purpose of a civil hearsay exception under Massachusetts law. The court ruled that such an exception should apply and adopted Proposed Mass. R. Evid. 804(a)(3). (July 11, 2019)

In Bove v. Akpharma Inc., the Superior Court of New Jersey, Appellate Division, affirmed the grant of summary judgment after finding that the plaintiff could not overcome the Worker’s Compensation Bar. The plaintiff alleged that his use of a nasal spray developed by his supervisor caused him to develop cancer. Akphrama Inc. moved for summary judgment based in part of the Worker’s Compensation Bar, which the trial court granted. The court noted that the employer did not force the plaintiff to use the nasal spray, nor know of any dangers related to its use. Accordingly, the plaintiff could not prove that Akpharma Inc. knowingly exposed him to a substantial certainty of injury. (July 11, 2019)

In Bandler v. DeYonker, the New York Supreme Court, Appellate Division, First Department, addressed the statute of limitations for tortious interference with contract and with prospective business relations. In affirming the lower court’s decision to dismiss the complaint as untimely, the court concluded that the statute of limitations is three years from the date of the injury, which is triggered when a plaintiff first sustains damages. The court ruled that the statute of limitations had expired because the plaintiff was injured when he was terminated from his engagement with BPCM in February 2012, not when his federal action against BPCM was dismissed in September 2014. (July 11, 2019)

In Samuels v. Town Sports International, LLC, the New York Supreme Court, Appellate Division, First Department, addressed a sporting venue owner’s duty of care. The court ruled that accumulated dust on an indoor basketball court is not inherent in the sport of basketball, and therefore the owner was liable for the plaintiff’s injury. (July 9, 2019)

In Dominic’s v. Tony’s Famous Tomato Pie Bar, the Superior Court of Pennsylvania considered the requirements to enforce a judgment by confession where a borrower expressly agreed to an automatic entry of default judgment for the entire principal amount in the event of any single missed periodic payment due under a contract related to the sale of real property. The court held that, although a confession of judgment clause in a contract is enforceable, the party seeking to enter the judgment must strictly comply with all of its dictates. Because the complaint accompanying the request to enter judgment did not include an averment that the lender provided a 10 day notice of default to the borrower and an opportunity to cure, the court struck the judgment of default without prejudice. (July 2, 2019)

In Premium Cornerstone Properties, LLC v. S & R Main Realty, LLC, the New York Supreme Court, Appellate Division, Second Department, considered whether the plaintiff was entitled to specific performance of a contact for sale of real property for declaratory relief. The court held that the plaintiff was not entitled to relief sought because no contract of sale existed between the parties. The court’s holding was supported by the fact that “communications between the plaintiff's managing member and the defendants' counsel . . . did not create a binding contract, because there was no ‘manifestation of mutual assent sufficiently definite to assure that the parties [were] truly in agreement with respect to all material terms.’” (June 26, 2019)

In Food Marketing Institute v. Argus Leader, the United States Supreme Court considered whether the disclosure requirements of the Freedom of Information Act (FOIA) required the United States Department of Agriculture (USDA) to release statistical data on individual commercial grocery stores’ participation in government-funded subsidy programs. Specifically, the Court addressed whether FOIA’s confidentiality exemption included any information that was intended to be kept secret, or only information that was likely to cause harm if publicized. The Court adopted the broader definition, holding that commercial or financial information that is both customarily and actually treated as private by its owner, and provided to the government under an assurance of privacy, was within the meaning of “confidential” and not subject to disclosure under FOIA. (June 24, 2019)

In Valentino v. Philadelphia Triathlon, LLC, the Supreme Court of Pennsylvania addressed whether an express assumption of the risk agreement serves as a defense to a wrongful death claim brought by a person not a party to the assumption of the risk agreement. Due to an inability to reach a majority decision, the Supreme Court affirmed the Superior Court’s determination that the wrongful death claim was barred as a matter of law because the decedent’s express assumption of the risk inherent in participating in the triathlon eliminated the event organizer’s duty of care and thus eliminated potential finding of negligent conduct, upon which a wrongful death claim is predicated. (June 18, 2019)

In Citizens Insurance Company of America v. 290 Auto Body, Inc., the Appeals Court of Massachusetts addressed whether a defendant-in-counterclaim met its threshold burden to have the counterclaim dismissed against it under the anti-SLAPP statute. The counterclaim at issue alleged tortious interference that occurred subsequent to the filing of a civil action against that party. Holding that the defendant-in-counterclaim failed to meet its threshold burden of showing that the counterclaim was solely based on the defendant-in-counterclaim’s petitioning activity, the court explained that the counterclaim was based on a private interaction, albeit subsequent to the filing of the original action, but not because of the defendant-in-counterclaim’s statements designed to reach a governmental body. (June 21, 2019)

In Kisor v. Wilkie, the United States Supreme Court addressed a challenge to deference announced in Auer v. Robbins and Bowles v. Seminole Rock & Sand Co. for the reasonable interpretation of genuinely ambiguous rules by federal agencies. The Court held that federal agencies are entitled to deference in the interpretation of genuinely ambiguous rules when the regulatory interpretation is the agency’s authoritative or official position, the interpretation implicates its substantive expertise, and the interpretation reflects its “fair and considered judgment.” A court should decline to defer to a merely “convenient litigation position” or to a new interpretation that creates “unfair surprise” to regulated parties. The Court specified that it upheld Auer and Seminole Rock and reinforced the limits of the standard. (June 26, 2019)

In Marshall v. Brown’s IA, LLC, the Superior Court of Pennsylvania addressed whether a showing of bad faith is necessary to warrant an adverse inference jury instruction on spoliation. The court held a party’s bad faith, or lack of it, in the destruction of potentially relevant evidence goes to whether and what type of sanction should be imposed, not whether spoliation occurred. The court found the defendant unilaterally decided not to preserve all of the requested surveillance tape, thereby failing to preserve arguably relevant evidence, which constituted spoliation. (June 19, 2019)

In Manhattan Community Access Corporation v. Halleck, the United States Supreme Court held, under the state-action doctrine, that the operation of public access channels on a cable system is not a traditional, exclusive public function. The Court reasoned that a private entity who opens its property for speech by others is not transformed by that fact alone into a state actor. The Court concluded that, in operating public access channels, a cable network is a private actor, not a state actor, and therefore is not subject to First Amendment constraints on its editorial discretion. (June 17, 2019)

In Virginia Uranium, Inc. v. Warren, the United States Supreme Court held that the Constitution’s Supremacy Clause does not permit Congress to strip states of their traditional power to regulate uranium mining on private lands within their borders. (June 17, 2019)

In Kaplan v Conway & Conway, the New York Supreme Court, Appellate Division, First Department, was asked to consider whether an attorney’s failure to advocate for a “formal closure of a sham internal investigation” amounted to a failure to “exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession” and whether the breach caused the plaintiff’s damages. As a result of the alleged negligence, plaintiffs alleged that they suffered reputational harm and were subject to FINRA investigations. Applying the motion to dismiss standard, the Appellate Division found that the plaintiffs’ allegations were vague, speculative and failed to “fit into any cognizable legal theory.” (June 6, 2019)

In Glueck v Starbucks Corporation, the New York Supreme Court, Appellate Division, First Department, was asked to consider whether Starbucks acted negligently when the plaintiff, an elderly woman with a cane, tripped and fell outside its shop. The plaintiff was unable to identify where exactly she fell or how, and gave multiple versions of the accident. Neither of the witnesses nor an expert could identify where the woman fell, and in any event the expert report was unsworn and speculative. The court accordingly denied the plaintiff’s motion for summary judgment. (June 6, 2019)

In Narleski v. Gomes, the Superior Court of New Jersey addressed whether an underage adult host or his parents owe a legal duty to parties injured as a result of underage alcohol consumption. The court held that, absent proven knowledge or consent, parents of an underage adult host do not owe a legal duty to prevent their child from allowing other underage individuals from drinking alcohol in their home. Although the court further held that the underage adult host owed no duty under the current law, it prospectively held that an underage adult owes a common law duty to injured parties to desist from facilitation of alcohol consumption by other underage adults in his or her place of residence. (June 6, 2019)

In Paladino v. Auletto Enterprises, Inc., the Superior Court of New Jersey clarified the standard for evaluating a claim of the work-product privilege pertaining to materials prepared by an investigator hired by an insurer prior to litigation. The court held that there is no per se or presumptive rule that materials prepared or collected before litigation are not prepared in anticipation of litigation. Instead, there is a case-by-case, fact-specific analysis to be undertaken. If it is determined that the materials were prepared or collected in anticipation of litigation, the party seeking the materials must show a substantial need for the discovery and demonstrate that he or she is unable to obtain the substantial equivalent of the materials without undue hardship. (June 6, 2019)

In US Premium Finance v. Terranova Masonry, Inc., the New York Supreme Court, Appellate Division, 2d Department, granted the plaintiff’s motion for summary judgment in lieu of a complaint pursuant to CPLR 3213, for breach of a premium finance agreement. The court held that the plaintiff established the existence of an instrument for the payment of a sum certain and the defendant’s failure to make the payments in accordance with the terms of that instrument. (May 15, 2019)

In Franchise Tax Board of California v. Hyatt, the United States Supreme Court reversed its previous decision which allowed a state to be sued in another state’s courts. The Court held that contrary to its prior ruling, states have sovereign immunity from suits brought in state courts of other states and that Article III of the Constitution and the 11th Amendment act to prevent suits which would allow states to disregard the sovereignty of another state. (May 13, 2019)

In Doe v. Heart Solutions, PC, the United States Court of Appeals for the Third Circuit addressed whether an individual’s guilty plea on a charge of Medicare fraud and an accompanying colloquy foreclosed a triable issue of fact as to that individual’s civil liability under the False Claims Act (FCA). The court rejected the individual’s argument that summary judgment should be precluded because a genuine issue remained on the element of ownership. The court found that under the FCA, the issue of “ownership” is irrelevant, explaining that “individual employees with no ownership interest in a company” may still be liable under the FCA. In so ruling, the court also discounted an unsworn statement submitted by a third party, finding that such unsworn statements not subject to the penalty of perjury are insufficient as a matter of law to establish a necessary element of a claim. (May 3, 2019)

In Salazar v. MKGC + Design, the Superior Court of New Jersey, Appellate Division addressed whether the trial court properly granted the defendants’ pretrial motion for discovery sanctions, including their request to bar expert discovery, which resulted in the involuntary dismissal of their complaint. The defendants had filed their motion belatedly after discovery had ended without demonstrating good cause to do so, as required by the court rules. The court held that the trial court abused its discretion by effectively barring claims as a discovery sanction without explaining its reasons for overlooking the discovery rules, which only permitted the defendants to file the motion late if they had good cause. (April 8, 2019)

In Vaughn, F. v. Olympus America, Inc., the Superior Court of Pennsylvania addressed preliminary objections seeking dismissal for lack of personal jurisdiction. The court held that Olympus had contacts with Pennsylvania that were sufficiently related to the causes of action where the plaintiff’s estate is suing the defendant and is subject to Pennsylvania’s specific jurisdiction. Further, the court reversed the trial court’s order granting a joint motion to dismiss for forum non conveniens after finding the lower court abused its discretion in finding “weighty reasons” to disturb the plaintiff’s choice of forum. Even though a majority of the evidence was in North Carolina or Japan, and not Pennsylvania, the court found that the plaintiff can establish a close connection with a forum based upon relevant corporate actions that take place there. (April 10, 2019)

In XpresSpa Holdings, LLC v. Cordial Endeavor Concessions of Atlanta, LLC, the New York Supreme Court, Appellate Division, First Department, addressed the amount of contacts necessary to support a finding of personal jurisdiction in New York. A majority owner of an airport spa concession sought to hold a minority owner of the spa personally liable and sought to sue in New York. The court found that because the minority owner attended three meetings in New York, accepted regular payments and operational support from individuals in New York, and maintained an ownership interest in an entity that was partnered in and had an interest in the New York spa, personal jurisdiction in New York was warranted. (April 11, 2019)

In Biro v. Conde Nast, the Supreme Court of New York, Appellate Division, First Department, considered whether a magazine publisher’s email transmission of a previously published magazine article constituted a new defamation action based on republication. The court held that the email, which contained a hyperlink to the article, was not a republication of the article because “the article was unmodified and had been continuously archived on the same website since the printed version was first published.” (April 4, 2019)

In Winklevoss v. Steinberg, the New York Supreme Court, Appellate Division, 1st Department, considered a defamation claim brought by purchasers who withdrew from a deal to purchase stock in a medical cannabis company. The seller sued the purchasers for specific performance and, in so doing, allegedly made false statements defaming the purchasers. The court, in considering whether the seller had defamed the purchasers, accepted that the purchasers were limited purpose public figures through their voluntary participation in numerous interviews in widely covered conferences and meetings with entrepreneurs and in their own radio broadcasts. The purchasers were also general purpose public figures by virtue of their participation in the Olympics, their portrayal in the film “The Social Network,” and routine coverage in popular media in which they willingly participate. Since actual malice is required for the defamation of public figures, the defamation claim failed because the purchasers did not show actual malice. (March 28, 2019)

In Taquana Jones v. The City of New York, the New York Supreme Court, Appellate Division, First Department addressed whether the hazardous condition on the roadway which allegedly caused the plaintiff to trip and fall was caused by the negligence of a subcontractor performing work in the area. Despite photographs, work order and testimony demonstrating that there were no deficiencies in the subcontractor’s work, the court determined that issues of fact existedsufficient to deny summary judgment “upon drawing all reasonable inferences.” (March 21, 2019)

In Morse v. Fisher Asset Management, LLC, the Superior Court of Pennsylvania addressed whether an order dismissing a complaintpursuant to Pa.R.C.P. 1028(a)(6) tolled the statute of limitations. The court held that if a trial court sustains preliminary objections seeking enforcement of an agreement for alternate dispute resolution pursuant to Pa.R.C.P. 1028(a)(6), thereby dismissing the complaint, then the dismissal does not toll the statute of limitations. (March 15, 2019)

In Anadarko Petroleum Corporation, et al. v. Commonwealth of Pennsylvania, the Commonwealth Court of Pennsylvania addressed two issues of first impression pertaining to Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (UTPCPL): (1) whether the Attorney General can bring a cause of action against lessees due to allegedly wrongful conduct perpetrated by the lessees in the context of leasing subsurface mineral rights from private landowners; and (2) whether the Attorney General can bring a cause of action against those lessees for alleged violations of antitrust law. The court held that the Attorney General had standing and a viable cause of action for allegedly wrongful conduct because the leases at issue did qualify as “‘trade’ or ‘commerce’” under UTPCPL. The court further held that the Attorney General was permitted to file a UTPCPL-based antitrust lawsuit, but can only pursue such claims where the so-called “antitrust” conduct qualifies as “unfair methods of competition” or “unfair or deceptive acts or practices,” as those terms have been either statutorily defined in the UTPCPL or by the Attorney General through the administrative rulemaking process. (March 15, 2019)

In Orazio Petito v. Law Offices of Bart J. Eagle, PLLC, the New York Supreme Court, Appellate Division, First Department addressed the sufficiency of breach of contract causes of action in a malpractice claim. Explaining that allegations of negligence in support of a breach of contract claim without any specific claims to support improper billsor damage resulting therefrom are insufficient, the court determined that the complaint failed to state a cause of action. (March 21, 2019)

In In re Global Liberty Insurance Company, the New York Supreme Court, Appellate Division, First Department considered whether an arbitral award must be vacated, entitling the respondent to “no-fault insurance benefits for medical equipment” that were provided to its assignor. The petitioner originally denied the claim on the basis that the assignor’s surgery for a degenerative condition “was not medically necessary in relation to the accident.” The court determined that “it would be irrational to conclude that the need for the subject medical equipment was casually related to the accident” and vacated the award. (March 21, 2019)

In Calabro v. Socolofksy, the Superior Court of Pennsylvania considered the requirements to establish personal jurisdiction. An investment banker from Pennsylvania took a new job with an Illinois investment bank. While he was working at the Illinois bank a former coworker contacted the bank and informed them that the investment banker had been removed from another job for poor performance. The Illinois bank terminated the banker for failing to disclose this work experience. The investment banker then sued the former coworker in Philadelphia County for intentionally interfering with his business relationship with the Illinois bank. The court held that because the coworker was domiciled in Wisconsin and none of the relevant acts occurred in Pennsylvania it did not have personal jurisdiction over the coworker. (March 11, 2019)

In Jam v. International Finance Corporation, the United States Supreme Court held that the International Organizations Immunities Act (IOIA) affords international organizations the same immunity from suit as foreign governments currently enjoy under the Foreign Sovereign Immunities Act (FSIA). The IOIA uses language which placed international organizations and foreign governments on equal footing with respect to immunity from suit and specifically references immunity enjoyed by foreign governments. The Court agreed that an international organization is only entitled to the limited or “restrictive” immunity that foreign governments currently enjoy and not the absolute immunity from suit that foreign governments enjoyed when IOIA was first enacted. However, the IOIA only provides default rules, and an international organization’s charter can always specify a different level of immunity. (February 27, 2019)

In Joseph Scott, Sr. v. September 24th Street, LLC, the New York Supreme Court, Appellate Division, 1st Department, addressed whether a property seller was entitled to reform a fully executed contract of sale to convey real property to reflect a higher purchase price. The court concluded the seller was entitled to contract reformation and specific performance of the reformed contract, finding clear and convincing evidence that the price contained in the executed contract was the result of a scrivener’s error and did not reflect the price the parties had agreed before reducing their agreement to writing. The court observed that the seller’s asking price, the buyer’s first offer, and the parties’ negotiations all involved figures well above the price contained in the contract, and that the deal sheet reflected the true agreed-upon price. (February 26, 2019)

In Top On International Group Limited v. Iconix Brand Group, Inc., the New York Supreme Court, Appellate Division, 1st Department, addressed whether a settlement agreement superseded or terminated a surety agreement. The court concluded that the surety’s obligations under the surety agreement were not discharged by the subsequent settlement agreement, because the settlement agreement did not contain any clear expression of intention that it do so. The court noted that the merger clause in the settlement agreement made no reference to the surety or the surety agreement. (February 26, 2019)

In U.S. Bank National Association v. DLJ Mortgage Capital, Inc., the New York State Court of Appeals addressed the applicability of the “relation back doctrine.” The bank, as trustee, sought to sue a mortgage company for alleged violations regarding a loan. Although the action was time-barred, the trustee sought to relate the complaint back to a certificate holder’s previously filed action. The court held that the trustee’s claim was unpreserved and relation back did not apply, as there was no validly filed previous action since the certificate holder could not bring an action on behalf of the trustee. (February 19, 2019)

In Blue Sage Capital, L.P. v. Alfa Leval U.S. Holding, Inc., the Supreme Court of New York, Appellate Division, First Department, addressed the issue of whether the lower court correctly denied attorneys’ fees to the defendant. The court found that the lower court’s holding was correct because neither party had substantially prevailed on the central claims advanced and that therefore neither was entitled to attorneys’ fees. (January 31, 2019)

In Noble v. Kingsbrook Jewish Medical Center, the Supreme Court of New York, Appellate Division, Second Department, considered whether the denial of the defendant’s motion for summary judgment dismissing the complaint insofar as asserted against him was proper. The court disagreed with the lower court’s denial of the defendant’s motion because it found that the defendant established his prima facie entitlement to judgment as a matter of law. “To prevail on a motion for summary judgment in a medical malpractice action, a defendant must establish, prima facie, ‘either that there was no departure from accepted community standards of practice or that any departure was not a proximate cause of the plaintiff’s injuries.’” Here, the defendant made a prima facie showing that he did not depart from the accepted standard of care in his treatment of the plaintiff. (January 30, 2019)

In Tracey Mitchell v. Quincy Amusements, Inc.the Supreme Court of New York, Appellate Division, 2d Department, addressed the basis on which a jury trial verdict ought to be set aside. In the underlying case, the plaintiff slipped in a movie theater and sustained injuries, and the case went to trial. After the trial concluded, the jury rendered a verdict finding that the defendant was negligent, but that such negligence “was not a substantial factor in causing the plaintiff’s injuries.” The plaintiff immediately moved pursuant to CPLR 4404(a) to set aside the jury verdict as contrary to the weight of evidence at trial. The Second Department held that where, as here, the issues of negligence and proximate cause are “inextricably interwoven,” the finding that the defendant was negligent, but that the negligence did not cause the accident, “was not supported by a fair interpretation of the evidence.” Moreover, the defendant failed to submit evidence to refute any of the plaintiff’s evidence. The court ruled for the plaintiff and reversed the lower court’s decision on the CPLR 4404(a) motion. (January 23, 2019)

In All the Way Towing, LLC v. Bucks County International, Inc., the Supreme Court of New Jersey determined whether a commercial purchase of a defective custom-made tow truck and rig is covered under the New Jersey Consumer Financial Act (CFA) as a sale of merchandise. The court determined that such a purchase was covered as a sale of merchandise under the CFA. The key factor is that a member of the public could have made the same custom purchase. The CFA was meant to be liberally construed in order to serve its original remedial purpose and is applicable to certain commercial transactions, including custom-made goods. (January 24, 2019)

In Empire Loan of Stoughton, Inc. v. Stanley Convergent Security Solutions, Inc., the Appeals Court of Massachusetts addressed the enforceability of a forum selection clause requiring any suit to be brought in Hartford, Connecticut in a contract between two businesses in Massachusetts, neither of which had any Connecticut connection. The proponent of the forum selection clause met its burden of showing that the clause was reasonably communicated and accepted and that the opponent bore a substantial burden of showing that the enforcement of the forum selection clause would be unfair and unreasonable. Here, where the witnesses could be deposed in Massachusetts and the Connecticut forum could apply claims based in Massachusetts law, the business that opposed the forum selection clause did not meet its burden. (January 29, 2019)

In Buhannic v. Tradingscreen, Inc., the New York Supreme Court, Appellate Division, 1st Department, addressed whether a corporation’s chief executive officer and chairman of the board was entitled to advancement of expenses for litigation defense costs under an indemnification agreement entered into between him and the corporation. The court held that the executive was not entitled to indemnification because the underlying action sought to challenge conduct in his capacity as a shareholder, and not by any reason of his corporate status. (January 15, 2019)

In Reich v. Belnord Partners, LLC, the New York Supreme Court, Appellate Division, 1st Department, reaffirmed that fraud is the only exception to the four-year look back period for a claim for failure to charge legally stabilized rent. The court held that there was no basis for considering the subject apartment’s rental history more than four years before the commencement of the rent overcharge claim because there was no fraud and the landlord registered the rent with the Division of Housing & Community Renewal more than four years before the rent overcharge complaint was filed. (January 15, 2019)

In Finkleman v. National Football League, the Supreme Court of New Jersey addressed whether the NFL’s ticket policy for the 2014 Super Bowl constituted an unlawful withholding of tickets under the New Jersey Ticket Law, N.J.S.A. 56:8-35.1. The Act makes it unlawful for a “person” to withhold more than five percent of the tickets “released” to the general public. The NFL, according to their typical practice, only made one percent of the total tickets to the 2014 Super Bowl available to the general public, via a lottery, and the remaining ninety-nine percent of tickets went to corporations, sponsors, designated teams and individuals. The court found that the NFL was essentially acting like a broker or reseller and was therefore a “person” under the Ticket Law and subject to the five percent limitation for withholding tickets to the public. The court ultimately found that the NFL did not violate the Ticket Law because the one percent of tickets ascribed to the lottery system were the only tickets “released” to the public and the NFL took no action to withhold any of those tickets. (January 9, 2019)

In William Doyle Galleries, Inc. v. HSBC Bank USA, N.A., the New York Supreme Court, Appellate Division, 1st Department, addressed whether a seller stated a viable claim for aiding and abetting fraud and aiding and abetting conversion against a bank, which provided a false credit reference on behalf of the buyer. The court held that the seller adequately pled aiding and abetting fraud, rejecting the bank’s contention that its use of qualifying language precludes a finding of a misrepresentation of a present or existing fact. The court also held that the seller adequately pled aiding and abetting conversion, rejecting the bank’s argument that its letter was merely a business service performed for a client that fails to evince its actual knowledge or substantial assistance. (December 20, 2018)

In GEM Holdco, LLC v. RDX Technologies Corporation, the Supreme Court of New York, Appellate Division, 1st Department, considered whether a defendant waived a condition precedent to a settlement agreement when it began making installment payments to the plaintiff before the agreement was approved by a Canadian stock exchange as required by the settlement’s terms. The court held that the exchange-approval condition was waived because the defendant failed to act promptly to repudiate the agreement and accepted benefits from the settlement agreement. (December 13, 2018)

In Republic Realty Services, Inc. v. Kuafu Properties, LLC, the New York Supreme Court, Appellate Division, 1st Department, addressed, in part, whether a claim for breach of a confidentiality agreement was subject to dismissal. The court determined that the claim must be dismissed because a non-party to the contract failed to establish that it was the intended third-party beneficiary of that agreement and, absent such showing, there could be no privity of contract. (December 6, 2018)

In Zacharius v. Kensington Publication Company, the New York Supreme Court, Appellate Division, 1st Department, determined the reasonableness of attorneys’ fees and costs to be paid as sanctions for discovery abuses. The court found that the testimony of the attorneys who performed the services and invoiced the clients, describing in detail the services rendered, justified the award and it could not be shown that the time spent was duplicative or unreasonable. The court further held that the fact the special referee reduced some of the requested time undermined any claim that it was excessive. (December 6, 2018)

In Ferrara v. Peaches Café LLC, the New York Court of Appeals addressed whether consent for purposes of Lien Law § 3 may be inferred from the terms of a lease. Because the lease required the tenant to undertake electrical work to effectuate the purpose of the lease, but made clear that the owner was to retain close supervision over the work and authorized it to exercise direction over the work, the court concluded that the terms of the lease were sufficient to establish the owner’s consent under Lien Law § 3. (November 20, 2018)

In 106 Spring Street Owner LLC v. Workspace, Inc., the New York Supreme Court, Appellate Division, 1st Department, addressed whether a commercial tenant satisfied the curability requirement for a Yellowstone injunction which tolls the cure period pending resolution of the landlord-tenant dispute. The court held that the record contained no evidence to support a claim that the tenant’s alleged breaches of the lease were incurable. (November 20, 2018)

In Flanzman v. Jenny Craig, Inc., the Superior Court of New Jersey addressed whether an arbitration agreement was valid where it did not address the arbitration forum or any process for conducting the arbitration. The court found that the absence of such critical information meant that the parties had not reached a meeting of the minds as to the rights replacing one’s typical right to a jury trial. Consequently, there was no mutual assent, rendering the arbitration agreement unenforceable and invalid as a matter of law. (November 13, 2018)

In Ballantine v. Pine Plains Hose Company, Inc., the Supreme Court of New York, Appellate Division, 2d Department, addressed what type of evidence rebuts the requirement that a plaintiff serve a notice of claim on any public corporation “within 90 days after the claim arises.” In the underlying action, the plaintiff was injured and delivered to a hospital via an ambulance, where she allegedly received deficient care. The plaintiff filed suit against the hospital, but did not file a notice of claim even though the hospital was a public corporation. The lower court granted the plaintiff leave to serve a late notice of claim, and the hospital appealed. The Second Department found that where a plaintiff seeks leave to file a late notice of claim, the court should consider whether the public corporation acquired timely actual knowledge of the facts constituting the claim. The Second Department held that since the hospital was in possession of an ambulance call report and “malpractice is apparent from an independent review of the medical records, such records constitute actual knowledge of the facts" constituting the claim. (November 14, 2018)

In Ferro Fabricators, Inc. v. 1807-1811 Park Avenue Development Corporation, the New York Supreme Court, Appellate Division, 1st Department, considered whether a development company had satisfactorily established summary judgment on a claim for breach of a construction contract. The court determined that whether the plaintiff-fabricator was provided with a schedule of work and whether the fabricator complied with the schedule remained a question of fact and this was sufficient to defeat summary judgment. (October 25, 2018)

In Everest Reinsurance Company v. Galileo Weather Risk Management Advisors, LLC, the New York Supreme Court, Appellate Division, 1st Department, addressed whether an insurance company could recoup $330,000 in fees paid to a risk management company pursuant to an agreement between the parties with respect to future transactions. The court held that, because the agreement was silent on any duration of time that the risk management company was required to locate potential deals for the insurance company, an issue of fact exists as to whether the risk management company repudiated the agreement by selling its assets and rendering itself unable to locate potential deals. (October 18, 2018)

In Blackrock Balanced Capital Portfolio v. U.S. Bank National Association, the New York Supreme Court, Appellate Division, 1st Department, addressed whether a trustee breached its obligations pursuant to a Pooling and Service Agreement (PSA) by failing to provide notices to cure to servicers once it gained knowledge of certain servicing breaches and by failing to make prudent decisions concerning the events of default. With respect to certain trusts, the court held that the trustee had no obligation to send notices to cure because the PSAs did not require the trustee to send a notice to cure, but “merely designated it as one of the parties that is permitted to send such a notice.” With respect to other trusts, the court held that a viable breach of contract claim existed for the trustee’s failure to timely enforce the event of default. (October 18, 2018)

In Sauers v. Borough of Nesquehoning, the United States Court of Appeals for the Third Circuit determined that a police officer had qualified immunity where, at the time of the underlying car accident, it was not clearly established that the police officer’s conduct could give rise to constitutional liability. In doing so, the court determined that there is a specific constitutional right “to not be injured or killed as a result of a police officer’s reckless pursuit of an individual suspected of a summary traffic offense when there is no pending emergency and when the suspect is not actively fleeing the police.” The court stated that police officers now have fair warning that their conduct when engaged in a high-speed pursuit will be subject to the full body of state-created danger case law. (October 2, 2018)

In Trujillo v. Transperfect Global, Inc., the Supreme Court of New York, Appellate Division, 1st Department, addressed claims for breach of contract and intentional infliction of emotional distress regarding an alleged agreement as to stock value. In this action, an individual argued that he was entitled to an increase of stock value based upon a written contract. The court found the alleged contract unenforceable because the document was unsigned and contained only handwritten dollar amounts and calculations with no indication of their meaning or anyone’s consent to them. The court also dismissed claims for the intentional infliction of emotional distress as the allegations of wrongdoing did not pertain to conduct “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Instead, the allegations demonstrated only mere insults, indignities and annoyance. (September 25, 2018)

In Second Ave. 1355 Realty LLC v 1355 Second Owner LLC, the Supreme Court of New York, Appellate Division, 1st Department, addressed an alleged breach of contract between a buyer and seller of real estate. In this action, the buyer alleged that the seller breached an agreement for the purchase of a building by failing to deliver the building free of residential tenancies pursuant to the agreement. Although the seller conceded that it did not meet the condition precedent to deliver a vacant building, the seller maintained that the buyer waived the condition precedent. The court found that no waiver of the condition precedent occurred because the waiver was not expressly made in writing. In its decision the court further noted that communication between the parties did not address this waiver and instead discussed the seller’s efforts to fulfill the condition precedent. (September 25, 2018)

In In re Hertz Global Holdings Inc., the United State Court of Appeals for the Third Circuit addressed a union pension fund’s burden of proving scienter to state a claim under the Private Securities Litigation Reform Act of 1995 (PSLRA) in a putative securities fraud class action. The court held that the fund failed to provide a cogent and compelling explanation as to how the individual defendants could have known of the alleged serious accounting problems before actual discovery. (September 20, 2018)

In Franco Belli Plumbing and Heating and Sons, Inc. v. Dimino, the New York Supreme Court, Appellate Division, 2d Department, addressed whether a plumbing company’s claim that it was defamed in a letter to the New York City Department of Education (DOE) stating that gas pipe leaks were caused by substandard work was barred by the qualified common-interest privilege. The court held that the challenged statements were protected by the qualified common-interest privilege because the letter did not reference the plumbing company by name, the letter was written at the request of the DOE, and the plumbing company failed to demonstrate that the challenged statements were motivated solely by malice. (September 19, 2018)

In Miller v. HCP Trumpet Investments, LLC, the Supreme Court of Delaware addressed whether the implied covenant of good faith and fair dealing required a limited liability company to conduct a Revlon-type or “open-market” sale process before selling the company. The court held that the implied covenant could not be used to imply Revlon-type sale requirements in the operating agreement. (September 20, 2018)

In Gregg v. Ameriprise Financial, Inc., the Superior Court of Pennsylvania held that the Uniform Trade Practices and Consumer Protection Law’s catchall provision provides for a strict liability claim that does not require the establishment of either a negligent or fraudulent misrepresentation. Rather, a catchall claim requires proof of “any deceptive conduct…which created a likelihood of confusion or of misunderstanding” regardless of mental state. (September 12, 2018)

In Marcelli v. Lorraine Arms Apartments, LLC, et al., the New York Supreme Court, Appellate Division, 2d Department, addressed the basis upon which a court should accept a late answer from a defendant in a civil action. In the underlying case, the plaintiff sued the defendants after injuring herself on the defendants’ property. After the defendant failed to answer the complaint timely, the plaintiff moved for a default. Forty-two days after the defendants’ time to answer had expired, the defendants moved to compel the plaintiff to accept their late answer, and attached a copy of their answer as an exhibit. The lower court granted the defendants’ motion. On appeal, the Second Department affirmed the lower court’s holding citing: (1) the lack of prejudice to the plaintiff; (2) the lack of willfulness on the part of the defendants; (3) the existence of a potentially meritorious defense; and (4) the public policy favoring resolution of cases on the merits(September 12, 2018)

In Slabakis v. Schik, the New York Supreme Court, Appellate Division, 1st Department, addressed whether the complaint stated a cause of action for breach of a joint venture agreement. The court held that the complaint did not state a cause of action for breach of a joint venture agreement, because the party to the purported agreement failed to indicate the losses he would be jointly and severally liable for, and pointed to no provision in the alleged agreement for the sharing of any losses. According to the court, “there is nothing more than a conclusory allegation that any losses would be borne equally by the parties.” To the contrary, the court noted that the allegations in the complaint “clearly state that any prospective losses were intended to be paid solely from defendants’ share of the proceeds of the project.” (August 30, 2018)

In Margarella v. Ullian, the New York Supreme Court, Appellate Division, 2d Department, addressed whether parties to a “Building Loan Agreement” could collect on a promissory note and a personal guaranty of obligations under the note. The court held that the parties established their prima facie entitlement to judgment as a matter of law through their submission of the promissory note, which contained an unequivocal and unconditional obligation to pay, the guaranty, and evidence that the other party to the “Building Loan Agreement” failed to make payment in accordance with the terms of those instruments. The court noted that the promissory note was not “inextricably intertwined” with certain other allegedly related agreements the parties entered into, such that any breach of the allegedly related agreements by the other parties could not create a defense to payment on the promissory note, or relieve the other party of its obligation under the guaranty. (August 29, 2018)

In Bank of New York Mellon v. Aiello, the New York Supreme Court, Appellate Division, 2d Department, addressed whether there was sufficient standing to commence a foreclosure action. The court held that evidence of the mortgage, unpaid note and evidence of default, as well as evidence showing entitlement to relief was sufficient prima facie proof that one had standing to commence a foreclosure action. The court also held that general denials in opposition would be insufficient to defeat such prima facie proof. (August 15, 2018)

In Bill Birds, Inc. v. Stein Law Firm, P.C., the New York Supreme Court, Appellate Division, 2d Department, addressed whether a cause of action for legal malpractice was duplicative of a claim for violation of Judiciary Law § 487. The court found that the two causes of action were not duplicative because a violation of Judiciary Law § 487 required an intent to deceive, whereas legal malpractice claim is based on negligent conduct. The court also determined that a chronic extreme pattern of legal delinquency did not establish an intent to deceive under Judiciary Law § 487. (August 15, 2018)

In Long Island Minimally Invasive Surgery v. St. John’s Episcopal Hospital, the New York Supreme Court, Appellate Division, 2d Department, addressed the enforceability of a restrictive covenant in an employment contract. The court found that the covenant, which essentially prohibited the former employee from practicing his choice of medicine in the New York metropolitan area for two years, was unreasonable in time and area and unreasonably burdensome to the employee. (August 8, 2018) 

In Phone Recovery Services, LLC v. Verizon of New England, Inc., the Supreme Judicial Court of Massachusetts addressed whether a corporation had standing to bring a qui tam action on behalf of the Commonwealth for Verizon’s failure to collect a surcharge for 911 emergency telephone services as required by Massachusetts General Laws c. 6A, § 18H. Holding that a corporation does not have standing to bring a suit under § 18H, the court explained that the act identifies a “relator” as an “individual” which it deemed to be a natural person. (August 7, 2018)

In Vicchiarelli v. Cold Spring Hills Realty Company., LLC, the New York Supreme Court, Appellate Division, 2d Department, addressed the issue of whether an out-of-possession landlord may be liable for injuries that occur on its premises. An out-of-possession landlord is not liable unless the landlord retained control over the premises and has a duty imposed by statute, assumed by contract, or assumed by course of conduct. The landlord was not liable because it was not contractually responsible for maintenance and the landlord demonstrated that the lessee performed all maintenance on the premises. (August 1, 2018)

In Stavola v. Bodd, the New York Supreme Court, Appellate Division, 2d Department, addressed a motion to compel the plaintiff to accept the defendant’s late-served answer. The court granted the motion since the defendant’s delay was brief and he demonstrated a potentially meritorious defense. (August 1, 2018)

In Spitzer v. Newman, the New York Supreme Court, Appellate Division, 2d Department, addressed whether a legal malpractice action brought by an attorney’s former client against the attorney was barred by the three-year statute of limitations. In support of the motion to dismiss, the attorney argued that because his representation of the former client ended in 2009, the statute of limitations expired in 2012, which was before the legal malpractice action was commenced in 2015. However, because the court found that the client raised an issue of fact as to whether the continuous representation doctrine tolled the statute of limitations, the court denied the attorney’s motion to dismiss. (July 25, 2018)

In Stone v. Bloomberg L.P., the New York Supreme Court, Appellate Division, 2d Department addressed whether the former director of a defunct Hong Kong investment company sufficiently pled a cause of action for defamation against Bloomberg L.P. based on the former director’s allegation that Bloomberg published a false and defamatory article portraying the former director as a con artist who preyed off his friends to run an investment scam before vanishing from Hong Kong, and who also stole hundreds of thousands of dollars of family belongings from his elderly father. In rejecting Bloomberg’s argument that the challenged statements were privileged because the article was a fair and true report of two police investigations of the former director, the court held that, when viewed in context, it could not be said that the challenged statements provided a substantially accurate report of the two police investigations. In addition, the court held that the former director adequately alleged the elements of a cause of action for defamation, including the element of gross irresponsibility. (July 25, 2018)

In Dominguez v. Yahoo, Inc., the United States Court of Appeals for the Third Circuit considered whether Yahoo’s practice of sending automated text messages to a cellular phone number formerly associated with a Yahoo email address violated the Telephone Consumer Protection Act (TCPA). By its terms, the TCPA prohibits sending a non-emergency call or text message to a cellular phone number using an “automatic telephone dialing system.” While the case was pending, the Federal Communications Commission (FCC) issued a declaratory order concluding that if the device used to make calls or send text messages had the potential capacity to store or produce random telephone numbers, such calls or text messages violated the TCPA. However, because the United States District Court of Appeals for the District of Columbia thereafter vacated the FCC’s declaratory order as unreasonable and overbroad, the court held in this case that the class plaintiffs were required to prove that Yahoo actually used autodialers to send the text messages in question and could not rely on evidence that the equipment merely had autodialing capability. (June 26, 2018)

In 936 Coogan’s Bluff, Inc. v. 936-938 Cliffcrest Housing Development Fund Corporation, the New York Supreme Court, Appellate Division, 1st Department, addressed whether building residents’ claims for fraud and conspiracy to commit fraud were sufficiently detailed. The residents alleged that the management company and the Department of Housing Preservation and Development conspired together to induce the building residents to purchase units by making knowingly false representations about their intention to complete renovations and that the residents relied on these representations. In support of the fraud allegations, it was alleged that the renovation work was contracted to a defunct entity, that the management company and the Department of Housing Preservation diverted funds given to them by the residents, and that the residents were left with defective homes and an uninhabitable building. The court held that these allegations were sufficiently detailed to state causes of action for fraud and conspiracy to commit fraud(June 12, 2018)

In Quail v. ShopRite, the Superior Court of New Jersey, Appellate Division, addressed whether a death certificate was admissible as proof of causation and as a substitute for expert testimony in a wrongful death case. The court held that the death certificate contained inadmissible hearsay, despite the hearsay exception for vital statistics. The court further held that expert testimony was required on cause of death and declined to grant an extension to provide the same. (June 4, 2018)

In Rice v. Miller, the Superior Court of New Jersey, Appellate Division, addressed whether the trial judge could take judicial notice of the asserted legality of a pedestrian crossing the road outside of a crosswalk. The court held that this inquiry was a fact-dependent jury issue, turning on the actual proximity of the crosswalk, the lighting conditions and whether it was too dangerous to reach from the plaintiff's location. Additionally, the court held that an investigating police officer who was not been identified as an expert could not testify as to the speed of the vehicle under the guise of lay opinion testimony. (June 5, 2018)

In McIlmail v. Archdiocese of Philadelphia, the Superior Court of Pennsylvania addressed whether the notes and memoranda of witness interviews conducted by a private investigator acting at the express direction of counsel are protected by the work-product doctrine, as defined in Pennsylvania Rule of Civil Procedure No. 4003.3, to the same extent as if the interviews were conducted by counsel. The Archdiocese argued that because its defense counsel hired the investigator to conduct the interviews, it should be entitled to the broader protection of the doctrine applicable to attorneys under Rule 4003.3. The court disagreed, reasoning that Rule 4003.3 contains a clear distinction between work-product of an attorney, with that of a non-attorney representative and the interpretation of the Rule 4003.3 proposed by the Archdiocese impermissibly blurs that distinction. Accordingly, the court refused to extend the broader protections afforded to attorneys' work product to notes memorializing the statements of witnesses taken by an investigator acting as a mere agent of the client or of the attorney. (June 7, 2018)

In Murphy v. National Collegiate Athletic Association, the United States Supreme Court struck down the Professional and Amateur Sports Protection Act (PAPSA), which prohibited states from authorizing sports gambling schemes. The Court held that the PAPSA violated the anti-commandeering rule under the Tenth Amendment because the PAPSA's anti-authorization provisions dictated what the state legislature may and may not do. Additionally, the Court held that PAPSA was not a valid preemption provision because it did not regulate private actors. Therefore, the Court held that while Congress could regulate sports gambling directly, it cannot indirectly regulate sports gambling by regulating state government's regulations of their citizens. (May 14, 2018)

In Scheeler v. Atlantic County Municipal Joint Insurance Fund, the Superior Court of New Jersey, Appellate Division, addressed whether someone who is not a resident or domiciliary of New Jersey has standing to file a request for public records under the Open Public Records Act (OPRA). The court found that the legislature’s general intent was to make New Jersey government records open to the public at large, rather than limiting access to New Jersey citizens only. (May 16, 2018)

In A.L. Prime Energy Consultant, Inc. v. Massachusetts Bay Transportation Authority, the Supreme Judicial Court of Massachusetts addressed the construction of a termination for convenience clause, which permitted the public entity to cancel a procurement contract without breaching the contract. Holding that the Massachusetts Bay Transportation Authority could terminate without breaching the contract, the court reasoned that the contract expressly provided the Massachusetts Bay Transportation Authority with the ability to terminate “for any reason.” It further explained that this provision did not make the contract illusory because the Massachusetts Bay Transportation Authority provided valuable consideration and had additional restrictions placed on its ability to terminate the contract. (May 2, 2018)

In Axia Netmedia Corp. v. Massachusetts Technology Park Corporation, the United States Court of Appeals for the First Circuit ruled that a network’s owner could compel the network’s operator to continue to provide services it had agreed to provide while the parties arbitrated a dispute about the adequacy of the network services. In affirming the owner’s request for injunctive relief, the court found that the proper inquiry was whether the owner was likely to succeed in its argument that the operator must continue to provide services during the dispute resolution process, not the likely outcome of the underlying arbitration(April 25, 2018)

In Age Group, Ltd. v. Martha Stewart Living Omnimedia, Inc., the New York Supreme Court, Appellate Division, 1st Department, addressed whether a manufacturer could recover lost profits in connection with its breach of contract claim against a merchandising company. The court held that the manufacturer could recover lost profits because the manufacturer submitted evidence supporting its claim that its damages were caused by the merchandising company’s alleged breach of the parties’ contract, are capable of proof with reasonable certainty, and were fairly within the contemplation of the parties at the time the contract was made. The court also held that issues of fact existed as to whether the merchandising company breached the agreement by saying that it would not approve any new designs. The court noted that while the merchandising company was permitted to refuse any design on subjective grounds such as personal taste and sensibilities, it was nevertheless obligated to exercise its refusal in good faith, based on dissatisfaction genuinely and honestly arrived at. (April 12, 2018)

In  Hiam v. Homeaway.com, Inc., the United States Court of Appeals for the First Circuit held that a website that hosted vacation rentals offered by third-parties (VRBO.com) was not liable under the Massachusetts Consumer Protection Act to a would-be renter who had been scammed by a purported third-party vacation property offeror. The Court rejected the renter’s argument that the word “guarantee” in the website’s “Basic Rental Guarantee” should be construed as a representation or warranty by the website to its users that it had engaged in pre-screening or verification of the listings on the website. The court also held that the renter’s claims were barred by the Communications Decency Act, which immunizes websites from liability for content posted by third-parties, because he was unable to show that his claims were based on the website’s own actions and representations as opposed to just the actions of the scammer who posted the fake rental. (April 12, 2018)

In Anderson v. K. Hovnanian at Port Imperial Urban Renewal II, LLC, the Superior Court of New Jersey addressed (1) whether plaintiff should have been permitted to amend her complaint for the third time at the eve of the discovery end date; (2) whether plaintiff should have been permitted to introduce three late expert reports which were produced over a month after the court ordered deadline; and (3) whether summary judgment was proper where plaintiff could not prove any of her allegations without expert testimony. First, the court held that defendants would be prejudiced if another amendment were permitted at this late stage in the proceedings because the amendment would require additional discovery, depositions and expert review. Second, the court found that plaintiff’s late expert reports were properly excluded from trial because plaintiff failed to show any exceptional circumstances excusing the late submission of the expert reports. Finally, summary judgment was proper because plaintiff failed to produce the requisite expert testimony to prove the existence of a defect in the HVAC system, and damages, in support of her claims. (April 11, 2018)

In Morris v. T.D. Bank, the Superior Court of New Jersey, Appellate Division, considered whether a bank was liable for emotional distress a bank customer experienced as a result of being misidentified as the perpetrator of a bank robbery. The court held that, under the circumstances, the bank did not owe the customer a duty with respect to the criminal conduct of a third party nor could it be held liable for allegedly breaching its own policy against calling the police until after the actual perpetrator left the premises because a defendant’s internal policies, standing alone, cannot demonstrate an applicable standard of care. The fact that the customer believed he was wrongly identified as the perpetrator was insufficient to impose liability – there is no tort of “negligent misidentification” under New Jersey law(April 10, 2018)

In Veneto Hotel & Casino, S.A. v. German American Capital Corporation, the New York Supreme Court, Appellate Division, 1st Department, addressed whether the lender was obligated to pay for the borrower’s operating expenses following an “Event of Default” under the provisions of their loan agreement. In finding that the lender did not breach the loan agreement, the court explained that the lender had sole and absolute discretion regarding whether it would pay for the borrower’s operating expenses following an “Event of Default.” In addition, the court found that the borrower’s breach of the implied covenant of good faith and fair dealing claim cannot negate express provisions of the loan agreement and it is not violated where the contract terms afford a party the right to exercise its absolute discretion. (April 5, 2018)

In In re Petition of Frescati Shipping Company, Ltd., the United States Court of Appeals for the Third Circuit addressed the apportionment of clean-up costs stemming from an oil spill caused by an abandoned anchor on a riverbed. The court determined that the customer of the intended delivery was liable to the ship owner in contract, but not in negligence. The court further found that the United States, which reimbursed the ship owner for a portion of the costs, was entitled to full recovery as subrogee to the shipping company. In so finding, the court clarified that the customer could not bring defenses against the United States that could not be brought against the shipping company. (March 29, 2018)

In City Select Auto Sales, Inc. v. David Randall Associates, the United States Court of Appeals for the Third Circuit considered whether Congress and the FCC, by making it unlawful for any person to send an unsolicited advertisement by facsimile under the Telephone Consumer Protection Act (TCPA), intended to impose personal liability on corporate officers acting on the corporation's behalf. Although the court was skeptical that personal-participation liability was intended, the court declined to decide such an important question when it was neither litigated nor fully briefed and argued on appeal. Therefore, the court proceeded to rule that the jury instruction requiring a significant level of personal involvement in the unlawful fax transmissions did not misstate the applicable law. (March 16, 2017)

In Ismail v. Volvo Group North America, LLC, the Superior Court of Pennsylvania addressed whether the court had personal jurisdiction over defendant, Volvo, where Volvo was the sole member LLC and its sole member was a citizen of Pennsylvania. The court held that, in order for a limited liability company to be subject to personal jurisdiction based on its members’ contacts with the forum, a plaintiff must present sufficient evidence to merit disregarding the corporate form and treating the LLC and its members as one. (March 2, 2018)

In Driscoll v. Arena, the Superior Court of Pennsylvania held that a paragraph in a promissory note stating that the parties intend the note to be a sealed instrument does not alone create an instrument under seal. Therefore, the extended statute of limitations for instruments in writing under seal did not apply. The court also held that a void confession of judgment can be stricken at any time, even years beyond the thirty-day period to file a petition to strike or open. (February 12, 2018)

In Wells Fargo Bank, N.A. v. Joseph, the Superior Court of Pennsylvania addressed whether a bank could receive summary judgment in a foreclosure accident by relying on a testimonial affidavit of a bank officer in violation of Nanty-Glo v. American Surety Company, 163 A. 523 (Pa. 1932) (prohibiting summary judgment based solely on the moving party’s oral testimony). The court held that Nanty-Glo was inapplicable as (i) the bank did not seek summary judgment based upon the affidavit alone; it also submitted a loan report demonstrating homeowner’s default; and (ii) the bank supported its motion for summary judgment with admissions from homeowner. (February 13, 2018)

In Mu v. Omni Hotels Management Corporation, the First Circuit Court of Appeals held that a hotel could be held liable for failing to aid a patron under a “sequence of events” theory of foreseeability. There, the patron observed a group of rowdy individuals, who had been previously evicted from the hotel, obtained alcohol, and returned to the hotel premises, fighting with each other and harassing passersby on the hotel premises. The patron asked the hotel staff to call the police. The hotel staff failed to do so, and the rowdy individuals attacked the patron, causing bodily injury. The court held that the sequence of events unfolded in such a way as to make the harm to the patron foreseeable, and therefore conferred a legal duty on the hotel. (February 7, 2018)

In D. Penguin Brothers Ltd. v. City National Bank, the New York Supreme Court, Appellate Division, 1st Department, addressed whether a company’s fraud and conversion claims were time-barred by the statute of limitations for fraud which is the greater of six years from the date the cause of action accrued and two years from the time the fraud could have been discovered. In holding that the company’s claims were not time-barred, the court rejected the argument that the company could have discovered the fraud earlier given the alleged pattern of forging documents. (February 1, 2018)

In Springut Law PC v. Rates Technology Inc., the New York Supreme Court, Appellate Division, 1st Department, addressed whether a law firm stated claims for fraud and piercing the corporate veil against its former client for failure to pay the law firm’s legal fees where the law firm alleged that the former client fraudulently maintained one of its entities judgment-proof to avoid payment of legal fees. The court held that the law firm’s nonspecific and conclusory allegations were insufficient to pierce the corporate veil and the fraud allegation related to a breach of contract and, therefore, was duplicative of the breach of contract claim. (January 30, 2018)

In Schulhof v. Jacobs, the New York Supreme Court, Appellate Division, 1st Department, addressed whether the Dead Man’s Statute precluded the decedent’s agent’s testimony regarding conversations with the decedent about an oral agreement. The court held that the Dead Man’s Statute did not preclude the agent’s testimony, but that the parol evidence rule, coupled with a written agreement entered into between the parties, precluded the agent’s testimony that the agent reached an oral agreement with the decedent that preceded and differed from a written agreement. (January 30, 2018)

In Rosenfeld Consulting, LLC v. OmniVere, LLC, the New York Supreme Court, Appellate Division, 1st Department, addressed the pleading of fraud in the context of an oral contract while lacking the intent to perform. The court held that mere general allegations that a party entered into an oral contract failed to establish a clear and unambiguous promise to demonstrate fraud. (January 25, 2018)

In Re:Source New Jersey, Inc., the New York Supreme Court, Appellate Division, 1st Department, considered denial of a petition to permanently stay arbitration based on allegations that there were inherent inconsistencies in the printed riders/exhibits accompanying the parties’ subcontract, rendering the binding arbitration clause moot. The court upheld the lower court’s decision, finding that the subcontract unambiguously established parties’ intent to enter binding dispute resolution and this would take precedence over any purported inconsistencies in the printed riders/exhibits. (January 25, 2018)

In Saint Annes Development Company v. Russ, the New York Supreme Court, Appellate Division, 2d Department, considered the defendant’s motion to compel the production of attorney-client privileged communications on the grounds that presence of a third-party waived the privilege. The court upheld the trial court’s denial of the defendant’s motion, finding that common-interest privilege was an exception to the general rule governing waiver when, as here, the privileged communication was for the purpose of furthering a legal, as opposed to a commercial, interest common to the client and the third-party. (January 24, 2018)

In Shapiro v. Eltman, Eltman & Cooper, P.C., the Supreme Court of New York, Appellate Division, 2d Department, considered whether “part performance” removes a contract from the Statute of Frauds. The court held that “the exception to the statute of frauds for part performance has not been extended to General Obligations Law § 5-701” and thus, the Statute of Frauds was applicable. (January 17, 2018)

In Latner v. Mount Sinai Health System, Inc., the United States Court of Appeals for the Second Circuit addressed whether a flu shot reminder text message sent by a hospital violated the Telephone Consumer Protection Act (TCPA). The court held that the text message fell within the scope of the plaintiff’s prior express consent – an affirmative defense to liability under the TCPA – because the plaintiff gave his cell phone number when he first visited the hospital and also signed a consent form agreeing that the hospital could use his information to recommend possible treatment alternatives or health-related benefits and services. (January 9, 2018)

In Rutyna v. Schweers, the Superior Court of Pennsylvania determined that the trial court abused its discretion in denying the plaintiffs' continuance request in a legal malpractice claim. Plaintiffs requested a continuance of the underlying medical malpractice case after they discovered that their expert witness signed a consent judgment in another case and agreed to not testify against the medical care provider at issue. The court held that the continuance should have been granted under the totality of the circumstances since plaintiffs were not at fault for their witness's preclusion from testifying, the case was complex, an additional seven months would have been negligible to this already protracted case, and the denial caused irreversible prejudice to plaintiffs. (January 4, 2018)

In Finkelman v. National Football League, the United States Court of Appeals for the Third Circuit considered whether a New Jersey resident who purchased Super Bowl tickets from a secondary market at more than double the face value had standing to file suit against the National Football League (NFL) under the New Jersey Ticket Law where the NFL withheld almost 99% of Super Bowl tickets from the general public. Because the New Jersey resident added claims regarding the functioning of the NFL’s secondary ticket market and how the NFL’s actions raised ticket prices in the secondary market, the court held that the New Jersey resident has standing to bring the action against the NFL. (December 15, 2017)

In Dunbar Asphalt Products, Inc. v. GEM Building Contractors and Developers, Inc., the Superior Court of Pennsylvania addressed whether an oral or an unsigned written contract controlled a construction agreement. The court held that the parties did not agree to be bound by the unsigned written document where the subcontractor’s attorney agreed to the scope of the work in the written contract but expressly rejected the remaining terms of the unsigned agreement. In finding the oral agreement valid and controlling, the court concluded that it was within the trial court’s discretion to examine surrounding documentary and testimonial evidence and the course of dealing between the parties in order to ascertain the parties’ intent. (December 4, 2017)

In Queens Branch of the Bhuvaneshwar Mandir, Inc, v. Sherman, the Supreme Court of New York, Appellate Division, 2d Department,addressed whether the First Amendment of the New York State Constitution forbids a court from resolving an election dispute in a religious corporation. The court found that civil disputes involving religious parties or institutions may be adjudicated without offending the First Amendment so long as neutral principles of law are the basis for their resolution. Accordingly, the court held that resolution of a dispute involving the determination of whether any votes were cast by any individuals who were not eligible to vote in a religious corporation’s election does not “require intrusion into constitutionally protected ecclesiastical matters.” (December 6, 2017)

In Citicorp Trust Bank, FSB v. Vidaurre, the New York Supreme Court, Appellate Division, 2d Department, addressed a plaintiff’s motion for an award of attorney’s fees. Generally, an award for attorney’s fees pursuant to a contractual provision may only be enforced to the extent reasonable and warranted for the services rendered. The Court denied the plaintiff’s motion because the affirmation of services rendered by the plaintiff’s counsel did not set forth counsel’s “experience, ability, and reputation, and failed to detail the prevailing hourly rate for similar work in the community.” (November 22, 2017)

In Patterson v. Shelton, a case involving the misappropriation of funds from a church, the Commonwealth Court of Pennsylvania held that the trial court’s prior rulings in the case were voided by its subsequent holding that the Deference Rule prohibited it from exercising subject matter jurisdiction because the case would require decisions on ecclesiastical questions. In particular, the trial court lacked jurisdiction when it previously voided the judgment from the parties’ binding arbitration. (November 29, 2017)

In Granta v. Broderick, the Supreme Court of New Jersey held that an attorney’s pledge of anticipated attorneys’ fees can be considered an account receivable and be secured under Article 9 of the Uniform Commercial Code. Therefore, an attorney’s creditors can perfect a secured lien on the anticipated proceeds from a contingent legal fee agreement. (November 14, 2017)

In Waldron Electric Heating and Cooling, Inc. v. Caseber, the Superior Court of Pennsylvania held that a contractor could recover the value of services rendered under a home improvement contract that was canceled after the work was performed but within the 3 day cancellation period expressly incorporated into every Pennsylvania home improvement contract by Section 517.7 of the Home Improvement Consumer Protection Act. (November 14, 2017)

In Bank of America, N.A. v. Brannon, the New York Supreme Court, Appellate Division, 1st Department, considered whether the failings in supporting affidavits to a motion for summary judgment affect the viability of the action as a whole or simply the ability of the court to grant the motion. The Court held that substitution, nunc pro tunc, of newly-signed affidavits in a mortgage foreclosure action to comply with Administrative Order 431/11 would be permitted. The Court further held that flaws in the notarization of an affidavit are not fatal unless the party can demonstrate that a substantial right has been prejudiced. (October 31, 2017)

In Insurance Brokers West, Inc. v. Liquid Outcome LLC, the United States Court of Appeals for the First Circuit addressed whether an insurance agency’s breach of contract claim against a marketing firm hired to design its website amounted to claims in excess of the $75,000 amount-in-controversy requirement for federal court diversity jurisdiction. The agency calculated $140,000 in damages based on fees paid under an original contract and additional fees paid pursuant to an amendment to the contract. The marketing firm, however, noted that the amendment contained a release of all prior claims, limiting the damages to those occurring after the amendment. The court agreed that the release in the amendment was unambiguous, and thus that the damages did not risk to the jurisdictional amount and there was no jurisdiction. (October 23, 2017)

In Tucciarone v. Hamlet on Olde Oyster Bay Homeowners Association, Inc., the New York Supreme Court, Appellate Division, 2d Department, addressed whether homeowners adequately pleaded causes of action for breach of contract and breach of fiduciary duty against their homeowners association and board of directors, in connection with remediation of a bamboo infestation at the property. The court held that the homeowners association was authorized to impose fines upon the homeowners in connection with the bamboo infestation rather than exercise its discretionary authority to remediate the problem itself and that the individual defendants did not commit any tortious acts outside the scope of their authority as board members. (October 18, 2017)

In Valspar Corporation v. E. I. DuPont De Nemours and Company, the United States Court of Appeals for the Third Circuit addressed whether evidence of parallel price increases is sufficient to raise an inference of a price fixing conspiracy under the Sherman Act. The court held that, in a market that is an oligopoly, such price increases may arise from conscious parallelism and do not create an inference of conspiracy(October 2, 2017)

In Hawkins v. Brant Quick and Florida Coach, Inc., the Superior Court of New Jersey, Appellate Division, affirmed in part and reversed in part the decision of a trial court to grant a defendant’s motion to dismiss plaintiff’s complaint in lieu of an answer. Plaintiff, a resident of New Jersey, had been a passenger on a bus driven by defendant Brant Quick and owned by Florida Coach, Inc. Plaintiff had been injured following a bus crash into a bridge underpass. The court disagreed with plaintiff’s argument that the judge should have permitted jurisdictional discovery before dismissing the complaint, but agreed that it was error to dismiss the complaint with prejudice. (September 22, 2017)

In Banks v. Cooper, the Superior Court of Pennsylvania addressed the standard for evaluating an excuse proffered by a party who fails to appear at trial and seeks to open a resultant judgment of non pros. In such instances, a trial court should consider various factors, including whether the failure to appear was inadvertent or part of a pattern of misbehavior, whether the court attempted to contact the party’s counsel prior to dismissal, and whether lesser sanctions might be appropriate. Because the trial court in this matter failed to consider those factors, it abused its discretion. (September 26, 2017)

In Ewing v. Potkul, the Commonwealth Court of Pennsylvania addressed the scope of recovery available in the wrongful death action of decedent’s mother and children against a Commonwealth agency for the death of a vehicle’s passenger in a collision that was allegedly caused by an icy roadway. While the Sovereign Immunity Act permits recovery for a “loss of earnings and earning capacity,” the court held that services and financial support are more accurately a “loss of support” which was not authorized by the Act. Additionally, the court held that loss of services and financial support were not recoverable as “property losses” under the Act merely because they could be assigned an economic value. The court held that the Sovereign Immunity Act bars a parent or child of decedent from recovering damages for the loss of decedent’s future services and financial support in a wrongful death action. (September 27, 2017)

In Greenberg v. Spitzer, the New York Supreme Court, Appellate Division, 2d Department, addressed whether former New York Attorney General (NYAG) defamed the former chairman and chief executive officer (CEO) of American International Group, Inc. when the former NYAG made public statements that the former CEO was guilty of fraudulent accounting practices. The court held that the public statements were actionable because they were made with actual malice to discredit the former CEO and damage his reputation and career while bolstering the former NYAG’s own reputation and career. In addition, the court held that because the former NYAG’s office brought the lawsuit against the former CEO, a listener of the statements made by the former NYAG would have been more likely to take the statements as fact rather than expressions of opinion. (September 13, 2017)

In Port Authority of Allegheny County v. Towne, the Commonwealth Court of Pennsylvania addressed whether the Port of Authority of Allegheny County was exempt under the Right-to-Know Law (RTKL) from producing video recordings from cameras aboard an identified bus on a specific date. The court held that such recordings were exempt from production under Section 708(b)(17) of the RTKL (the noncriminal investigation exception to public disclosure of records) because records that are created before an investigation and only when an incident, claim or accident is reported, can constitute an investigative record, especially when their only purpose is for use in investigations. (September 12, 2017)

In J.P. v. Department of Human Services, the Commonwealth Court of Pennsylvania addressed the issue of whether an appeal of an indicated report of student abuse to the Childline and Abuse Registry was properly dismissed as untimely. The court held that the petitioner’s appeal was improperly dismissed because he had been deprived of his constitutional due process rights when the Department of Human Services failed to afford him any form of hearing with respect to the placement of his name on the Childline and Abuse Registry. As such, the petitioner was entitled to a hearing on the merits of his appeal. (September 12, 2017)

In Valente v. TD Bank, the Appeals Court of Massachusetts addressed whether Mass. Gen. Laws c. 106, § 4-406 provides an absolute one-year limitation in which a customer must give notice of an unauthorized payment to her bank in order to bring a negligence action against the bank for honoring an unauthorized check. Finding that actual notice is required, the court held that the plaintiff did not provide notice of the unauthorized withdrawals on her account to the bank within the one-year period set forth in § 4-406. (August 30, 2017)

In Hanaway v. The Parkesburg Group, LP, the Supreme Court of Pennsylvania addressed whether the implied covenant of good faith and fair dealing applies to all limited partnership agreements formed in Pennsylvania. The court held that implied covenants of good faith and fair dealing are inapplicable to limited partnership agreements formed prior to Act 170, requiring partners to discharge their duties consistent with the contractual obligation of good faith and fair dealing. (August 22, 2017)

In Jones v. Board of Directors of Valor Credit Union, the Superior Court of Pennsylvania addressed whether a federal credit union member had standing to bring a derivative action against its board. The court held that the member lacked standing as the Federal Credit Union Act does not expressly confer standing upon a federal credit union member to bring a derivative action on behalf of a credit union. (August 21, 2017)

In Zelby Holdings, Inc. v. Videogenix, Inc., the Appeals Court of Massachusetts addressed whether the partial payment rule, which tolls the applicable statute of limitations by making a partial payment on a debt, applies to actions to collect under a promissory note. The court held that the partial payment rule does apply, and therefore the case was not barred by the applicable six-year statute of limitations. (August 18, 2017)

In General Motors, LLC v. Bureau of Professional and Occupational Affairs, the Commonwealth Court of Pennsylvania considered whether the Board of Vehicles Act places limits on the ability of automobile manufacturers and dealers to contract. The court held that the Act merely provides a safeguard for dealers that are dissatisfied with the warranty reimbursement available to them under their contracts with manufacturers by providing a minimum statutory level of reimbursement. It does not preclude manufacturers and dealers from contractually agreeing to any particular arrangement for warranty reimbursement. (August 16, 2017)

In Boris Feldshteyn v. Brighton Beach 2012, LLC, the New York Supreme Court, Appellate Division, 2d Department, addressed the types of documents qualifying as “documentary evidence” sufficient to support a defendant’s motion to dismiss pursuant to CPLR § 3211(a)(1). Finding that such a motion may only be granted where the “documentary evidence utterly refutes the plaintiff’s factual allegations” and that, accordingly, “documentary evidence . . . must be unambiguous, authentic, and undeniable,” the court held that judicial records, mortgages, deeds, and contracts were sufficiently undeniable, but that letters, affidavits, and deposition testimony were not. (August 16, 2017)

In Gerson Berman-Rey v. Sigifredo Gomez, the New York Supreme Court, Appellate Division, 2d Department, addressed whether a defendant property owner had met his burden on summary judgment in which he sought to dismiss an injured construction worker’s claim pursuant to Labor Law § 200. Explaining that a property owner’s liability under Labor Law § 200 “rests upon whether the property owner created the condition, or had actual or constructive notice of it and a reasonable amount of time within which to correct the condition,” the court denied the property owner’s motion on the grounds that evidentiary submissions had failed to eliminate triable issues of fact regarding whether the property owner created or otherwise had notice of the condition. (August 16, 2017)

In Energy Express, Inc. v. Department of Public Utilities, the Supreme Judicial Court of Massachusetts addressed whether a local distribution company’s assignment of capacity along interstate gas pipelines to private companies that supply natural gas resulted in the private company becoming a customer of the local distribution company, such that the private company was entitled to a refund under Massachusetts law. Holding that only an end customer, not a private supply company, is a customer under the statute, the court explained that the Department of Public Utilities’ interpretation of the term “customer” and the legislative history of the statute require a customer to have purchased the gas for its own use. Since the private company had purchased the gas for resale to end consumers, it was not a customer under the statute. (August 3, 2017)

In Rodriguez v. Massachusetts Bay Transportation Authority (MBTA), the Appeals Court of Massachusetts addressed whether the MBTA breached its contract with commuter rail services when its service schedule was interrupted by severe winter storms. Holding that no breach of contract occurred, the court explained that the MBTA’s alleged implied contract to provide timely, reliable service was too indefinite to create an enforceable contract. (July 31, 2017)

In Landmark Ventures, Inc., v. H5 Technologies, Inc.the Supreme Court of New York, Appellate Division, 2d Department, addressed whether and to what extent a court should use outside technical terms to interpret a provision for sales fees within a consulting contract. The court held that the outside definition of terms such as “generally accepted accounting principles” and “revenues realized” were properly relied upon to determine the parties’ intent within the contract. Furthermore, the court held that it should not seek an interpretation of any contract which would render any term of the contract meaningless or superfluous. (July 19, 2017)

In Rubin v. CBS Broadcasting Inc., the Superior Court of Pennsylvania held that a school police officer’s claims against CBS 3 Philadelphia (Eyewitness News) for defamation and false light invasion of privacy survived CBS’s motion for judgment on the pleadings. In doing so, the court examined the elements of falsity and fault in a defamation claim. (July 17, 2017)

In Bradshaw v. PEL 300 Associates, the Supreme Court of New York, Appellate Division, 2d Department, addressed what level of evidence was sufficient to establish the so-called “storm in progress rule.” Under the rule, a property owner will not be held responsible for accidents occurring as a result of snow accumulation until an adequate time has passed, allowing the owner to ameliorate the hazards caused by the storm. The court held that deposition testimony from the property owners, corroborated by certified weather reports demonstrating that there was a storm in progress at the time of plaintiff’s accident, was sufficient to establish a prima facie entitlement to judgment as a matter of law on the issue. (July 19, 2017)

In Delos Megacore Ltd. v. Omega Investments Ltd., the New York Supreme Court, Appellate Division, 1st Department, considered whether an action to recover on a promissory note was properly stayed pursuant to CPLR 2201 pending an arbitration before a foreign arbitration tribunal. The court held that the action was properly stayed because the decision in the arbitration proceeding could dispose of a dispositive legal issue in the court action. (July 6, 2017)

In 1107 Putnam, LLC v. Beulah Church of God in Christ Jesus of the Apostolic Faith, Inc., the New York Supreme Court, Appellate Division, 2d Department, considered the viability of an action for specific performance of a contract of sale of real property, where the vendor canceled the contract because it was “unable or unwilling” to deliver a marketable title due to encumbrances on the property. The court held that, if a purchaser has “substantially performed its contractual obligations and was ready, willing, and able to perform its remaining obligations, . . . the vendor was able to convey the property, and . . . there was no adequate remedy at law,” the purchaser is entitled to specific performance. (July 5, 2017)

In Daubert v. NRA Group, LLC, the United States Court of Appeals for the Third Circuit addressed whether a debt collector could avoid liability under the Fair Debt Collection Practices Act (FDCPA) by invoking the bona fide error defense, which allows a debt collector to escape liability if its violation of the statute was not intentional and resulted from a bona fide error. The court held that the debt collector could not invoke this defense as the defense does not apply if the violation resulted from a debt collector’s mistaken interpretation of the legal requirements of the FDCPA. (July 3, 2017)

In Chicago Bridge & Iron Co. N.V. v. Westinghouse Electric Company, LLC, the Supreme Court of Delaware addressed whether one party to a complex commercial agreement could recover monetary damages where that party knew that determination of the purchase price was based on financial statements that were not borne out of a proper application of generally accepted accounting principles. Because the contract between the parties expressly limited the remedy for a breach of representations and warranties to a refusal to close and prohibited a right to monetary damages, the court determined that the recovery sought was not supported by the unambiguous terms of the contract. (June 27, 2017)

In Deadco Petroleum v. Trafigura AG, the Supreme Court of New York, Appellate Division, 1st Department, addressed whether a statute of limitations as stated in a product services agreement (PSA) would be tolled by the commencement of an earlier out-of-state action under CPLR 205(a). A distributor of petroleum products had previously commenced an action against petroleum suppliers in California federal court, alleging breach of the PSA, which was dismissed based on the PSA’s forum selection clause designating New York courts as the exclusive forum. After the case was brought in New York, the court held that the breach of partner/strategic partnership, breach of implied covenant of good faith and fair dealing, breach of fiduciary duty, and fraud claims were all time-barred under the PSA’s two-year limitations provision. The fact that the California action was timely commenced did not toll the statute of limitations under CPLR 205(a). (June 15, 2017)

In Aron Security, Inc. v. Unkechaug Indian Nation, the New York Supreme Court, Appellate Division, 2d Department, considered an Indian tribe’s sovereign immunity in a state court action for breach of contract. The court found that the choice-of-law provision of the contract was ambiguous because it did not unequivocally express the Indian tribe’s consent to be sued in a state court. (June 7, 2017)

In Full Spectrum Software, Inc. v. Forte Automation Systems, Inc., the United States Court of Appeals for the First Circuit ruled that a jury could reasonably find that a software company committed unfair and deceptive trade practices because it had induced a subcontractor to begin work on a project without a signed work order, and then refused to compensate the subcontractor after the parties ultimately failed to agree on a scope of work. The court further found that, although there is no right to a jury trial under the Massachusetts consumer protection statute (G.L. c. 93A), the court did not err in submitting the claim to a jury because there may be a right to a jury trial in federal courts under the Seventh Amendment to the United States Constitution. (June 2, 2017)

In Allentown Patriots, Inc. v. City of Allentown, the Commonwealth Court of Pennsylvania addressed whether an option contract for the city to purchase real property upon the occurrence of one of three conditions was valid and enforceable. The court held that the contract was not enforceable because the life of the option was not reasonably restricted and the city’s rights under the agreement were illusory. Specifically, the court found that the agreement failed to provide a time period during which one of the conditions precedent would have to occur before the option would become actionable or expire, there was only a remote possibility that even one of the conditions would occur, and all of the contingencies were in the sole control of the owner. (May 23, 2017)

In Sustainable PTE Ltd. v. Peak Venture Partners LLC, the New York Supreme Court, Appellate Division, 1st Department, addressed the sufficiency of pleading for a tortious interference with contract cause of action relating to an asset management contract. The court held that the plaintiffs properly alleged that non-signatories, through a series of complex business machinations, intentionally procured the counter-signatories’ breach by depriving them of the ability to perform under the agreements. The court also held that the plaintiffs were allowed to assert unjust enrichment because the non-signatories were not parties to the agreement, yet are alleged to have received the value of the plaintiffs’ services. (May 23, 2017)

In Nicholson v. Jablonski & Vogel, the Superior Court of Pennsylvania addressed whether a member of a limited liability company (LLC) may appear in court on behalf of the LLC.  The court held that an LLC is a corporate party and may appear in court only through a licensed attorney and, thus, the complaint filed on behalf of the LLC by its member was properly stricken. (May 19, 2017)

In USA ex rel Petras v. Simparel, Inc., the United States Court of Appeals for the Third Circuit addressed whether the district court erred in dismissing as too speculative a relator’s allegation that accrued dividends owed to the Small Business Administration (SBA) as a preferred stockholder were an “obligation” under the contract. The court held that the False Claim Act (FCA) claim must fail as the SBA was acting in its capacity as receiver and thus did not qualify as the “Government” for purposes of the FCA. (May 18, 2017)

In Wells v. Hodgkins, the New York Supreme Court, Appellate Division, 3d Department, addressed whether the part performance exception to the statute of frauds applied to an alleged oral agreement for the sale of shares in a closely held corporation. The court explained that, for the part performance exception to apply, a party’s partial performance of an alleged oral contract will take such contract out of the statute of frauds only if it can be demonstrated that the acts constituting partial performance clearly refer to the oral contract. The court held that the partial performance exception did not apply because the acts constituting partial performance did not qualify as conduct explainable only by reference to the alleged oral agreement, i.e., opening a bank account in anticipation of a wire transfer of funds, hiring an attorney to reduce the alleged oral agreement to writing, and retrieving stock certificates. (May 11, 2017)

In Ortega v. Goldman Sachs Headquarters, LLC, the New York Supreme Court, Appellate Division, 1st Department, addressed whether a catering company as indemnitor was required to indemnify a food services company pursuant to a contract requiring the indemnitor to indemnify the food services company against any claims arising out of any act or omission of the indemnitor for an underlying personal injury action. The court held that, because the evidence demonstrated that the indemnitor’s conduct was not in any way negligent or the proximate cause of the accident, the indemnitor was not required to indemnify the food services company. (May 11, 2017)

In Moltisanti v. East River Housing Corporation, the New York Supreme Court, Appellate Division, 1st Department, addressed whether the owner of an apartment in a cooperative building who was seeking to build onto an attached balcony was entitled to a preliminary injunction against the building’s operator to prevent the operator from interfering with the construction. The court denied the preliminary injunction, holding that “such an order is improper because it would upset, rather than maintain, the status quo and would effectively grant the ultimate relief sought.” (April 18, 2017)

In Swezey v. Michael C. Fina Company, Inc., the New York Supreme Court, Appellate Division, 1st Department, addressed whether a former at-will sales representative of a company can maintain a claim for breach of oral contract, and related, causes of action, based on an alleged promise by the company to pay the sales representative’s commissions past his termination. The court held that the breach of contract and the related causes of action are unenforceable under the statute of frauds. (April 13, 2017)

In 555 West John Street, LLC v. Westbury Jeep Chrysler Dodge, Inc., the New York Supreme Court, Appellate Division, 2d Department, considered whether a “liquidated damages” provision in a land lease contract was an enforceable liquidated damages clause or an unenforceable penalty. The damages section of the agreement provided the landowner “with a remedy for the whole extent of any injury that would be sustained as a result of a holdover, ‘in addition to’ the sum of $5,000 per day in liquidated damages.” The court held that “[a]n enforceable liquidated damages clause is ‘an estimate . . . of the extent of the injury that would be sustained as a result of breach of the agreement,’ thereby embodying ‘the principle of just compensation for loss.’” In this case, the court held that the purported liquidate damages clause was not an estimate, and was, therefore, unenforceable. (April 12, 2017)

In Citibank, N.A. v. Keenan Powers & Andrews PC, the New York Supreme Court, Appellate Division, 1st Department, addressed whether a finding of fault is required before awarding damages to a party whose property was wrongfully attached. The court held that “[a] finding of fault is not required . . . as plaintiffs are ‘strictly liable’ for the damages they caused.” The court also held that, under the circumstances, the full amount of defense costs incurred by the party whose property was wrongfully attached in the underlying litigation was recoverable as damages. (April 11, 2017)

In New York-Connecticut Development Corporation v. Blinds-To-Go (U.S.) Inc., the Superior Court of New Jersey, Appellate Division, addressed whether a verdict can be sustained where a jury found that a corporation breached the pertinent contract but still received damages under a quantum meruit theory. The court held that if a jury determines that an express contract existed between the parties then the jury cannot be directed to consider quantum meruit damages. (April 10, 2017)

In Bodum USA, Inc. v. Perez, the New York Supreme Court, Appellate Division, 1st Department, addressed the issue of whether a corporation’s complaint adequately alleged that its former CEO breached a non-compete clause. The court stated that “[a] plaintiff alleging a competition-based claim must identify the relevant market with reference to the rule of reasonable interchangeability.” The court held that the corporation’s complaint pleaded nothing but conclusory statements without factual support, and did not allege that the products were “sold to the same relevant market, for a relevant purpose, let alone to the same customers.” (March 30, 2017)

In Quarterman v. City Of Springfield, the Appeals Court of Massachusetts considered whether an applicant could be awarded lost profits in a claim of retaliation based on the denial of a liquor license. The court held that victims of discrimination are entitled to lost profit damages if those damages are direct, personal and supported by adequate proof. Here, the applicant’s claims for lost profits were not direct and personal because he applied for the liquor license in the name of a closely held corporation, of which he had a thirty-percent ownership interest and no evidence established that the corporation would have distributed its profits to the shareholders. (March 29, 2017)

In Rippon v. Smigel, the Superior Court of New Jersey, Appellate Division, addressed whether an action asserting tortious interference, interference with prospective contractual relations, defamation, and Consumer Fraud Act violations against a law firm was barred by the doctrine of res judicata due to the plaintiff’s prior voluntary dismissal with prejudice of a breach of fiduciary duty suit against the same law firm. The court held that res judicata did not apply because the voluntary dismissal was not a final decision on the merits of the claim by a court and because the later claims did not arise out of the same occurrence. (March 22, 2017)

In Carbures Europe, S.A. v. Emerging Markets Intrinsic Cayman Ltd., the New York Supreme Court, Appellate Division, 1st Department, addressed whether the lender of a loan breached a lending agreement when it repeatedly sold and lent the collateral shares in contravention of the lending agreement. Although the lender alleged that the subject transactions constituted permissible hedging under the lending agreement, the court held that a factual dispute precluded dismissal of the breach of contract claim. In addition, the court held that the allegations did not support the lender’s argument that the borrower breached the lending agreement triggering an event of default that permitted the lender to liquidate the collateral. (March 2, 2017)

In Scialdone v. DeRosa, Jr., the New York Supreme Court, Appellate Division, 2d Department, addressed whether the owner of an apartment complex defamed a resident of the apartment complex when the owner sent a letter to various people, including friends and relatives, regarding a dispute over the resident’s claim to entitlement to a third parking space at the complex. The court held that because a reasonable reader would have concluded that the statements constituted expressions of opinion, rather than statements of fact, the statements were not actionable. (March 1, 2017)

In Hagman v. Swenson, the New York Supreme Court, Appellate Division, 1st Department, addressed whether a mixed transaction contract for interior design services that involves both goods and services is governed by a four-year statute of limitations set forth in UCC 2-725 for breach of a sale-of-goods contract or the six-year statute of limitations in CPLR 213 for breach of service contract. The court held that, although the action is for breach of contract for failure to pay for the goods, the transaction, as a whole, was “predominantly one for services” and the sale of goods is “merely incidental to the services provided.” Accordingly, the six-year statute of limitations period applied. (February 23, 2017)

In 76-82 St. Marks, LLC v. Gluck, the New York Supreme Court, Appellate Division, 2d Department, addressed whether a party could withdraw its admission to the notice to admit that a copy of a personal guarantee of a commercial lease was a true and complete copy of the guarantee agreement, and whether the proffered copy was admissible as “secondary evidence” of its terms. The court held that the guarantor could withdraw her admission “since the admission was at the heart of the controversy,” reasoning that she “could not have reasonably believed that the authenticity and completeness of the copy, which was on its face missing a portion of a paragraph, would not be in substantial dispute at trial.” The court also held that the copy could not be admitted as “secondary evidence” because the lessor’s principal was not present when the guarantee was executed, and thus could not testify as to whether the original guarantee was similarly missing a portion of the paragraph and unable to satisfy the trial court that the proffered copy “correctly reflect[ed] the contents of the original.” (February 22, 2017)

In Walsh v. Zurich American Insurance Company, the United States Court of Appeals for the First Circuit addressed whether New Hampshire law barred an employer from relying on an incentive plan’s discretion provisions to change its employee’s incentive formula in a breach of contract case. The court held that the express language and context of the plan allowed the employer to change the incentive formula, but that such changes are subject to the implied obligation of good faith to observe reasonable limits. (February 22, 2017)

In Wolens v. Morgan Stanley Smith Barney, LLC, the Superior Court of New Jersey, Appellate Division, addressed whether a financial institution owes a legal duty to injured third parties who are not their customers. The court found that no such duty is owed absent a statute, regulation or other codified provision imposing it, or a contractual or “special relationship” between the non-customer third party and the financial institution. Because the third-party, the daughter of a sole account holder, had no legal relationship with the financial institution and no reasonable basis to enforce duties owed to her mother, the financial institution owed no duty to the third-party. (February 21, 2017)

In Lion Copolymer, LLC v. Kolmar Americas, Inc., the New York Supreme Court, Appellate Division, 1st Department, addressed issues concerning formation of a contract. The buyer and seller orally agreed the seller would provide the buyer with a certain amount of an industrial chemical that met certain specifications. The agreement was codified in an email sent by the seller and, several days later, the seller sent a formal Transaction Confirmation and its terms and conditions, which included a provision that if the buyer did not object within 48 hours, these documents would make up the parties' agreement. The Transaction Confirmation also contained a forum selection/choice of law provision, a waiver of warranty provision, and a notice of claim provision. The court held that the new provisions in the “Transaction Confirmation and terms and conditions” constituted part of the parties’ agreement because no party objected to them upon their receipt of same. (February 21, 2017)

In Shawe v. Elting, the Supreme Court of Delaware considered whether sanctioning a 50% shareholder for misconduct at trial, including deleting documents from his computer, failing to safeguard his cell phone, improperly gaining access to another 50% shareholder’s emails, and lying multiple times under oath, was an error of law. The court ordered the shareholder to pay in excess of $7 million in fees and expenses related to the litigation, holding that the shareholder’s behavior was in bad faith and “unusually deplorable." (February 13, 2017)

In Hartnagel v. FTW Contracting, the New York Supreme Court, Appellate Division, 2d Department, held that corporate officers “may be held personally liable for torts committed in the performance of their corporate duties.” While a court is permitted to consider affidavit evidence submitted by the corporate officers on a motion to dismiss pursuant to CPLR §3211(a)(7), the evidence will not warrant a dismissal “unless they establish conclusively that [there is] no cause of action.” Here, because the affidavit did not conclusively establish a fact alleged in the complaint to be false, the corporate officers’ motion to dismiss was denied. (February 8, 2017)

In John v. Arin Bainbridge Realty Corporation, the New York Supreme Court, Appellate Division, 1st Department, held that in order to vacate a default judgment under CPLR §5015(a)(1), a business is required to demonstrate “both a reasonable excuse for the default and a meritorious claim or defense to the action.” However, a business’s failure “to keep a current address on file with the Secretary of State” under Business Corporation Law §306 “does not constitute a reasonable excuse” for failure to receive service. (February 7, 2017)

In Mediterranean Shipping Company, S.A. v. Best Tire Recycling, Inc., the United States Court of Appeals for the First Circuit found that, pursuant to the contract between the parties, the company listed on a bill of lading as the shipper of used tires from Puerto Rico to Vietnam was liable for demurrage charges and administrative fees associated with a late shipment. (February 6, 2017)

In You v. Rahmouni, the New York Supreme Court, Appellate Division, 2d Department, addressed whether a plaintiff, suing for injuries allegedly sustained in a car accident, should be precluded from offering evidence based on an MRI performed following that accident, where the imaging company that conducted the MRI had informed defendant, in response to defendant’s record request, that the plaintiff’s MRI films had been destroyed in the imaging company’s database system. The court concluded that the doctrine of spoliation did not apply, and that plaintiff should not be precluded from offering evidence related to the MRI, as plaintiff did not intentionally or negligently dispose of the films and could not be held responsible for the nonparty imaging company’s loss of the films. (February 1, 2017)

In Touro College v. Novus University Corporation, the New York Supreme Court, Appellate Division 1st Department, addressed whether an accredited law school established a justiciable controversy against an online unaccredited law school upon which the court could provide a declaratory judgment. The court dismissed the claim for lack of proof that the accredited law school had been harmed by the online school. (January 26, 2017)

In Eastern Consolidated Properties, Inc. v. 5 East 59 Realty Holding Company, LLC, the New York Supreme Court, Appellate Division, 1st Department, considered the language of a written commission agreement. The agreement provided that the seller shall pay the referrer a percentage fee of the purchase price if the referrer introduced the seller to the party that would ultimately purchase the property. The court held that agreement only required a successful referral and did not require that the referrer to be a “procuring cause” or “direct and proximate link” for the sale. (January 19, 2017)

In White v. Pauly, the United States Supreme Court addressed the issue of a police officer’s right to qualified immunity in a 42 U.S.C. § 1983 action for violation of the plaintiff’s Fourth Amendment right to be free from excessive force. The police officer had shot and killed an armed occupant of a house without giving a warning after having arrived late at an ongoing police action and witnessing shots being fired by one of several individuals in the house, which was surrounded by other officers. The Court held that the officer’s conduct, such as his failure to shout a warning, did not constitute a “clearly established” right. (January 9, 2017)

 In Kirkpatrick v. Hidden View Farm, the Superior Court of New Jersey, Appellate Division, addressed the issue of whether the personal injury liability immunity under the Equestrian Activities Liability Act applies to a minor who accompanied family members to a horse farm but did not personally take part in any horse-related activity there. The minor was bitten by another boarder’s horse as he walked by its stall. The court held that although the minor did not ride or take care of any horses the day he was bitten, his role in accompanying his mother and sister, who were engaged themselves in equine activities, placed him within the immunity statute’s broad definition of a covered “participant.” (January 9, 2017)

In Masso-Torrellas v. Municipality of Toa Alta, the United States Court of Appeals for the First Circuit held that a construction company’s allegation that a municipality had seized its equipment at a worksite failed to state a claim under 42 U.S.C. § 1983 because the municipality’s authority to secure the site stemmed from its contractual rights under an agreement with the construction company, not under its sovereign power as a government entity. (January 9, 2017)

In Pittsburgh Logistics Systems, Inc. v. B. Keppel Trucking, LLC, the Superior Court of Pennsylvania addressed whether compelled arbitration is appropriate where a contract between a logistics company and a trucking company was signed by the trucking company but not the logistics company. In order to compel arbitration, the court must determine whether a valid agreement to arbitrate exists. The court determined there is a valid agreement to arbitrate when there is no express requirement of signature and when both parties intended to be bound by the terms of the contract. Here, while the logistics company did not sign the contract, they informed the trucking company that until they signed the contract, they would not receive payment. This was clear evidence that the logistics company intended to be bound by the terms of the contract. (January 6, 2017)

In Katten Muchin Roseman LLP v. Martha S. Sutherland, the Supreme Court of Delaware held that a law firm could obtain a charging lien for unpaid legal services on a client’s recovery even though the services were not directly connected to the recovery. The court reasoned that, unlike a contingency fee, the total amount the client is required to pay is not based on the client’s recovery when the legal services are billed by the hour. (January 3, 2017)

In FDASMART, Inc. v. Dishman Pharmaceuticals, the Superior Court of New Jersey, Appellate Division, held that there was insufficient evidence to impute the activities of a New Jersey-based corporate defendant to that defendant’s foreign parent corporation for purposes of establishing jurisdiction over the parent under an alter ego theory. The court further held that in personam jurisdiction did not exist merely because the plaintiff corporation served the corporate designee of the parent corporation with process when the designee appeared in New Jersey for his deposition. (December 29, 2016)

In JGK Industries, LLC v. Hayes NY Business, LLC, the New York Supreme Court, Appellate Division, 2d Department, addressed whether a lessor could assert claims stemming from the alleged breach of a lease against a corporate lessee’s individual owners pursuant to a theory of piercing the corporate veil. The court held that a plaintiff seeking to pierce the corporate veil must demonstrate that “the owners of the corporation exercised complete dominion over it in the transaction at issue, and, in doing so, abused the privilege of doing business in the corporate form” in a manner that injured the plaintiff. Finding that “mere conclusory statements that a corporation is dominated or controlled by a shareholder are insufficient to sustain a cause of action against a shareholder in its individual capacity,” the court upheld the dismissal of the lessor’s claim. (December 28, 2016)

In Warren v. Muenzen, the Superior Court of New Jersey, Appellate Division, considered whether a 2009 amendment to the Survivor Act replaced all pre-existing statutes of limitations for claims filed under the Survivor Act with a new statute of limitations that begins on the day of death and expires two years later. The court determined that it did not, and held that the amendment had no effect on the statutes of limitations for claims filed under the Survivor Act except when the death was the result of murder, manslaughter, or aggravated assault. In cases of murder, manslaughter, or aggravated assault, the 2009 amendment serves to eliminate completely the statute of limitations for any claims filed on behalf of the decedent against the individual who caused the decedent’s death. (December 7, 2016)

In State Farm Fire & Casualty Company v. US, the United States Supreme Court considered whether a violation of seal provision of the False Claims Act (31 U.S.C. §3730(b)(2)), which requires that a complaint “shall” be kept under seal, should result in an automatic dismissal of the complaint. The court concluded that the statute is silent as to the remedy for violating the rule, and, absent congressional guidance regarding a remedy, the sanction for breach of a mandatory duty is not loss of all later powers to act. Accordingly, the Court held that seal violation does not mandate dismissal of a relator’s complaint. (December 6, 2016)

In Krzykalski v. Tindall, the Superior Court of New Jersey, Appellate Division, considered whether a trial court erred in placing a phantom defendant on the jury verdict sheet. The court asserted that the consideration of an alleged tortfeasor’s negligence and degree of responsibility is not governed by whether the alleged phantom tortfeasor is a “party,” but rather whether the other tortfeasor will be affected by the verdict. Thus, the court found that the trial court did not err in allowing the jury to apportion a phantom defendant’s negligence. (December 5, 2016)

In Bochetto v. Dimeling, Schreiber & Park, the Superior Court of Pennsylvania considered whether a trial court properly dismissed a complaint on the basis of forum non conveniens. In recognition that the majority of the evidence and party witnesses were located in Portugal, had consented to Portuguese jurisdiction, and the minimal connection between Pennsylvania and the dispute, the court found that the public and private interests weighed in favor of litigating the matter in Portugal. Thus, the court affirmed the trial court’s dismissal for forum non conveniens. (December 5, 2016)

In Calpo-Rivera v. Siroka, the New York Supreme Court, Appellate Division, 1st Department, addressed the sufficiency of documentary evidence submitted on a motion to dismiss in a breach of contract/quantum merit action. The court held that, in general, emails can suffice as documentary evidence for purposes of CPLR 3211(a)(1). However, the court held that the specific emails and other documents submitted did not constitute “documentary evidence” within the meaning of the statute, as they did not conclusively prove that claims sounding in breach of contract or quantum meruit were frivolous. (November 22, 2016)

In Boolbol v. Paradigm Management Group, the New York Supreme Court, Appellate Division, 1st Department, addressed the circumstances of when a missing document charge is appropriate at trial. Because the party who requested a missing document charge failed to establish that the missing evidence ever existed or would be relevant to any disputed factual issues, the court declined to give a missing document charge. (November 22, 2016)

In Gilleran v. Township of Bloomfield, the Superior Court of New Jersey, Appellate Division, held that that the exemption in the Open Public Records Act (OPRA) for security information applied to a request for video footage from a camera located at the local town hall. The defendant township successfully argued that disclosure of the footage would thwart the purposes of security by running the risk of disclosing confidential law enforcement information to the public. (November 22, 2016)

In Halbach v. Normandy Real Estate Partners, the Appeals Court of Massachusetts addressed whether commercial property owners and property managers owed duties of care and warnings regarding existing hazards on public sidewalks adjacent to their building. Holding that no duty exists, the court explained that the owner/manager had no affirmative duty regarding a public way adjacent to its property, just a negative duty of refraining from creating an unsafe condition thereon. Furthermore, the court explained that there was no evidence concerning the owners/managers legal “right of control” over the sidewalk such that a duty could be imposed. (November 18, 2016)

In Toro v. Fitness International, LLC, the Superior Court of Pennsylvania addressed whether an exculpatory clause in a gym membership contravened the public policy of the state and constituted a contract of adhesion. The court determined that, first, when an individual is engaged in a voluntary athletic or recreational activity, a waiver clause is not contrary to public policy. The court also determined that it was not a contract of adhesion because the member chose to seek membership at the fitness center and was not under any commitment or duress to make use of it. (November 10, 2016)

In Best Metropolitan Towel & Linen Supply Company, Inc. v. Estiatorio, the New York Supreme Court, Appellate Division, 2d Department, addressed whether a restaurant owner fraudulently entered into a service agreement with a linen service company based on the company’s allegation that because the restaurant owner terminated the agreement before service was to begin, the owner had no intention of carrying out the agreement. The Court held that the evidence presented by the company, the fact that the restaurant owner terminated the agreement before service began, and the testimony of the company’s lawyer that the restaurant owner never intended to follow through on the service agreement was insufficient and pure speculation. The Court also noted that the service agreement clearly provided that the restaurant owner could terminate the agreement prior to the commencement of service upon paying the sum of $2,500, which he ultimately did.  (November 9, 2016)

In Ginsburg v. Quest Diagnostic, Inc., the Supreme Court of New Jersey considered whether the choice-of-law principles set forth in §§ 146, 145, and 6 of the Restatement (Second) of Conflict of Laws (1971) should be applied uniformly to all defendants in a given case, or whether the choice-of-law defendant-by-defendant analysis should be applied when defendants are domiciled in different states. There were substantial differences in New York and New Jersey law with respect to the possible recoverable damages in wrongful birth claims. The Court determined that a defendant-by-defendant analysis furthers the Restatement principles in the majority of cases and provides the most equitable method of resolving the choice-of-law questions (especially when only two state laws are involved). However, such a defendant-by-defendant analysis may be infeasible in complex cases with many parties from different states, and it requires the trial court to retain the discretion to apply a single state’s law to claims asserted against all defendants. (October 26, 2016)

In Beninati v. Borghi, the Massachusetts Appeals Court considered whether a consultant hired by an owner of a company could be held liable for unfair competition pursuant to Mass. Gen. Laws c. 93A, §11. Concluding that the consultant could be held liable, the court reasoned that, although an employee cannot be held liable to her employer under c. 93A, outsiders who participate with the employee in a breach of fiduciary duty could be found liable. The court explained that the owner personally paid the consultant and hired him to advance his own interests, and not those of the company. (October 24, 2016)

In Skanska USA Building v. Atlantic Yards B2 Owner, the New York State Supreme Court, Appellate Division, 1st Department, held that, in order for an injured party to pierce the corporate veil and collect from third-party owners, it must show that “(1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) that such domination was used to commit a fraud or wrong against the plaintiff which resulted in plaintiff’s injury.” The court concluded that mere allegations of “breach of contract, without more, do not constitute a fraud or wrong warranting the piercing of the corporate veil." (October 20, 2016)

In Kirwin v. Sussman Automotive, the Superior Court of Pennsylvania addressed a consumer’s Unfair Trade Practices and Consumer Protection Law (UTPCPL) claims brought against a car dealership for engaging in a “bait and switch” advertising scheme. In affirming the trial court’s grant of summary judgment in favor of the car dealership, the court explained that the consumer was unable to make out a prima facie showing of justifiable reliance on the dealership’s lower advertised car price. (October 7, 2016)

In Kalter v. Riversource Life Insurance Company of New York, the New York Supreme Court, Appellate Division, 2d Department, addressed whether the present action was barred by the doctrine of res judicata. In holding that the action was barred, the court explained that under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter. Because this action involved the same parties and the same three causes of action as the prior action, the court held that the present action was barred by the doctrine of res judicata. (September 28, 2016)

In Clean Earth of North Jersey, Inc. v. Northcoast Maintenance Corporation, the New York Supreme Court, Appellate Division, 2d Department, addressed the sufficiency of a cause of action for breach of contract on an account stated. The subcontractor sought payment of invoices for work it performed on a project site, and the contractor did not remit payment. The court noted that “[a]n agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time or makes partial payment on the account.” The contractor’s submissions, which included an affidavit of its president and emails exchanged by the parties, raised a triable issue of fact as to whether the contractor objected to the subcontractor’s invoices within a reasonable period of time. (September 21, 2016)

In Roe v. The Pennsylvania Game Commission, the Commonwealth Court of Pennsylvania held that a former employee’s claims for breach of a settlement agreement against the Pennsylvania Game Commission were barred by sovereign immunity. Because the settlement agreement was not the type of contract over which the Pennsylvania Board of Claims retained jurisdiction, there was no waiver of immunity and, therefore, the Commission was immune from suit. (September 22, 2016)

In 1357 Tarrytown Road Auto, LLC v. Granite Properties, LLC, the New York Supreme Court, Appellate Division, 2d Department, held that the implied covenant of good faith and fair dealing may not be interpreted to include obligations that would contradict the “explicit and unambiguous terms of the lease agreement.”  The implied covenant of good faith and fair dealing includes “any promises which a reasonable promise would be justified in understanding,” but may not imply any obligations “inconsistent with other terms of the contractual relationship.” (September 14, 2016)

In Chassen v. Fidelity National Financial, Inc., the United States Court of Appeals for the Third Circuit addressed whether futility of a claim excused delay in invocation of the right of defendants to compel arbitration. The court held that the futility exception was a valid excuse for delay in raising compulsory arbitration because a motion to compel arbitration before the Supreme Court’s decision in AT&T Mobility LLC v. Concepcion would have almost certainly failed. Thus, the defendants did not waive their right to arbitration by raising it three months after that decision. (September 9, 2016)

In Albino v. 221-223 W. 82 Owners Corporation, the New York State Supreme Court, Appellate Division, First Department, addressed entitlement to summary judgment on a case governed by Labor Law §§ 240(1) and 241(6). Conflicting testimony existed as to whether the worker, Albino, fell due to the movement of the scaffold which he was working on, or due to him losing his footing independent of the scaffold. As Albino was the sole witness to the accident, and due to the inconsistent accounts of the accident, the court held that a triable issue of fact existed to prevent summary judgment. (September 8, 2016)

In Regula v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, the Commonwealth Court of Pennsylvania addressed whether a court of common pleas should admit the dismissal of a DUI criminal case as evidence into a civil license suspension matter based on the refusal to submit to a blood test. The court held that the evidence was inadmissible because the result of a criminal DUI proceeding and the legality of the underlying traffic stop are not relevant to an appeal of a civil license suspension matter based on a licensee’s refusal to submit to a chemical test in accordance with the Implied Consent Law. (September 6, 2016)

In L.R. v. School District of Philadelphia, the United States Court of Appeals for the Third Circuit heard a case about a kindergarten teacher who allowed a student to leave with an adult who failed to produce proper identification, thereby exposing the student to sexual assault. The court addressed whether the teacher was entitled to qualified immunity under the Due Process Clause. The court held that under the state-created danger exception, the teacher was not entitled to qualified immunity because he exposed the student to an obvious danger. (September 6, 2016)

In National Association for the Advancement of Colored People v. City of Philadelphia, the United States Court of Appeals for the Third Circuit addressed whether the City’s ban on noncommercial advertisements at the Philadelphia International Airport violates the First Amendment. Under the test for limited public forums, which allows content-based restrictions as long as they are reasonable and viewpoint neutral, the court held that the City's restriction is unconstitutional. The court rejected the City’s claim that the ban maximized revenue and avoided controversy as not supported by the record or common-sense inferences. (August 23, 2016)

In Goldman v. Citigroup Global Markets, Inc., the United States Court of Appeals for the Third Circuit addressed federal court subject matter jurisdiction over an arbitration award. The court held that the Federal Arbitration Act, which governed the arbitration award, does not provide a federal question to meet federal subject-matter jurisdiction. (August 22, 2016)

In Center for Science Teaching & Learning v. Freeport Community Development Agency, the New York Supreme Court, Appellate Division, 2d Department, found that a not-for-profit organization did not breach a license agreement to use certain premises owned by a developer where it did not cooperate with a nonparty tenant of the developer. The court found that when the terms of a written contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract. This particular contract contained one unambiguous provision concerning the nonparty tenant, which merely provided that the tenant could continue to utilize a certain area within the premises. (August 17, 2016)

In ENGIE Gas & LNG, LLC v. Department of Public Utilities, the Supreme Judicial Court of Massachusetts addressed whether the department has authority to review and approve ratepayer-backed, long-term contracts entered into by electric distribution companies for additional gas pipeline capacity. The court held that the department’s order was not an improperly promulgated rule, but the order was still invalid because the department does not have authority to review and approve such contracts by electric distribution companies. (August 17, 2016)

In Suffolk Construction Company, Inc. v. Benchmark Mechanical Systems, Inc., the Supreme Judicial Court of Massachusetts addressed whether a company could recover a surplus, which resulted when its bank applied a collateral assignment of payments owed under a subcontract between the company and a third party. The court held that the company’s common law claims for restitution and reimbursement were time barred, but the company still presented valid equitable claims for implied subrogation and implied indemnification. (August 12, 2016)

In Deutsche Bank National Trust Company v. Flagstar Capital Markets Corporation, the New York Supreme Court, Appellate Division, 1st Department, reinforced the rule that a breach of contract claim in a residential mortgage-backed securities put-back action accrues on the date the allegedly false representations and warranties were made. The court further held that a contract provision specifying a set of conditions that would have delayed the accrual of the cause of action is unenforceable as against public policy, because it is tantamount to extending the statute of limitations on an imprecise “discovery” rule. (August 11, 2016)

In New York Military Academy v. NewOpen Group, the New York Supreme Court, Appellate Division, 2d Department, addressed whether a letter of intent that provided that a material term was left for future negotiations is enforceable. Because the letter of intent provided that the parties were to negotiate to arrive at a mutually acceptable agreement, the court concluded that the letter of intent demonstrated that the allegations of breach of contract related to a mere agreement to agree and thus was unenforceable. (August 3, 2016)

In Morgan v. Worldview Entertainment Holdings, Incorporated, the New York Supreme Court, Appellate Division, 1st Department, addressed the propriety of an order of attachment of property where the plaintiff, the former chief executive officer of a movie production company, alleged that the defendant-production company failed to pay him pursuant to a separation agreement. The court approved the order of attachment because the chief executive officer’s allegations that an entity affiliated with the production company was the only investment vehicle producing revenue for the production company was sufficient to establish an identifiable risk based on the entity’s financial position. The court also held that the amount of the attachment was supported by evidence of the value of the chief executive officer’s recoupment and the value of his credit as an executive producer on a film. (July 21, 2016)

In Paramount Pictures Corporation v. Allianz Risk Transfer AG, the New York Supreme Court, Appellate Division, 1st Department, addressed whether a cause of action for breach of the covenant not to sue in a state court action was barred by res judicata when that cause of action could have been asserted as a counterclaim in a prior federal action between the same parties. The court held that the cause of action was barred by the doctrine of res judicata because it was a compulsory counterclaim under the Federal Rules of Civil Procedure because it existed at the time the defendant served its answer to the complaint in the federal action and “arises out of the transaction or occurrence that is the subject matter” of the defendant’s federal claims. The court noted that to litigate the cause of action for breach of the covenant not to sue in the federal action would not have required adding another party over whom the district court could not acquire jurisdiction. (July 21, 2016)

In Telwell Inc. v. Grandbridge Real Estate Capital LLC, the Superior Court of Pennsylvania held that no contractual relationship existed between a property owner who had entered into a loan commitment and the agent of the issuer of the loan because there was no evidence that the agent was a party to the loan commitment or note, or that the agent purchased the note, or that the note was assigned by the issuer to the agent. The court also held that contractual liability could not be sustained on an unjust enrichment theory because the benefit at issue (overpayment) was conferred upon the issuer of the loan commitment rather than on the agent. (July 21, 2016)

In Walters v. UPMC Presbyterian Shadyside, the Superior Court of Pennsylvania held that a special relationship could be found between an employee/agent and its employer medical center when the employer was aware of its employee’s dangerous conduct that would likely cause bodily harm to others if not controlled. The court further held that this special relationship could impose a duty of care on the employer to use reasonable care to protect third parties from the employee’s foreseeable harmful conduct. The court noted that “reasonable care” may be satisfied by reporting an employee’s diversion of intravenous drugs accessed on the employer’s premises. However, in regard to the Controlled Substances Act, the court held that the medical center could not be found negligent per se for failing to report its employee’s diversion of intravenous drugs, as that statute was intended to protect the general public instead of a specific class of individuals. (July 21, 2016)

In J. Triple S., Inc. v. Aero Star Petroleum, Inc., the New York Supreme Court, Appellate Division, 3d Department, addressed when an oral modification to a written agreement is effective despite a prior agreement that any changes must be memorialized with a writing. The court held that in the absence of a writing, any alleged oral modification is barred by General Obligations Law § 15-301 if it has not been acted upon to completion. Under the facts of the case, the purported oral modification was not acted upon until completion, and the alleged oral modification was not enforced. (July 7, 2016)

In Coleman v. Ogden Newspapers, Inc., the Superior Court of Pennsylvania upheld the trial court’s grant of summary judgment and dismissal of a defamation and false light claim brought by a former Chairman of the Clinton County Commissioners against a newspaper for publishing various articles related to allegations that the Commissioner had been engaged in a criminal conspiracy to divert funds from the YMCA. The court held that, although ultimately acquitted of the charges, as a public figure, the Commissioner was required (and failed) to establish, by clear and convincing evidence, that the newspaper had acted with actual malice (i.e, actual knowledge that the statement was false or reckless disregard as to its truth or falsity) in publishing the article. (June 28, 2016)

In Whole Woman’s Health v. Hellerstedt, the United States Supreme Court considered whether a Texas state law created an undue burden for women seeking an abortion. The law required that: (1) a physician performing an abortion have active admitting privileges at a hospital located within 30 miles of where the abortion is performed; and (2) the minimum standards for an abortion facility be equivalent to the minimum standards adopted for ambulatory surgical centers. The Court determined these provisions would place a substantial obstacle in the path of women seeking a pre-viability abortion, and that the provisions did not offer sufficient medical benefits to justify the burdens on access that they would impose. In a 5-3 decision, the Court held that the law created an undue burden on access to abortion, and violated the Federal Constitution. (June 27, 2016)

In Horwath v. DiGrazio, the Superior Court of Pennsylvania held that Pa.R.Civ.P. 237.3(b) does not foreclose petitions to open a judgment of non pros made 10 days after judgment was entered but, rather, presumes they are untimely and requires proof of a reasonable excuse pursuant to Pa.R.Civ.P. 3051(b)(1). Because the plaintiff demonstrated that her initial counsel had abandoned her case by failing to file a complaint and refusing to cooperate with new counsel, cause was shown to reopen the judgment of non pros(June 24, 2016)

In Morgan v. Sanford Brown Institute, the Supreme Court of New Jersey addressed whether a delegation clause in an arbitration provision, purporting to allow the parties to delegate to an arbitrator whether or not a dispute is subject to arbitration, was enforceable. The court held that the provision in question did not contain a clearly identifiable delegation clause and that the clause was not enforceable because it failed to explain that arbitration is a substitute for the right to seek relief in the judicial system. (June 14, 2016)

In Smallberg v. Raich Ende Malter & Company, LLP, the New York Supreme Court, Appellate Division, 2d Department,addressed whether a proposed amended complaint sufficiently alleged a cause of action to recover damages for aiding and abetting a breach of fiduciary duty. The court held that the allegations that a former partner of an accounting firm, prior to withdrawing from the accounting firm, had a fiduciary duty to the other partners of the accounting firm, that the former partner’s new accounting firm and at least one of its principals knew of this duty and nevertheless participated with the former partner in conduct designed to breach that fiduciary duty, and that the former accounting firm sustained damages as a result was sufficient to state a cause of action for aiding and abetting a breach of fiduciary duty. (June 15, 2016)

In In Re Isernio v. Blue Star Jets, LLC, the New York Supreme Court, Appellate Division, 1st Department, addressed what is required to vacate an arbitrator’s award. The court noted that a final and definite award will not be vacated unless it violates a strong public policy, is totally irrational, or exceeds a specifically enumerated limitation on the arbitrator’s powers. As none of the grounds for vacating an award existed, the court affirmed the arbitrator’s award. (June 9, 2016)

In Chase Home Finance, LLC v. Garcia, the New York Supreme Court, Appellate Division, 2d Department, addressed a party’s ability to assert a defense of lack of standing. The defendants failed to timely appear in the action, and then moved to dismiss the complaint on the ground that the plaintiff lacked standing. As the defendants did not show good cause for their delay in filing their pre-answer motion, the court found that they waived the defense of lack of standing. (June 8, 2016)

In Allen-Myland, Inc. v. Garmin International, Inc., the Superior Court of Pennsylvania addressed the validity of a warranty disclaimer if not disclosed to the purchaser until after the contracting process is complete. The court held that a warranty disclaimer, which was not presented to the purchaser before the sale, is ineffective because it did not form a part of the basis of the bargain. (May 24, 2016)

In Canon Financial Services, Inc. v. Meyers Associates, LP, the New York Supreme Court, Appellate Division, 1st Department addressed whether the existence of an express warranty for a party’s products was sufficient for the plaintiff to assert claims for negligent misrepresentation and breach of contract directly against the party for the actions of an independent third-party products dealer from which the plaintiff leased the party’s equipment. The court held that the existence of the express warranty was not sufficient to state claims for negligent misrepresentation and breach of contract against the party, with whom the plaintiff had never dealt or had any agreement with,and that those claims were properly dismissed. (May 24, 2016)

In In re Richard Vento v. Alliance Holding Companies, LTD, the New York Supreme Court, Appellate Division, 1st Department, addressed whether “it is necessary to obtain [personal] jurisdiction” over a defendant “for a special proceeding to confirm an arbitration award to be valid.” The court held that personal jurisdiction is required and because the individual petitioners failed to establish personal jurisdiction over the corporate respondents, the individuals’ petition to confirm an arbitration award was properly dismissed. (May 19, 2016)

In Nevco Contracting Inc. v. R.P. Brennan General Contractors & Builders, Inc.,the New York Supreme Court, Appellate Division, 1st Department addressed whether a general contractor was liable to a subcontractor for breach of contract. The court held that the general contractor breached the agreement between the parties by failing to pay an amount due to the subcontractor. The court also held that the “‘pay-when-paid’ provision in the subcontract is not an effective condition precedent to [the general contractor’s] duty to perform, since such provisions are ‘void and unenforceable as contrary to public policy.’” (May 17, 2016)

In Alevy v. Uminer, the New York Supreme Court, Appellate Division, 1st Department, addressed whether a contractor breached a purported Independent Contractor Agreement (ICA). The court held that the contractor could not have breached the agreement because there was overwhelming evidence that the contractor did not sign the agreement because he could not recall signing the agreement, and because he testified that the signature on the agreement did not appear to be his. The court also noted additional issues with the agreement that called into question its authenticity, including missing paragraphs and page numbers. (May 12, 2016)

In Chanin v. Machcinski, the New York Supreme Court, Appellate Division, 1st Department, addressed whether investors adequately alleged that they lost their entire investment as a result of their reliance on false and misleading statements from outside counsel to a hedge fund. The court held that the investors adequately pleaded and showed the required “privity-like relationship” for their negligent misrepresentation claim. The court also held that the investors adequately pleaded the other elements of their negligence claim, and outside counsel failed to establish as a matter of law that there were no false statements in the letter, that the investors’ reliance on counsel’s statements was unreasonable, or that the alleged false statements did not proximately cause the investor’s alleged losses. (May 12, 2016)

In Estate of Solomon Z. Balk, Deceased, the Superior Court of New Jersey, Appellate Division, considered whether failure to make the first payment in an installment contract constituted a total breach of the contract when partial payments were later made to the plaintiff. The court, addressing the statute of limitations, held that in the absence of anticipatory repudiation, a missed payment is insufficient to constitute a total breach of an installment contract and a new cause of action arises, and related statute of limitations begins to run, from the date each payment is missed. (May 12, 2016)

In Walsh v. Teltech Systems, the United States Court of Appeals for the First Circuit addressed whether a company that provided a prepaid minutes-based calling service, which allowed customers to disguise the phone number from which they place calls, was liable under the Massachusetts consumer protection statute to a woman who had been sexually harassed by one of the company’s customers, who had used the service to make it appear the sexual harassment was conducted by another. The court concluded that, although the woman was victimized by the use of this service, the company’s actions had not caused the woman’s injuries. (May 2, 2016)

In Trafon Group, inc. v. Butterball, LLC, the United States Court of Appeals for the First Circuit addressed whether a wholesale food distributor’s claim against Butterball, with whom it had a distribution agreement for sale of whole bird and turkey part products, for violation of an exclusive distribution agreement was barred by the three-year statute of limitations. The court held that where a 2009 letter put the distributor on notice that the turkey company did not view the relationship as exclusive, the distributor’s claims (filed more than three years after that letter) were barred. (May 2, 2016)

In Bayless v. TTS Trio Corporation, the Supreme Judicial Court of Massachusetts addressed whether an affidavit under the dram shop act must be a sworn statement based upon personal knowledge. The dram shop act requires that any complaint for negligence in the distribution, sale, or serving of alcohol must be accompanied by an affidavit setting forth facts to raise a legitimate question of liability. Here, this affidavit, filed by the administrator for the estate of an individual who died in a one-car accident after leaving the restaurant that served him alcohol, set forth numerous witness statements regarding the service of alcohol, but statements were based upon the administrator’s information and belief rather than the administrator’s personal knowledge. The court concluded that an affidavit based on information and belief is sufficient to satisfy the dram shop act procedural requirements. (April 28, 2015)

In Spitz v. Drew the New York Supreme Court, Appellate Division, 2d Department, addressed a motion for leave to renew the court’s prior decision, which denied defendants’ request for change of venue. On their motion to renew, the defendants submitted new evidence to suggest that the plaintiff’s choice of venue was improper. The court held that the defendants failed to provide a reasonable justification for their failure to present new evidence and therefore denied the motion for leave to renew. (April 27, 2016)

In Goldstein v. Bass, the New York Supreme Court, Appellate Division, 1st Department, determined that a shareholder derivative complaint, alleging that many units in a cooperative corporation were sold at below-market rates and that the managing agent was given a contract at an above-market rate, must be dismissed because it did not allege facts such as self-dealing, fraud, or bad faith that would establish that the sale of units at below-market prices could not have been the product of sound business judgment. The court also found that the complaint did not meet the requirements of Business Corporation Law Section 626(c) because it did not set forth with particularity the efforts to secure the initiation of the action by the board or the reasons for not making the effort. (April 21, 2016)

In Episcopal Health Services, Inc. v. POM Recoveries, Inc., the New York Supreme Court, Appellate Division, 2d Department, dismissed a cause of action for an account stated on the grounds that the party in charge of billing services did not assert an agreement as to the amount due. The court stated that merely asserting “the mere silence and failure to object to an account stated cannot be construed as an agreement to the correctness of the account.” (April 20, 2016)

In Weitzner v. Sanofi Pasteur, Inc., the United States Court of Appeals for the Third Circuit held that a medical practice’s failure to accept an offer of judgment under Federal Rule of Civil Procedure 68 made before the medical practice filed a motion for class certification against pharmaceutical companies for violation of the Telephone Consumer Protection Act does not render the case moot. The court held that even though the pharmaceutical companies offered an amount reflecting the maximum the medical practice could recover under the law, the unaccepted settlement offer has no force when the complaint seeks relief on behalf of the medical practice as well as a class of similarly situated entities. (April 6, 2016)

In Galanova v. Safir, the New York Supreme Court, Appellate Division, 2d Department, addressed whether a tenant-shareholder in a residential cooperative building and a member of the building’s board of directors sufficiently established that her fellow board members defamed her in two emails sent to the board members indicating that the tenant-shareholder was in arrears and/or owed a debt to the building. In holding that the alleged defamatory statements were non-actionable statements of opinion, the court explained that expressions of an opinion, false or not, libelous or not, are constitutionally protected and may not be the subject of a private cause of action. Specifically, the court held that the statements contained in the two emails were non-actionable expressions of opinion because they amounted to subjective characterizations of the tenant-shareholder’s behavior and an evaluation of her performance as a member of the board. (April 6, 2016)

In Berkowitz v. Berkowitz, the United States Court of Appeals for the First Circuit addressed whether a father’s testimony concerning familiarity with his daughter’s handwriting was sufficient to show that the daughter forged her father’s signature to effectuate the transfer of some of her father’s assets. The court held that the father was familiar with his daughter’s handwriting and, therefore, his testimony was permitted. The court also held that there was no error in awarding the father prejudgment interest from the date he filed the lawsuit, rather than the date on which the daughter breached her fiduciary duty. (March 25, 2016)

In Lerch v. Ark Restoration & Design Ltd., the New York Supreme Court, Appellate Division, 1st Department, addressed whether the parties had a joint venture agreement to sell jewelry at an art show and whether that agreement was required to be in writing. The court held that the agreement contained “no provision for the sharing of losses, and therefore was not one for a joint venture.” Since there was no joint venture, the “agreement for a commission or to act in negotiating a sale” was required to be in writing to be enforceable. (March 24, 2016)

In Kilnapp Enterprises v. Massachusetts State Automobile Dealers Association, the Appeals Court of Massachusetts addressed whether an auto detailing broker, whose business consisted of connecting auto dealerships with car detailing services, had a viable defamation claim against the Massachusetts State Automobile Dealers Association for an article contained in its newsletter warning dealerships about Department of Labor enforcement actions against the broker and dealerships who had worked with the broker for unpaid wages owed to the auto detailers. The court noted that because the statements were conditionally privileged because publisher and recipients shared a common interest and the publication was reasonably necessary to protect a legitimate business interest, these statements were only defamatory if materially false. As the statements in the article were not provably false, the court concluded that the broker could bring no defamation claim. (March 17, 2016)

In Katz, Nannis & Solomon, P.C. v. Levine, the Supreme Judicial Court of Massachusetts held that parties to a commercial arbitration agreement could not alter by contract the scope or grounds of judicial review of an arbitration award, as set forth in the Massachusetts Uniform Arbitration Act for Commercial Disputes. (March 9, 2016)

In Abreu v. Barkin & Associates Real Estate, LLC, the New York Supreme Court, Appellate Division, 1st Department, addressed whether the plaintiff could bring a cause of action for fraudulent conveyance. The court held that the plaintiff could not bring a fraudulent conveyance cause of action because the corporation’s sale of its telephone numbers, goodwill, and rights under a sublease to the corporation were of value to the corporation, but the plaintiff failed to show that they had any value as to the plaintiff. Further, plaintiff did not show that the $20,000 purchase price was not a “fair equivalent” for the items that the corporation sold. (February 25, 2016)

In Dougherty v. Pepper Hamilton LLP, the Superior Court of Pennsylvania addressed whether information used by a law firm was generally known such that it did not breach any duty owed to a former client. The former client sued the law firm for breach of its fiduciary duty because it used information it gleaned about the former client during its representation of that client in the firm’s defense of a later defamation suit brought by the former client against a newspaper. The court remanded the case because an issue existed as to whether the confidential documents published by the newspaper (which had been erroneously attached as an exhibit to a filing in a separate, unrelated criminal lawsuit) were “generally known” such that any potential disclosure by defendant law firm was appropriate. (February 3, 2016)

In Madison Realty Capital, L.P. v. Scarborough-St. James Corporation, the New York Supreme Court, Appellate Division, 1st Department, addressed whether it could vacate or modify an arbitration award. The court held that there was no basis to upset the final award because the arbitrator did not exceed his authority and there was no computational error or mistake in description in the award. In New York, “‘[a] court cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one.’” (January 28, 2016)

In Laws Construction Corporation v. Town of Patterson, the New York Supreme Court, Appellate Division, 2d Department, found that a plaintiff bidder on a construction project cannot recover damages from a municipality associated with a delay in construction unless it first establishes that the defendant municipality engaged in wrongful or negligent conduct that induced the bidder to change his position to his detriment resulting in manifest injustice. The court further held that estoppel generally is not available against a municipal defendant with regard to the exercise of its governmental functions. (January 20, 2016)

In G2 FMV, LLC v. Thomas, the New York Supreme Court, Appellate Division, 1st Department, addressed whether an indemnification provision in the operating agreement of a Delaware limited liability company provided indemnification for members of the LLC’s personal claims (that is, claims that solely involve the members’ personal interests) under Delaware law. The court found that the indemnification provision at issue was broad enough to encompass claims brought by members of the LLC. (January 7, 2016)

In Chambers v. Weinsteinthe New York Supreme Court, Appellate Division, 1st Department, addressed whether the plaintiffs stated a claim for aiding and abetting fraud with respect to an alleged fraudulent Ponzi scheme involving the purchase of Facebook shares. To state a claim for aiding and abetting fraud, a plaintiff must allege (1) the existence of the underlying fraud; (2) defendant’s actual knowledge of the fraud by the primary wrongdoer; and (3) the defendant’s “substantial assistance” in carrying out the fraud. In considering the “substantial assistance” prong, the court held that the plaintiffs sufficiently stated “substantial assistance,” because the complaint alleges that defendants assisted in the fraud by assigning property to co-defendants and by placing the proceeds of the fraud beyond the reach of plaintiffs, thereby causing plaintiffs harm. (January 7, 2016)

In Vautar v. First National Bank of Pennsylvania, the Superior Court of Pennsylvania considered whether non-parties to a contract who benefit from the breach of the contract but who commit no malfeasance may be held liable to a contracting party on an unjust enrichment theory. The court held that the trust beneficiary was not required to demonstrate wrongdoing on the part of the trustee in order to prove unjust enrichment. (January 6, 2016)

In Lomas v. Kravitz, the Superior Court of Pennsylvania addressed whether a showing of fraud is sufficient to establish an entitlement to punitive damages. The court reiterated that the underlying fraud must be accompanied by acts that were committed wantonly or vindictively. Here, the trial court found that the defendant’s actions over nearly 20 years, including the abuse of corporate forms and accounting methods, adequately demonstrated a wanton disregard to the rights of others. (December 21, 2015)

In Sliney v. Previte, the Supreme Judicial Court of Massachusetts addressed whether the Massachusetts Legislature acted constitutionally in retroactively extending the statute of limitations for tort actions arising from child sexual abuse from three years to thirty-five years. The court concluded that extending the statute of limitations does not interfere with a vested property right in having an action dismissed, and does not interfere with procedural due process rights. (December 9, 2015)

In Harley-Davidson Credit Corporation v. Galvin, the United States Court of Appeals for the First Circuit addressed whether a lender could collect a deficiency balance from a guarantor of a defaulted promissory note (secured by an aircraft) that remained after the sale of the aircraft, where the guarantor claimed that the sale of the aircraft had not been commercially reasonable. The court held that fact questions regarding repairs to the aircraft precluded a conclusion that the sale had been commercially reasonable. (December 8, 2015)

In 2BSurrey, LLC v. 20 E. 76th St. Owner LLC, the New York Supreme Court, Appellate Division, 1st Department, addressed whether the parties to a real estate transaction waived their contractual writing requirements. The court held that, by their course of conduct, the parties waived any contractual writing requirements by adjourning the closing date on two different occasions without a writing and “allowing a party to complete financing without ‘written approval’” signed by both parties. (December 8, 2015)

In Americhoice Federal Credit Union v. Ross, the Superior Court of Pennsylvania addressed whether a credit union provided proper written notice of its intention to file a praecipe for default judgment in a mortgage foreclosure action. The court held that the written notice failed to include specific reasons why the homeowners were in default and, therefore, the notice was defective on its face because it failed to substantially comply with the format required by Pennsylvania Rule of Civil Procedure 237.5. (December 7, 2015)

In Albanez v. Charles, the New York Supreme Court, Appellate Division, 2d Department, determined that an order issued in a declaratory judgment granting a motion for leave to enter a default judgment for failure to appear or answer the complaint is conclusive for res judicata purposes. The court found that the doctrine of claim preclusion is applicable to an order or judgment taken by default, which has not been vacated, as well as to issues which were or could have been raised in the prior proceeding. (December 3, 2015)

In OBB Personenverkehr AG v. Sachs, the United States Supreme Court evaluated whether a suit brought by a resident of California who purchased an Eurail pass over the internet from a Massachusetts-based travel agent and later suffered traumatic personal injuries after falling onto train tracks owned by Austria should be dismissed because it was barred by the Foreign Sovereign Immunities Act or it fell within a statutory exception. The Court found the suit fell outside the commercial activity exception (28 U.S.C. § 1605(a)(2)) and was therefore barred by sovereign immunity. (December 1, 2015)

In MG Hotel, LLC v. Bovis Lend Lease, LMB, Inc., the New York Supreme Court, Appellate Division, 1st Department, addressed whether the buyer could recover more than the purchase price in connection with the purchase of defective HVAC units. The court held that the written warranty the seller provided to the buyer expressly provided the buyer with the limited remedy of reimbursement of the purchase price for any defective units, waived any liability for consequential and incidental damages, and waived the implied warranties of merchantability and fitness for a particular purpose. (November 19, 2015)

In Schultz v. Sayada, the New York Supreme Court, Appellate Division, 3d Department, addressed whether two purchasers of an apartment building formed a joint venture when they purchased the property. The court held that the purchasers intended to form a joint venture based on the totality of their conduct even though the joint venture later dissolved. Specifically, the court found that the following facts satisfied the essential elements of a joint venture: each purchaser contributed $25,000 to the purchase price of the apartment building, at the outset each purchaser actively participated in the management of the property, and at least at the outset, they had an understanding manifesting their intent to renovate the property, lease the apartment units, and at an undetermined point in the future, sell at a profit. (November 12, 2015)

In Sealink Funding Ltd. v. Morgan Stanley, the New York Supreme Court, Appellate Division, 1st Department, addressed whether the assignee of certain residential mortgage-backed securities certificates had standing to bring a fraud action. The court held that the assignee did not have standing because the subject sale and purchase agreements did not transfer tort claims to the assignee. Specifically, the court held that the agreements did not contain an express assignment of tort claims, and the court declined to find an implied assignment of legal claims based on the assignee’s “commercial context” and “business common sense” arguments. (November 12, 2015)

In Franklin v. Daily Holdings, Inc., the New York Supreme Court, Appellate Division, 1st Department, addressed whether an internet news article published by an online newspaper contained two defamatory statements about a New York City DJ. The court held that for the first statement, the DJ failed to sufficiently plead special damages where he stated the ways in which he believed his career was damaged as a result of the article, but failed to state more than a round figure of $3 million when alleging his damages. As for the second statement, although the statement was a direct quote from the DJ’s Twitter account, the court denied the newspaper’s truth defense because a comparison of the context of the two versions of the statement revealed the potential for them to have different effects on the mind of the reader. (November 12, 2015)

In Wyeth Pharmaceuticals, Inc. v. Borough of West Chester and Pfizer Inc., the Commonwealth Court of Pennsylvania addressed whether a contract would continue perpetually when no clear termination date was set. The court held that a contract of perpetual duration “requires express language in the contract.” Absent express terms for infinite duration, the court held the contract was for a reasonable duration, terminable at will by either party. (November 5, 2015)

In Medallion Financial Corporation v. Weingarten, the New York Supreme Court, Appellate Division, 1st Department, addressed whether the federal Small Business Investment Act of 1958 (SBIA) preempts New York usury law such that a “Participation Interest” within a taxicab medallion financing contract was enforceable. The court found that it was enforceable and that the SBIA preempted New York usury law because the SBIA indicated that a state would need to legislatively opt out of such federal preemption and New York has not done so. The court thus affirmed the trial court’s finding that the “Participation Interest” was not usurious under the SBIA because it was either a contingent obligation or “equity security” excluded from the definition of “interest” under the SBIA. (October 29, 2015)

In Nertavich v. PPL Electric Utilities, the Supreme Court of Pennsylvania affirmed the decision of the Superior Court of Pennsylvania. The court examined whether a utility company could be liable for injuries sustained by a painting subcontractor’s employee while working on the utility’s electric transmission pole. The court found that the alleged evidence of control by the utility company was insufficient as a matter of law to constitute control over the subcontractor’s work, upheld the decision to vacate the jury’s $2.5 million verdict, and entered judgment in favor of the utility. (October 27, 2015)

In Perelman, and JEP Management, Inc., v. Perelman, the Superior Court of Pennsylvania considered whether the claims in plaintiff’s complaint should be precluded based on principles of res judicata and/or collateral estoppel. In a federal action based on the same alleged litigation misconduct as this state claim for wrongful prosecution under the Dragonetti Act, the plaintiff had filed a motion for sanctions under Federal Rule of Civil Procedure 11, which was denied. The court held that the federal court’s Rule 11 order did not preclude plaintiff’s claims in state court. (October 27, 2015)

In Castellani and Corcoran v. The Scranton Times, L.P., the Supreme Court of Pennsylvania considered two issues regarding a defamation action against a newspaper: (1) whether two judicial opinions published in the local newspaper, evaluating whether there had been a violation of grand jury secrecy, should be excluded as inadmissible hearsay at trial; and (2) whether the two judicial opinions should be excluded under Pa.R.E. 403 on prejudice grounds. The court held that both judicial opinions should have been permitted to be introduced at trial as evidence of the newspaper’s state of mind. (October 27, 2015)

In Nomura Asset Capital Corporation v. Cadwalader, Wickersham & Taft LLP, the New York Court of Appeals found that an asset management firm had not established that its counsel failed to properly advise and conduct the requisite due diligence in a mortgage securitization matter. The court concluded that the law firm established that it provided the proper advice regarding REMIC qualification, and the argument that the management firm employees did not understand REMIC principles does not present a triable issue of fact. Further, the court concluded that the law firm established that it conducted the due diligence required in the context of its representation of its client by “exercising the ordinary and reasonable skill and knowledge commonly possessed by a member of the legal profession.” (October 22, 2015)

In Vanzo Wholesale Food Equipment, Inc. v. 28 McEwan Street, LLC, the New York State Supreme Court, Appellate Division, 2d Department, examined the evidence needed to successfully prove a cause of action to recover on an account stated. In support of its cause of action for an account stated, Vanzo Wholesale Food Equipment submitted an affidavit of its president which stated that Vanzo generated billing invoices and a statement of account for the defendant in the regular course of business. The court held that the billing invoices demonstrated that the defendant had made partial payments on the account, and as such, Vanzo established its prima facie entitlement to judgment as a matter of law. (October 14, 2015)

In Truax v. Roulhac, the Superior Court of Pennsylvania considered whether compliance with applicable zoning laws established, as a matter of law, that the owner of a parking lot had exercised due care to safeguard a business invitee from being struck by a vehicle in the parking lot. The court held that compliance with law or administrative regulations does not establish that due care was exercised and that the injured plaintiff had presented sufficient evidence at trial to enable the jury to conclude that a reasonable person would have taken additional precautions to safeguard business invitees in the parking lot. (October 7, 2015)

In The Bank of New York Mellon v. Johnson, the Superior Court of Pennsylvania examined the procedural requirements for a default judgment in a mortgage foreclosure action. The court found that the bank had followed the rules of civil procedure seeking permission to proceed with alternative service of original process and had met the requirements of Rule 1147 which governs the content of mortgage foreclosure complaints. (August 19, 2015)

In Ferrarella v. Godt, the New York Supreme Court, Appellate Division, 2d Department, determined that a stock purchase agreement was enforceable despite the fact that the seller relied on an attorney who was suspended from the practice of law. The court found that the seller failed to claim that a misrepresentation by the purchasers induced her into executing the sale agreement and that her attorney had actual authority by virtue of a power of attorney to bind her to the asset sale agreement. (August 19, 2015)

In Geisinger Community Medical Center v. U.S. Department of Health and Human Services, the U.S. Court of Appeals for the Third Circuit addressed whether or not an agency regulation was lawful. Hospitals that are disadvantaged by their geographic location may reclassify to a different wage index area for certain Medicare reimbursement purposes by applying for redesignation to the Medicare Geographic Classification Review Board (Board). A separate statutory mechanism for obtaining a reclassification (Section 401) also exists. The Board issued a regulation that hospitals cannot obtain reclassification both through the Board as well as Section 401. The court held that the government must treat hospitals with Section 401 status like hospitals physically located in rural areas for purposes of reclassification. (July 23, 2015)

In Quality Cleaning Products R.C., Inc. v. SCA Tissue North America, LLC, the United States Court of Appeals for the First Circuit held that a federal court sitting in diversity must apply the relevant state’s statute of limitations, including its accrual rules. The fact that a diversity-based action is brought in a federal court rather than a state court should not lead to a substantially different result, and the court declined to graft a federal common law of accrual onto local statutes of limitations. Under state law, the continuing violation doctrine did not toll the statute of limitations for a breach of contract claim, which is a single, readily ascertainable event, and not a prolonged series of wrongful acts. (July 21, 2015)

In Hadley’s, Inc. v. Airwaves Global Logistics, LLC, the New York Supreme Court, Appellate Division, 2d Department, addressed the voluntary payment doctrine as a bar to “recovery of payments made with full knowledge of the facts, and in the absence of fraud or mistake of material fact or law.” The court held that where the contract between a fine art exporter and a consignee capped the exporter’s liability at $40,000, payment of damages by the exporter to the consignee in excess of $40,000 was voluntary. Thus, in the exporter’s suit against a customs broker to recover for damages it paid to the consignee, the damages were limited to the cap set forth in the contract between the exporter and the consignee. (July 22, 2015)

In Darby Group Companies., Inc. v. Wulforst Acquisition, LLC, the New York Supreme Court, Appellate Division, 2d Department, addressed whether a release barred a cross claim alleging fraud. The court held that the contract between a company and a bank contained a provision releasing the bank from claims arising out of or relating to a promissory note and consolidated mortgage. Since this provision was a valid release, it acted as a complete bar to the company’s fraud claim. (July 22, 2015)

In Wong v. Luu, the Supreme Judicial Court of Massachusetts addressed the scope of a trial judge’s power to sanction an attorney for conduct that resulted in the failure of a potential settlement. In this case, one attorney’s letter solicitation of other potential creditors as clients scuttled a settlement in a complex multi-party dispute over the sale of three supermarkets, for which the trial judge had ordered that attorney to pay almost $240,000 in attorneys’ fees relating to the settlement that had fallen through. The court concluded that parties have no right to settlement, and a judge has no authority to sanction an attorney merely because a potential settlement is disrupted. (July 15, 2015)

In Morillo v. Monmouth County Sheriff’s Officers, the Supreme Court of New Jersey held that police officers who improperly charged and incarcerated the plaintiff with wrongful possession of a weapon that was lawfully registered to him were entitled to qualified immunity from claims that the officers violated the plaintiff’s civil rights because ambiguities in the statutory exemption for prosecution for unlawful possession of a handgun allowed for a reasonably competent officer to believe the charges were appropriate. (July 13, 2015)

In JF Capital Advisors, LLC v. Lightstone Group, LLC, the New York Court of Appeals addressed whether the statute of frauds applies to consulting services for the potential purchase of property. The court held the statute of frauds required a written contract when the advisors assisted with the negotiation of a business opportunity, but a written contract is not required if the advice concerns whether to initiate negotiations. (July 1, 2015)

In American Entrance Services, Inc. v. Roeder, the New York Supreme Court, Appellate Division, 1st Department, determined that competitors’ claims for misappropriation of trade secrets and unfair competition were time-barred, since the competitors had knowledge of defendants’ alleged use of their trade secrets beginning in 2006, more than seven years before they filed this lawsuit. The court found that, because of competitors’ knowledge, the continuing tort doctrine did not apply. (June 25, 2015)

In Carter's of New Bedford, Inc. v. Nike, Inc., the United States Court of Appeals for the First Circuit addressed whether a local retail clothing store, attempting to stop a prominent footwear maker from terminating the parties’ business relationship, was bound by a forum-selection clause in the footwear maker’s invoices. The court found the forum-selection clause valid and enforceable after considering whether (1) the clause is the product of fraud or overreaching; (2) enforcement is unreasonable and unjust; (3) its enforcement would render the proceedings gravely difficult and inconvenient to the point of practical impossibility; or (4) enforcement contravenes a strong public policy of the forum in which suit is brought, whether declared by statute or judicial decision. (June 24, 2015)

In West Pittston Borough v. LIW Investments, Inc., the Commonwealth Court of Pennsylvania considered whether a trial court may sanction (here, by incarceration) the president of a defendant corporation for the contempt of the corporation. The court held that the corporation’s president who was present at a hearing where an order was given, and who was listed with the Department of State as the corporation’s president could be held in contempt due to a corporation’s noncompliance, regardless of whether he currently held that office. (June 19, 2015) 

In Aquatic Pool & Spa Services, Inc. v. WN Weaver Street, LLC, the New York Supreme Court, Appellate Division, 2d Department, held that a “party cannot recover under a theory of quantum meruit where a valid and enforceable written contract governs the subject matter involved in the dispute.” The Court found that because the written contract provided for the payment of reasonable fees for extra material and labor, the contractor’s remedy with respect to additional labor and materials lies in a breach of contract claim rather than in quantum meruit. (June 17, 2015)

In Kotsovska v. Liebman, the Supreme Court of New Jersey addressed whether the Workers’ Compensation Act divests a trial court of jurisdiction to adjudicate the issue of a worker’s employment status once a defendant raises the exclusive remedy provision of the Workers’ Compensation Act as an affirmative defense. The court determined that, when there is a genuine dispute regarding a worker’s employment status, and the plaintiff elects to file a complaint only in the Superior Court, Law Division, the court has concurrent jurisdiction with the administrative tribunal to resolve the dispute. (June 11, 2015)

In Petriello v. Indresano, the Appeals Court of Massachusetts addressed whether a person has standing to apply for a harassment prevention order on behalf of another individual who was the recipient of abusive conduct by acting under a power of attorney executed by the recipient of the abusive conduct. The court concluded that a power of attorney can convey authority to seek a harassment prevention order and that the holder of the power of attorney has standing to seek such an order. (June 3, 2015)

In Justinian Capital SPC v. WestLB AG, the New York Supreme Court, Appellate Division, 1st Department, addressed the issue of whether assignment of notes from German nonparty Deutsche Pfandbriefbank (DPAG) to plaintiff was champertous. The court found the transaction was champertous in violation of Judiciary Law § 489 as the transfer was intended to allow plaintiff to pursue litigation on behalf of DPAG, who could not do so on its own for political reasons. The court noted that no reasonable finder of fact could find the transfer bona fide given that the transfer did not allow plaintiff to enforce all of the rights under the notes.  Rather, the transfer could only be understood as unlawful subcontracting of DPAG’s litigation to plaintiff for political reasons. (May 21, 2015)

In Borden v. Progressive Direct Insurance Company, the Appeals Court of Massachusetts was asked to address whether the “automobile business” exclusion in a personal automobile insurance policy applied to exclude coverage for a loss suffered during the course of an insured’s employment as a tow-truck driver. In accordance with the “reasonable expectations doctrine,” the court determined that the risk of using a non-owned vehicle for employment purposes falls outside the range of ordinary risks contemplated by insurers of personal automobiles, and therefore, the exclusion applied. (May 21, 2015)

In City and County of San Francisco, California v. Sheehan, the United States Supreme Court addressed the issue of whether local police officers were entitled to qualified immunity under 42 U.S.C. § 1983 for the plaintiff’s claims that the officers violated her Fourth Amendment rights by forcibly entering her home instead of accommodating her disability of mental illness. The officers had forcibly entered the plaintiff’s home because she was armed, mentally ill, and had been acting irrationally and threatening towards anyone who entered her home. The Court held that the officers were entitled to qualified immunity because, even if the plaintiff had a Fourth Amendment right to an accommodation for her disability, such right was not clearly established. Furthermore, the officers’ alleged failure to follow their training does not itself negate qualified immunity where it is otherwise warranted. (May 18, 2015)

In D & R Global Selections, S.L. v. Bodega Olegario Falcon Pineiro, the New York Supreme Court, Appellate Division, 1st Department, addressed whether a corporation’s “visits to New York to promote its wine constitute the transaction of business” in the state sufficient to give [New York] courts subject matter jurisdiction over the corporation. The court held that there was no subject matter jurisdiction under Business Corporation Law § 1314(b)(4) because “there [was] no substantial nexus between [the] claim for unpaid commissions in connection with the sales of that wine, pursuant to an agreement made and performed wholly in Spain, and those promotional activities.” (May 14, 2015)

In Barone v. Sowers, the New York Supreme Court, Appellate Division, 1st Department, addressed whether the trial court properly dismissed an LLC member’s complaint alleging demand futility. The court held that the complaint was properly dismissed because “[t]he demand requirement of Business Corporation Law § 626(c) also applies to members of New York limited liability companies,” and the LLC member “failed to make a presuit demand or adequately allege that demand was excused.” (May 14, 2015)

In Dime Bank v. Andrews, the Superior Court of Pennsylvania addressed whether a bank’s failure to comply with the ten-day notice requirement of Pennsylvania Rule of Civil Procedure 2952(b)(6) before commencing a debt collection action was fatal to the debt collection action. The court held that the bank’s failure to provide notice was not merely a “formal defect, mistake, or admission,” but was an essential prerequisite to the action. (May 8, 2015)

In Pitney Bowes Bank v. ABC Caging Fulfillment, the Superior Court of New Jersey, Appellate Division, considered whether N.J.S.A. 34:11-31 and -32, a New Jersey labor law statute, exempted unpaid wages from a debtor’s bank account from payment to a creditor. The court held that wages that were “due and owing” to the debtor’s employees before the creditor levied the funds were exempt from payment under the statute, but that wages that only became due after the levy were not. (May 8, 2015)

In McDonald v. Whitewater Challengers, Inc., the Superior Court of Pennsylvania addressed a conflict of laws analysis related to the enforceability of exculpatory clauses governing hazardous recreational activities. The court ruled in favor of applying Pennsylvania law, holding that Pennsylvania businesses should not be placed in jeopardy of liability exceeding that created by Pennsylvania law merely because a customer resides in a jurisdiction offering higher protection. (April 29, 2015)

In Juszczyszyn v. Taiwo, d/b/a Lid’s Lounge, the Superior Court of Pennsylvania addressed whether a police officer injured in the line of duty is an invitee or licensee. The court held that a police officer responding to a call was a licensee, and the business owner had a duty to warn the officer only of dangerous hidden conditions. Because the officer encountered an intoxicated and physically confrontational individual, the risk was obvious and known. Therefore, the officer could not establish a breach of duty by the business owner. (April 10, 2015)

In EMC Mortgage, LLC v. Biddle, the Superior Court of Pennsylvania addressed whether the trial court properly amended a previously entered default judgment to reflect additional costs and interest incurred since entry of the judgment without a hearing pursuant to Pa. R. Civ. P. 1037. The court held that the trial court had the power to amend the judgment because it has inherent power to amend a judgment before the judgment is discharged or satisfied, but that the trial court’s calculation of additional damages was improper. (April 15, 2015)In Green Acres Rehabilitation and Nursing Center v. Sullivan, the Superior Court of Pennsylvania affirmed the trial court’s denial of an agent’s petition to strike a default judgment in favor of a nursing center facility. In making its determination, the court addressed whether judgment was properly entered against the agent in her individual capacity rather than representative capacity, given that she acted under a power-of-attorney (POA) for a resident of the nursing center. The court reasoned that an agent acting under a POA can be held personally liable for her acts or omissions under the POA. The court also considered whether the trial division or the Orphan’s Court Division had subject matter jurisdiction over the case, and reasoned that the trial division had jurisdiction because the case involved allegations of breach of contract for the agent’s failure to pay debts owed to the nursing center. Finally, the court addressed whether the nursing center had complied with notice requirements prior to seeking entry of default judgment, and determined that the nursing center had “substantially complied” with the applicable notice requirements. (April 13, 2015)

In Kennedy v. Yousaf, the New York Supreme Court, Appellate Division, 1st Department, discussed the issue of personal jurisdiction.  The Court held that plaintiffs’ own New York activities relating to their agreement with defendants cannot be attributed to defendants. The fact that defendants negotiated the agreement and communicated with plaintiff via email and telephone in New York did not “constitute the transaction of business in New York,” where plaintiffs failed to show that defendants intended to take advantage of New York’s unique resources or that defendants’ two appearances in New York had a substantial relationship to plaintiffs’ claims. (April 14, 2015)

In CNB Realty v. Stone Cast, Inc., the New York Supreme Court, Appellate Division, 3d Department, held that in so much as lack of standing does not implicate subject matter jurisdiction, it would not be sufficient to vacate a judgment for lack of jurisdiction under CPLR 5015(a)(4). Further, the court held that by failing to raise the lack of standing as an affirmative defense, defendants waived their standing challenge. (April 16, 2015)

In Pennsylvania Department of Education v. Bagwell, the Commonwealth Court of Pennsylvania addressed whether: 1) the Office of Open Records improperly directed the Department of Education to disclose emails between the former Secretary of Education and counsel at the Office of General Counsel, and 2) the requester had a full opportunity to develop the record relating to release of these emails before the Office of Open Records. The Department of Education had denied disclosure of these emails under the attorney client privilege, work product privilege and pre-decisional deliberative exception and the Office of Open Records denied the requester a hearing to address these claims. The court held its disposition on attorney client and work product privilege in abeyance to afford the requester an opportunity to obtain a complete record before the Office of Open Records and that the Department of Education failed to prove material facts exists warranting application of the pre-decisional deliberative exception. (April 16, 2015)

In Silvagni v. Shorr, the Superior Court of Pennsylvania addressed the viability of a client’s legal malpractice suit against his former counsel in relation to a settlement agreement. The court held that unless the client specifically pled, and could prove, that his former counsel fraudulently induced him into signing the settlement agreement, or could prove that his counsel failed to explain the effect of that settlement, or that the settlement was somehow legally deficient, the client is barred from maintaining an action in negligence against his former counsel. (March 27, 2015)

In Ladenburg Thalmann & Co., Inc. v. Signature Bank, the New York Supreme Court, Appellate Division, 1st Department, addressed the issue of whether a letter of credit requiring originals of all documents to trigger payment is satisfied by a true copy of one original amendment to the letter of credit. The court found that the defendant bank’s refusal to honor the letter of credit based on a missing amendment was arbitrary, noting that the amendment was no longer material in light of later amendments. While the language of the letter of credit gave the defendant bank a basis to demand strict compliance with the requirements for submitting documents in order to trigger the letter of credit, the court noted there was no possible way that a true copy of the amendment could have misled defendant bank. (March 19, 2015)

In Maida v. Kuskin, the Supreme Court of New Jersey addressed the circumstances in which a criminal defendant in municipal court can request a civil reservation, which prevents a guilty plea from being used in a related civil proceeding.  The court held that the request for a civil reservation must be made in open court at the time of the guilty plea, and that a civil reservation may not be entered if the prosecutor or victim demonstrates good cause. (March 19, 2015)

In Savitt v. Greenberg Traurig, LLP, the New York Supreme Court, Appellate Division, 1st Department, addressed the evidence necessary for a client to state a claim against an attorney under Judiciary Law § 487.  The court held that, because of the absence of allegations that the attorney knew his advice was false and thus knowingly and intentionally misled the client, the client failed to show the requisite deceit that reaches the level of egregious conduct or a chronic and extreme pattern of behavior. (March 12, 2015)

In Artic Cat Sales, Inc. v. State Bd. of Vehicle Mfrs., Dealers and Salespersons, the Commonwealth Court of Pennsylvania found the Board erred when it upheld the protest of an existing vehicle dealer to the appointment of another dealer located approximately nine miles from the existing dealer.  The court examined a disputed finding of fact and the burden of proof which falls upon the party challenging the presumed valid appointment of another dealer pursuant to Section 27 (c) of the Dealer Act. The court concluded that the substantial evidence did not support the Board’s finding that the appointment of the other dealer would lead to ruinous competition which would ultimately be a detriment to the consuming public and that the existing dealer failed to meets its evidentiary burden to overcome the presumed validity of the appointment of the additional dealer. (February 23, 2015)

In Rodriguez v. Kravco Simon Co., the Superior Court of Pennsylvania addressed the issue of whether the dried nature of a puddle from a spill was sufficient evidence of the defendant mall’s constructive knowledge of the dangerous condition.  The court held that proof of a sticky or dry puddle, without evidence of how long it took for the liquid in question to become sticky or dry, was insufficient to conclude that the spill was present long enough to warrant a finding of constructive notice. (February 20, 2015)    

In Moraes v. Wesler, the Superior Court of New Jersey, Appellate Division, found the denial of a woman’s motion to consolidate her two personal injury cases resulting from car accidents which occurred approximately two years apart was a misapplication of discretion because the record disclosed no significant or complex liability issue in either action, overlooked that trying the actions separately could result in inconsistent verdicts, and provided no appropriate explanation for the denial. (February 23, 2015)

In Carlyle Investment Management LLC v. Moonmouth Co., the United States Court of Appeals for the Third Circuit addressed the applicability of a forum selection clause to non-signatory parties.  Using a three-part test, the court found that a non-signatory to an agreement can be bound by its forum selection clause if the forum selection clause is valid, the non-signatory is a third-party beneficiary of the agreement or closely related to the agreement, and the claim arises from the non-signatory’s status related to the agreement.  Focusing on the second factor, the court considered the non-signatory’s ownership of the signatory, its involvement in the negotiations, the relationship between the two parties and whether the non-signatory received a direct benefit from the agreement.  Separately, the court found that a non-signatory has standing to invoke a forum selection clause when it is closely related to one of the signatories and the non-party’s enforcement is foreseeable by virtue of their relationship. (February 25, 2015)

In Front, Inc. v Khalil, the New York Court of Appeals addressed whether statements made by attorneys prior to the commencement of litigation are privileged.  Prior to the commencement of the action, an attorney sent a letter to the defendant demanding that he cease and desist using the attorney’s client’s confidential and proprietary information, among other things. The defendant then commenced a third-party action against the attorney for libel based upon the statements made in the letter.  The court held that because the letters were written in the preliminary stages of anticipated litigation, they were protected by a qualified privilege. (February 24, 2015)

In Asmar v. 20th and Seventh Associates, LLC, the New York Supreme Court, Appellate Division, 1st Department, addressed what documentary evidence is required to support a pre-answer motion to dismiss. The only submission in support of the pre-answer motion to dismiss was an affidavit from the movant’s vice president, which did not constitute “documentary evidence” within the meaning of CPLR 3211(a)(1).  The court therefore held that the affidavit was insufficient to warrant dismissal of the complaint. (February 26, 2015)

In Hoffman v. Verizon Wireless, Inc., the New York Supreme Court, Appellate Division, 2d Department, found that an employer may be liable to a customer for disclosure of private photographs stored electronically on her cell phone after she took her cell phone to a retail store owned by the employer for repairs. The court stated that, pursuant to the doctrine of respondeat superior, an employer can be held vicariously liable for torts committed by an employee acting within the scope of employment, including intentional torts and negligent torts. (February 18, 2015)

In Global Tel*Link Corporation v. Department of Corrections, the Commonwealth Court of Pennsylvania addressed the merits of a bid protest in the context of a contract selection by defendant Department under the Commonwealth Procurement Code.  Because defendant Department properly considered the poor technical demonstration of plaintiff bidder, and because the winning bidder was properly permitted to participate in plaintiff bidder’s objection, the court dismissed the bid protest.  (February 6, 2015)

In Robert and Ardis James Foundation v. Daniel Maxwell Meyers, the Appeals Court of Massachusetts considered whether there was a breach of an implied covenant of good faith and fair dealing when a party to a contract refused the other party’s unilateral request to terminate the agreement by selling the stock in question.  The agreement contained no provisions governing when the stock was to be sold, only that the stock was to be sold.  The court held the trial judge erred in considering only the expectations of the party requesting the termination and not the expectations of the party who wished the contract to continue when judgment was entered against the party holding the stock.  However, because the terms of the original agreement contemplated the contract would terminate with the sale of the stock, the matter was remanded so judgment could be amended with a declaration clarifying the parties’ obligations as they arise from the implied covenant of good faith and fair dealing. (February 12, 2015)

In Baylson v. Genetics & IVF Institute, the Superior Court of Pennsylvania held that in a Dragonetti Act complaint, venue was proper in more than one jurisdiction. The action under the Dragonetti Act for wrongful use of civil proceedings was brought in Philadelphia County while the underlying lawsuit was decided in Montgomery county. Philadelphia County was a proper venue despite the venue of the underlying lawsuit because the defendant corporation operated an office in Philadelphia County. (May 9, 2015)

In C. Mahendra (NY), LLC v. National Gold & Diamond Center, Inc., the New York Supreme Court, Appellate Division, 1st Department, discussed whether two business transactions made over the telephone is sufficient to establish long-arm personal jurisdiction under CPLR 302(a)(1).  The court held that CPLR 302(a)(1) is a “single act statute.”  Accordingly, physical presence is not required and one New York transaction is sufficient as long as the transaction is “purposeful and substantially related to the claim.” (February 10, 2015)

In American Express Bank FSB v. Najieb, the New York Supreme Court, Appellate Division, 1st Department, discussed the standard of discretion for a motion court to strike an answer for failure to comply with court-ordered discovery.  The court held that in order to grant such a motion, a showing must be made that the “noncompliance was willful, contumacious or in bad faith.” (February 10, 2015)

In Drake Manufacturing Co., Inc. v. Polyflow, Inc., the Superior Court of Pennsylvania addressed the capacity of an improperly registered foreign company to sue in Pennsylvania.  The court held that: (1) a business’s failure to obtain a certificate of authority to do business in Pennsylvania as a foreign corporation divests the entity of the capacity to sue in Pennsylvania and (2) an opponent does not waive the issue of capacity to sue by raising the argument in an answer and new matter rather than by preliminary objection. (January 23, 2015)

In Gibellino v. Manchester Twp., the Commonwealth Court of Pennsylvania addressed whether a resident may sue a township for breach of contract and negligence stemming from the township’s alleged negligent installation of certain backwater valves that resulted in damage to his property.  The court held that the gist of the action doctrine prevents a resident from bringing a breach of contract action where the only damages resulted from alleged negligent conduct of the township and its contractor.  Further, the court held that the alleged dangerous condition was the inadequacy of the sewer system to handle surcharges in time of high water flow and did not relate to negligent construction, which would have brought the claim within an exception to immunity under the Tort Claims Act. (January 23, 2015)

In AZTE, Inc. v. Auto Collection, Inc., the New York Supreme Court, Appellate Division, 2nd Department, addressed whether a 90% owner of a company could be held liable for breach of contract under a “piercing the corporate veil” theory when his company failed to either deliver certain vehicles or refund payments following a sales contract. The court held that the defendant could be held personally liable, because the evidence established not only his dominion and control of the company generally, but also his dominion and control over the transactions at issue. (January 28, 2015)

In Mosab Construction Corp. v. Prospect Park Yeshiva, Inc., the New York Supreme Court, Appellate Division, Second Department, addressed whether a writing constituted an acknowledgment of debt under General Obligations Law § 17-101. The court held that the writing did not constitute an acknowledgment under the statute (so as to restart the statute of limitations) because the writing did not acknowledge a debt owed by the defendant corporation to a construction company or that the defendant corporation intended to pay the construction company. (January 21, 2015)

In Nunez v. Channel Grocery & Deli Corp., the New York Supreme Court, Appellate Division, Second Department, addressed the right to recover under a promissory note. The court held that the individual could recover on the note because he produced the subject note and “proof of the defendant[] [corporation’s] failure to make payments on the note according to its terms,” and the defendant corporation’s conclusory allegations of fraud were insufficient to defeat the individual’s entitlement to judgment. (January 21, 2015)

In K-Bay Plaza, LLC v. Kmart Corp., the New York Supreme Court, Appellate Division, 1st Department, addressed when the statute of limitations begins to run on a cause of action for fraud.  The court held that because the alleged fraud is based on the substitution of pages in the lease just before its execution, the limitations period began to run at the time of the execution of the lease.  Since the suit was filed after the statute of limitations had run and the landlord could have discovered the alleged fraud with reasonable diligence, the lawsuit was untimely filed. (December 30, 2014)

In 80-02 Leasehold, LLC v. CM Realty Holdings Corp, the Supreme Court of New York, Appellate Division, 2d Department, found that personal liability is not limited to the person who executes a contract on behalf of a dissolved corporation, but extends to the officers of the dissolved corporation. The court explained that, upon dissolution by the State of a corporation for nonpayment of franchise taxes, a corporation’s legal existence terminates and it is prohibited from carrying on new business. (December 17, 2014)

In Dublirer v. 2000 Linwood Avenue Owners, Inc., the Supreme Court of New Jersey addressed whether a co-op board’s regulation precluding residents from soliciting or distributing written materials to other residents violated the free speech guarantee of New Jersey’s Constitution.  The court held that, in situations involving free speech for residents of a private common-interest community, courts must focus on the “purpose of the expressional activity” in relation to the use of the property and conduct a general balancing of speech and property rights.  The court found that the minimal intrusion of placing a leaflet under residents’ doors does not outweigh a resident’s right to speak about the governance of their community, particularly in light of the fact that the co-op board itself distributed leaflets “attacking” the board’s opponents. (December 3, 2014)

In Skyhook Wireless, Inc. v. Google Inc., the Appeals Court of Massachusetts addressed whether a party’s assertion of contractual rights in a competitive marketplace could constitute tortious interference with a third-party competitor’s advantageous business relationship and whether such conduct violated M. G. L. c. 93A because the competitor was located in Massachusetts.  The court held that there was no evidence of improper motive and means in the assertion of a party’s legal rights in business competition and that Chapter 93A was not triggered by the competitor’s mere presence in Massachusetts. (November 6, 2014)

In Indymac Venture, LLC v. Nagessar, the New York Supreme Court, Appellate Division, Second Department, addressed the issue of whether a declaratory judgment action may be dismissed pursuant to CPLR 3211(a)(1) prior to the service of an answer.  The court noted that when such relief is requested, the only issue before the court is whether a cause of action for declaratory relief is set forth, not whether the plaintiff is entitled to a favorable declaration.  Accordingly, the court denied the motion to dismiss. (October 22, 2014)

In Courtney Douglass v. Convergent Outsourcing, the United States Court of Appeals for the Third Circuit addressed whether placing a consumer’s account number on the face of a debt collector’s envelope violated the Fair Debt Collection Practices Act (FDCPA). The court found that a consumer’s account number did not fall into the “benign language” exception, as it could be used to identify the consumer as a debtor and its exposure had the potential to cause harm to the consumer. The court concluded that the FDCPA proscribed not only potentially harassing and embarrassing language, but also consumers’ identifying information. (October 10, 2014)

In Barron Chiropractic & Rehabilitation, P.C. v. Norfolk & Dedham Group, the Supreme Judicial Court of Massachusetts addressed whether a party may continue to pursue a claim pursuant to G. L. c. 90, § 34M for unpaid personal injury protection (PIP) benefit payments (and for reasonable attorney’s fees and costs) from an automobile insurer where the unpaid party refused the insurer’s tender of amounts due and payable after its complaint for breach of contract against the insurer already had been filed.  Section 34M gives a party the right to pursue a claim for unpaid PIP benefits, if an insurer failed to pay the PIP benefits within 30 days after the amounts became due and payable, but, here, the insurer’s tender came after the unpaid party brought suit. Because the unpaid party’s refusal of the insurer’s late tender did not fully satisfy the unpaid party’s rights under the statute, the court held that the insurer was not entitled to summary judgment and that the unpaid party could pursue its claim. (October 15, 2014)

In Flintkote Company v. Aviva PLC, the United States Court of Appeals for the Third Circuit addressed whether, under Delaware law, a non-signatory to a contract could be compelled to comply with an arbitration clause in the contract through the theory of equitable estoppel.  The court held that that the non-signatory was not equitably bound to the arbitration clause because there was no clear and convincing evidence that the non-signatory “embraced” the contract. (October 9, 2014)

In Kleinberg v. 516 West 19th LLC, the New York Supreme Court, Appellate Division, 1st Department, held that the claim against a consulting company for contribution was properly dismissed because “contribution is unavailable where . . . the underlying contractual claims seek purely economic damages.” (October 9, 2014)

In Falor v. Southwestern Pennsylvania Water Authority, the Commonwealth Court of Pennsylvania addressed whether a business owner’s claim for damages arising from commercial property damage caused by pipes bursting in her building was barred by the Political Subdivision Tort Claims Act. The court held that, because the water leak was allegedly caused by the Water Authority’s conduct in not shutting off water to the property as opposed to a defect in the Water Authority’s tap, the business owner’s claim did not fall under the utility service facilities exception to governmental immunity. (October 9, 2014)

In Orix Venture Finance LLC v. Eagle Ltd., the New York Supreme Court, Appellate Division, First Department, addressed whether the acceleration language contained in a loan purchase agreement obligated the borrowers to make full payment of all obligations due under the agreement.  The court held that the acceleration language did require the borrowers to make full payment of all obligations, and further noted that the borrowers’ interpretation of the acceleration language-that the acceleration term applied only to purchase loan installments that had already become due and remained unpaid- disregarded general contract principles that the contracting parties’ intent be gleaned from their written agreement as a whole. (September 23, 2014)

In Stephan v. Waldron Electric Heating and Cooling LLC, the Superior Court of Pennsylvania held that an enforceable contact existed between a homeowner and an electrician for an electrical outlet repair.  Despite the homeowner’s position that he was overcharged for the services, the court held that the contract was enforceable because the terms, including costs, were agreed upon verbally in advance and an agreement was signed after the work was performed.  The court explained that the fact that the costs were inserted into the agreement after the work was completed, does not make the contract fail for indefiniteness. (September 19, 2014)

In Atalese v. U.S. Legal Services Group, L.P., the Supreme Court of New Jersey held that an arbitration provision must clearly and unambiguously notify the consumer that she is waiving the right to seek relief in a court of law. The court held that the arbitration agreement in this case, pertaining to debt adjustment services, was unenforceable because it failed to notify the consumer that she was surrendering her right to relief in a judicial forum. (September 23, 2014)

In Maeker v. Ross, the Supreme Court of New Jersey held that the 2010 Statute of Frauds which requires palimony agreements to be in writing and made with the advice of counsel does not apply retroactively to void pre-existing oral palimony agreements.  The statute contained no language showing an intent to extinguish previously formed, legally authorized, oral palimony agreements.  The court further held that the terms of one party’s executed will which contains language supporting the existence of an oral palimony agreement cannot serve as basis to prove the existence of such an agreement. (September 25, 2014)

In Massachusetts State Auto. Dealers Ass., Inc.. v. Tesla Motors MA, Inc., the Supreme Judicial Court of Massachusetts addressed whether a coalition of automobile dealerships had standing to bring a M. G. L. c. 93B action against an automobile manufacturer with which the dealerships were not affiliated.  Chapter 93B was designed to protect dealerships from potentially oppressive tactics from affiliated brand manufacturers and distributors.   The court held that, based on legislative intent, the 2002 amendments to the statute did not create standing for the dealership coalition against the unaffiliated manufacturers. (September 15, 2014)

In North Star Contracting Corp. v. MTA Capital Construction Company, the New York Supreme Court, Appellate Division, First Department, addressed whether a “special relationship” existed between a construction manager and a subcontractor such that the subcontractor could assert a cause of action against the construction manager for negligent misrepresentation.  The court held that the subcontractor adequately alleged, based on representations made during the course of the contract, that the relationship between the construction manager and the subcontractor approached privity. (September 18, 2014)

In Friedland Realty, Inc. v. 416 W, LLC, the New York Supreme Court, Appellate Division, Second Department, addressed the pleading requirement for reformation of a written contract based on mutual mistake.  The court held that the defendant failed to plead its counterclaim for reformation with the requisite particularity or show how the parties’ alleged oral modifications “differed from the terms of the written agreement.”  Thus, the court upheld the dismissal of defendant’s counterclaim for reformation. (September 10, 2014)

In Aleynikov v. The Goldman Sachs Group, Inc., the United States Court of Appeals for the Third Circuit addressed whether a former programmer charged with stealing his employer’s trade secrets was entitled to indemnification and advancement as an officer of the company, which would require the employer under its bylaws to cover his legal expenses.  The court concluded that the bank’s bylaws were ambiguous as to whether the former programmer’s title as vice president made him an “officer” eligible to recoup legal fees, and that the relevant extrinsic evidence raised genuine issues of material fact precluding summary judgment. (September 3, 2014)

In Douglass v. Convergent Outsourcing, the United States Court of Appeals for the Third Circuit addressed whether disclosure of a consumer’s account number on the face of a debt collector’s envelope violates § 1692f(8) of the Fair Debt Collection Practices Act (FDCPA).  The court held the consumer’s account number was not benign information because it is personal identifying information and therefore violated § 1692f(8). (August 28, 2014)

In Baby Phat Holding Co., LLC v. Kellwood Co., the New York Supreme Court, Appellate Division, First Department, addressed the issue of whether an arbitration provision in a contract applies to a non-party to the contract.   The plaintiff entered into a contract with the parent company’s subsidiary and the contract required the parties to submit all disputes to binding arbitration.  The plaintiff made a demand for arbitration to the parent company and when that was rejected, brought suit for breach of contract.   The court held that the plaintiff could proceed in court, because the arbitration provision did not concerns claims filed against the parent company. (August 21, 2014)

In Morrison Informatics, Inc. v. Members 1st Federal Credit Union, the Superior Court of Pennsylvania held that individual shareholders lacked standing to sue in a lawsuit alleging fraud and embezzlement of corporate funds as the complaint alleged only that the plaintiff-company lost funds.  The court further held that the plaintiff-company should have been given leave to amend to substitute its bankruptcy trustee for the plaintiff-company because the amendment was not prejudicial to the defense and did not have the effect of adding a new party or new cause of action. (August 12, 2014)

In LightLab Imaging, Inc. v. Axsun Technologies, Inc., the Supreme Judicial Court of Massachusetts addressed whether expert testimony related to future lost profits over a twenty-four year period was admissible, where the testimony was based on an uninvented product line and an unprofitable sales history for other products by the injured corporation.  The court held that the testimony was too speculative to be reliable as evidence of future lost profits, particularly where there was no evidence that the hypothetical product line would have cleared domestic and international regulations. (July 28, 2014)

In O’Boyle v. Borough of Longport, the Supreme Court of New Jersey adopted the common interest rule which provides that materials protected as a private attorney’s work product remain privileged despite disclosure to a third-party municipal attorney where the materials are shared in a way that is calculated to preserve confidentiality, in anticipation of litigation and in furtherance of a common purpose. (July 21, 2014)

In Wal-Mart Stores, Inc. v. Indiana Electrical Workers Pension Trust Fund, the Supreme Court of Delaware addressed whether Wal-Mart produced all of the documents that were responsive to a pre-suit document demand made pursuant to title 8, section 220 of the Delaware Code.  The court held that Wal-Mart’s refusal to produce certain documents related to bribery allegations against officials of a corporate subsidiary was without merit, and that the documents demanded were “necessary and essential” and not overly broad. (July 23, 2014)

In Nolt v. T.S. Calkins & Associates, LP., the Superior Court of Pennsylvania examined whether a lease for oil and gas rights is subject to the statute of frauds under the Landlord Tenant Act or the general statute of frauds.  The court held that, despite use of the term, “lease,” oil and gas leases are not controlled by landlord/tenant principles.  Instead, the court held that oil and gas leases involve the conveyance of property rights to the oil and gas.  The court concluded that the execution of the agreement by the landowner alone did not violate the general statute of frauds. (July 7, 2014)

In Archstone v. Tocci Bldg. Corp. of N.J., Inc., the New York Supreme Court, Appellate Division, Second Department, addressed whether a surety for a general contractor pursuant to a performance bond was required to indemnify the plaintiffs for property damages sustained as a result of extensive water intrusion.  The court held that the plaintiffs failed to strictly comply with the performance bond’s conditions precedent, so the surety was not liable to the plaintiffs for damages. (July 2, 2014)

In SPX Corp. v. Garda USA Inc., the Supreme Court of Delaware addressed when an arbitration award may be vacated when it is argued that the arbitrator manifestly disregarded the law. The court held that manifest disregard occurs when the arbitrator consciously chose to ignore a legal principle, but not merely misconstrued a contract term, even if that term was clear and unambiguous. (June 16, 2014)

In Certain Interested Underwriters at Lloyds, London v. LeMons, the Massachusetts Court of Appeals considered whether an insurance policy’s assault and battery exclusion, excludes assaults and batteries committed by third parties on the insured property.  The policy excluded coverage for “any act or omission in connection with prevention or suppression of an assault or battery, committed by any Insured or an employee or agent of the insured.”  The court held that the policy excludes coverage from an assault and battery, regardless of who committed the assault and battery. (June 4, 2014)

In JEP, LLC v. Dialysis 4 Career, LLC, the Supreme Court of New York, Appellate Division, Second Department, addressed whether the plaintiff-landlord was liable to the defendant-tenant for breach of contract when the defendants discovered that the certificate of occupancy for the building precluded them from operating a medical training facility on the premises. The court found that the defendants failed to demonstrate as a matter of law that it was the plaintiff’s responsibility to obtain a certificate of occupancy that would permit the defendants to use the premises as a medical training facility. (June 4, 2014)

In R2 Investments, LDC v. Ichan, the New York Supreme Court, Appellate Division, First Department, addressed, in an action contesting a merger, the viability of breach of fiduciary duty claims where: (1) the claims went beyond issues relating to valuation and the inadequacy of merger price and adequately asserted a nexus between the defendants’ alleged fiduciary duty breaches and the merger; and (2) the plaintiffs alleged that their voting rights were diluted as a result of a recapitalization that made one of the individual defendants a shareholder of the target company with super voting rights.  The court allowed the claims to go forward and found that the plaintiffs retained standing for direct claims, not just derivative claims, after the merger.  The court further held that Delaware’s “entire fairness” standard of review is applicable to the breach of fiduciary duty claims. (May 29, 2014)

In Abu Dhabi Commercial Bank PJSC v. Saad Trading, LLP, the New York Supreme Court, Appellate Division, First Department, addressed the enforcement of a judgment entered by an English court in favor of the plaintiff bank, where the defendant failed to appear. The plaintiff filed the action under CPLR article 53, which, based on principles of international comity, recognizes foreign money judgments, allowing New York courts to enforce judgments entered by foreign jurisdictions.  While the defendant argued that the action should be dismissed for lack of personal jurisdiction and forum non-conveniens, the court held that the defendant’s liability to the plaintiff satisfied the due process requirements and therefore there was no unfairness to the defendant if the plaintiff were to obtain an order in New York recognizing the enforcement of the foreign judgment. (May 27, 2014)

In K.G.M. Custom Homes, Inc. v. Prosky, the Supreme Judicial Court of Massachusetts addressed whether a buyer had the right to elect either specific performance of the purchase and sale agreement or liquidated damages where the seller breached by anticipatory repudiation and by failing to act in good faith.  Because Massachusetts recognizes the option of electing remedies and because specific performance of the contract would have cost the buyer more than it anticipated, the court held that the buyer rightfully elected to receive liquidated damages. (May 29, 2014)

In Department of Labor & Industry v. Heltzel, the Commonwealth Court of Pennsylvania addressed the grant of a request for information by the Office of Open Records (OOR) based on the federal Emergency Planning and Community Right-to-Know Act (EPCRA) instead of the Pennsylvania Right to Know Law (RTKL).   The court held that the OOR has the authority to interpret laws other than the RTKL, but that, because the request was made under the RTKL and not the EPCRA, the OOR was required to evaluate the exceptions under the RTKL. (May 5, 2014)

In Stone v. Noble Constr. Mgt., Inc., the New York Supreme Court, Appellate Division, Second Department, addressed the circumstances under which a party can bring a judicial action to stay arbitration proceedings, pursuant to CPLR 7503, on the ground that a valid arbitration agreement did not exist.  The court held that once a party participates in an arbitration, it cannot then seek to stay the arbitration proceedings because “such ‘forum-hedging’ is incompatible with the legislative policy underlying CPLR 7503(b).” (April 16, 2014)

In LoPresti v. Wells Fargo Bank, N.A., the Superior Court of New Jersey, Appellate Division, addressed whether a bank is entitled to collect a prepayment penalty on a commercial loan to business owners.  In reviewing New Jersey’s Prepayment Law, N.J.S.A. 46:10B-1-11.1, the court ruled that banks are entitled to collect a prepayment penalty as the Prepayment Law’s restrictions on such penalties apply only to individual consumers, not commercial mortgagors.  The court reasoned that the Legislature recognized the need to protect individual mortgagors from long-term mortgages with excessive interest rates, whereas more sophisticated commercial mortgagors need no such protection. (April 8, 2014)

In Brown v. The New York City Health & Hospitals Corporation (North Central Bronx Hospital), the New York Supreme Court, Appellate Division, First Department, dismissed a cause of action for failure to comply with General Municipal Law § 50-e, which requires notice of claim as a condition precedent to the commencement of an action against a public corporation.  The court held that the plaintiff’s infancy and claimed ignorance of the law did not present a reasonable excuse for the delay in filing a notice of claim. (April 10, 2014)

In RK Solutions, LLV v. George Westinghouse Information Technology High School, the New York Supreme Court, Appellate Division, First Department, addressed whether, to state a claim for unjust enrichment, a complaint must plead the alleged benefit received by the allegedly enriched party.  The court held that a complaint that fails to articulate an alleged benefit is subject to dismissal. (April 3, 2014)

In Bakwin v. Mardirosian, the Massachusetts Supreme Judicial Court addressed whether money damages should have been entered as a judgment against a debtor-spouse rather than an attachment of a one-half interest in property, held by the spouses as tenants by the entirety, after being returned to pre-fraudulent transfer status.  The court held that, because Massachusetts favors protection of an innocent non-debtor spouse’s interest in the primary residence, the order was appropriate pursuant to the equitable remedies available under the Uniform Fraudulent Transfer Act, G. L. c. 109A. (April 2, 2014)

In Biotronik A.G. v. Conor Medsystems Ireland, Ltd., the New York Court of Appeals addressed whether lost profits sought in a breach of contract claim constituted consequential damages subject to a damages limitation provision in a contract in the context of a distribution agreement for medical devices.  The court held that the damages had to be evaluated within the context of the agreement and that under the parties’ exclusive distribution agreement, the lost profits constituted general, not consequential damages because they were the natural and probable consequence of the defendant’s breach. (March 27, 2014)

In Scher v. Stendhal Gallery, Inc., the New York Supreme Court, Appellate Division, First Department, addressed whether an artist or the artist’s former exclusive agent, a gallery, owned prints made from the artist’s paintings that were paid for by the gallery and that remained unsold after the termination of the parties’ relationship.  The court held that because the parties’ initial written agreement provided that the gallery would act as the exclusive agent in matters relating to any future deal for the exhibition and sale of prints published by the gallery, when the gallery paid for the prints, it did so as the artist’s agent and, hence fiduciary, and thus the prints were the artist’s property because an agent cannot be permitted to deal in a matter related to its agency for its own account and for its own benefit. (March 27, 2014)

In Town of Hanover v. New England Regional Council of Carpenters, the Massachusetts Supreme Judicial Court addressed whether providing legal support to litigants without being a named party constitutes “petitioning activity” and is thus protected by the Massachusetts Anti-SLAPP statute, which permits litigants to seek dismissal of any claim based on acts undertaken as part of the constitutional right to petition the government.  The court held that the defendant’s support of litigants, namely its commencement and maintenance of the prior litigation and its providing of advice and legal counsel to the litigants, constitutes protected petitioning activity. (March 25, 2014)

In New Jersey Realty Concepts LLC v. Mavroudis, the Superior Court of New Jersey, Appellate Division, addressed whether a debtor-corporation's interest in rents from a property it co-owns with another entity as tenants in common may be levied upon by a creditor.  The court held that rents due to the debtor-corporation could be reached by execution.  The court reasoned that, since a special fiscal agent, not a receiver, was appointed to oversee disbursements, the rents collected by the corporation could be reached by execution.  The court pointed out that, had a receiver been appointed, the rents could not be reached by execution because the rents would be deemed “in the custody of the law.” (March 19, 2014)

In Seitel Data, Ltd. v. Center Township, the Commonwealth Court of Pennsylvania addressed the scope of its original jurisdiction under the Unconventional Gas Well Impact Fee Act (the Act).  A corporation filed a petition for injunctive relief against three municipalities seeking to declare invalid or enjoin the enforcement of contractual agreements and/or resolutions that were alleged to be preempted by the Act.  The court held that because none of the defendant-municipalities had enacted ordinances that regulated oil or gas operations in violation of the Act, the court lacked original jurisdiction to hear the corporation’s petition. (March 7, 2014)

In Assured Guaranty Municipal Corp. v. DLJ Mortgage Capital, Inc., the New York Supreme Court, Appellate Division, First Department, addressed whether plaintiff’s remedies were limited by the terms of a pooling and servicing agreement.  The court held that “‘the best evidence of what parties to a written agreement intend is what they say in their writing.’”  Moreover, where the parties to the agreement are sophisticated entities assisted by counsel, failure to include a particular provision in the contract will be construed as an intentional exclusion. (February 27, 2014)

In Employers Insurance Company of Wausau v. National Casualty Company, the United States Court of Appeals for the First Circuit addressed whether the preclusive effect of an arbitration decision was a question for a court or for an arbitrator in a subsequent arbitration involving similar issues.  The court held that, where the court that confirmed the enforceability of an arbitration award did not address the merits of the award, the arbitration decision’s preclusive effect was arbitrable in subsequent arbitration proceeding because any decision by the arbitrator as to the preclusive effect does not interfere with the court’s authority. (February 26, 2014)

In Heffner v. Murphy, the United States Court of Appeals for the Third Circuit addressed the constitutionality of the “one-and-a-branch” limitation in Pennsylvania’s Funeral Director Law, 63 Pa. C.S. § 479 (FDL).  The court held that the “one-and-a branch” limitation in the FDL, which restricts licensees to possessing an ownership interest in one funeral establishment with only a single “branch” location, does not violate the Dormant Commerce Clause or the Substantive Due Process Clause of the United States Constitution. (February 19, 2014)

In Credit Agricole Corporate and Investment Bank v. BDC Finance, LLC, the New York Supreme Court, Appellate Division, First Department, addressed the viability of a defamation action for public statements made by opposing counsel in connection with ongoing litigation. The court found that the statements are privileged because made in connection with a judicial proceeding, and, alternatively, that a reasonable reader would not interpret the statements as concerning the complainants. (February 20, 2014)

In Stonhard v. Blue Ridge Farms, LLC, the New York Supreme Court, Appellate Division, Second Department, addressed the defense of agency for personal liability under a contract.  The court held that an agent who is acting as an agent for an undisclosed principal is personally liable under the contract. (February 13, 2014)

In Wells Fargo Bank N.A. v. Webster Business Credit Corporation, the New York Supreme Court, Appellate Division, First Department, addressed whether a contract allowed for inter-party indemnification for attorney’s fees where the provision at issue did not evince an “unmistakably clear” intent to waive the American Rule (providing generally that each party is responsible for their own fees in litigation) for litigation between themselves. Finding that the contract did not allow for indemnification for the defendant, the court also held that the plaintiffs’ previous assertion of their own claim for contractual indemnification did not judicially estop them from denying that the defendant was entitled to indemnification of attorneys’ fees under their contract and that the plaintiffs’ prior claim for contractual indemnification did not, standing alone, constitute a judicial admission that attorneys’ fees were recoverable in inter-party disputes. (January 23, 2014)

In Caporusso v. New Jersey Department of Health and Senior Services, the Superior Court of New Jersey, Appellate Division, held that, under the New Jersey Compassionate Use Medical Marijuana Act, the New Jersey Department of Health and Senior Services is required to fulfill its reporting requirements under the Act but the alleged failure to comply with the Act did not violate due process or the Tort Claims Act in an action brought by qualified patients under the Act who claim to have been denied access to medical marijuana because of the Department of Health’s failure to implement the program as mandated. (January 13, 2014)

In Peltier v. Barbera, the Superior Court of New Jersey Appellate Division addressed the sufficiency of evidence necessary to show damages in a breach of contract claim.  The claim was that defendant, a contractor, breached his contract with plaintiff by failing to complete work for which he was paid by the plaintiff’s homeowner's insurance carrier. The trial court found that plaintiff had proven defendant was liable for breach of contract but dismissed the complaint because plaintiff had failed to prove she had suffered any damages as a result of the breach. Plaintiff had relied upon calculations included within the insurance adjuster's estimate to prove the damages caused by defendant's failure to perform the specified work. The appellate panel held that the amount that defendant agreed to and actually received for performing the services was sufficient evidence of the loss incurred from the breach. (December 10, 2013)

In Southwestern Energy Production Co v. Forest Resources, LLC, the Superior Court of Pennsylvania addressed whether certain oil and gas lease agreements complied with the Guaranty Minimum Royalty Act (GMRA).  The court held that a contractual provision assigning back a portion of a defined royalty failed to guarantee the minimum royalty mandated by the GMRA. (November 27, 2013)

In Knight v. Springfield Hyundai, the Superior Court of Pennsylvania addressed whether an arbitration clause within a Buyer’s Order used in an installment sale for the purchase of a motor vehicle is enforceable when the Retail Installment Sales Contract (RISC) does not contain an arbitration provision.  The court held that where a motor vehicle is  purchased by installment sale, the RISC subsumes all other agreements related to the sale and that the arbitration clause was not enforceable. (December 2, 2013)

In Town Sports Intl., LLC v. Ajilon Solutions, the New York Supreme Court, Appellate Division, First Department, addressed whether an award of damages to a plaintiff for the defendant’s breach of contract claims was against the weight of the evidence.  The jury found that defendant breached the contract by providing reports which contained materially false statements of fact, which plaintiff relied upon to its detriment.  The court found that although the evidence was sufficient to warrant a finding that defendant deceived the plaintiff as to the true status of the project, the jury was not given a reasonable way to calculate the amount of damages and the award of damages was set aside as speculative and not supported by the evidence. (December 3, 2013)

In Eujoy Realty Corp. v. Van Wagner Communications LLC, the New York Court of Appeals addressed whether an alleged oral agreement to apportion rent is barred by a standard merger and “no oral modification” clause in a lease.  The court held that such clauses are valid, but may be unenforceable where the oral modification has been fully performed, or, if there has been only partial performance, “‘the partial performance is unequivocally referable’ to the alleged oral modification.”  The court held that there was no oral modification of the lease because, if a tenant’s failure to pay rent “is sufficient to prove an oral modification of payment terms, or estop the landlord from recovering the shortfall,” General Obligations Law § 15-301 (recognizing “no oral modification” clauses) would become a nullity. (November 26, 2013)

In Goel v. Ramachandran, the New York Supreme Court, Appellate Division, Second Department, addressed whether the plaintiff stated a cause of action against two defendants – a subsidiary and, under the theory of piercing the corporate veil, its parent corporation – for unjust enrichment, aiding and abetting a fraud, and money had and received.  The court held that: (i) the receipt of benefits alone is insufficient to state a claim for unjust enrichment and that the enrichment must also be unjust; (ii) conclusory allegations are insufficient to establish fraud, and the plaintiff cannot maintain an action under the theory of piercing the corporate veil where it does not adequately set forth the underlying claim; and (iii) the subsidiary was not liable for money had and received because the plaintiff did not allege that the subsidiary received money that rightfully belonged to another. (November 20, 2013)

In Korman Commercial Properties v. The Furntiure.Com, the Superior Court of Pennsylvania addressed the effective date of a writ of execution to enforce a judgment.  The court held that when an objection to improper service is waived, the effective date of a writ of execution relates back to the date of improper service.(November 12, 2013)

In JFK Holding Company LLC, v. City of New York, the New York Court of Appeals addressed whether an action for damages for the return of leased premises in bad condition could be upheld. The court found that the plaintiffs’ claim was barred by the plain language of the lease that limited tenant’s liability to the landlord. (November 14, 2013)

In FNF Touring LLC v. Transform America Corp., the New York Supreme Court, Appellate Division, First Department, addressed whether the plaintiff’s complaint was plead with sufficient particularity to permit a reasonable inference of fraud, in the absence of a fiduciary relationship. The court held that the plaintiff did not plead facts sufficient to permit a reasonable inference that the defendant acted with fraudulent intent. (November 7, 2013)

In Approved Oil Co. of Brooklyn, Inc. v. Junius Realty, LLC, the New York Supreme Court, Appellate Division, Second Department, addressed whether the plaintiff’s breach of contract claim was subject to dismissal under CPLR 3211 § 3211 (a)(1) or (7). The court held that the evidence relied upon by the defendants was not "documentary evidence" within the meaning of CPLR 3211(a)(1), and that dismissal was not warranted pursuant to CPLR 3211(a)(7) because the evidence did not show that any material fact alleged by the plaintiff was not genuine, or that no significant dispute exists regarding it. (November 6, 2013)

In Arrowhead Capital Finance, Ltd. v. Seven Arts Pictures PLC, the New York Supreme Court, Appellate Division, First Department, addressed whether, based on a provision in a subordination agreement allowing a junior lender to initiate a lawsuit only if a senior lender was first “paid in full,” the junior lender’s lawsuit was permitted where a loan assignment agreement provided that the senior lender would be “deemed” paid in full after receiving less than the whole outstanding amount.  The court held that, given the effect of the loan assignment, “it would torture the subordination agreement to construe it as continuing to bar plaintiff from bringing suit.” (October 17, 2013)

In Scientific Games International, Inc. v. Governor’s Office of Administration, the Commonwealth Court of Pennsylvania addressed the time period during which a party may file a protest with the Governor’s Office of Administration (GOA) in relation to a submission in response to a request for proposal.  The court found that, pursuant to the Commonwealth Procurement Code, such a protest must be filed within seven days of when the party knew or should have known of the facts giving rise to the protest. (October 9, 2013)

In D’Agostino v. Maldonado, the New Jersey Supreme Court issued a decision regarding application of the New Jersey Consumer Fraud Act (CFA), to a mortgage foreclosure rescue plan.  The court held that defendant’s use of misleading mortgage documents, causing plaintiffs to transfer property worth $480,000 to defendant for ten dollars, gave rise to an unconscionable commercial practice under the CFA.  The court further held that, even though the trial court’s order for equitable relief voided the transaction and restored the plaintiffs’ equity in their home, the transfer of that equity to defendant still constituted an ascertainable loss within the meaning of CFA, and the award of treble damages (minus the value of the equitable relief) was within the trial court’s discretion. (October 3, 2013)

In Nuwave Investment Corp.  v. Hyman Beck & Company, the Superior Court of New Jersey, Appellate Division, determined that presumed damages awarded in a defamation case that exceeded $1 million must be vacated as excessive.  They noted that while the doctrine of presumed damages allows an award of presumed damages absent proof of actual harm to a plaintiff's reputation, the award must be "nominal." (September 19, 2013)

In Arkansas Teacher Retirement System v. Countrywide Financial System, the Supreme Court of Delaware addressed whether shareholder plaintiffs may maintain a derivative suit under the "fraud exception" to Delaware's continuous ownership rule.  Here, the Plaintiffs were divested of an ownership interest after a merger but plaintiffs alleged suit was proper because the merger was necessitated by, and is inseparable from, the alleged fraud that is the subject of their derivative claims.  The court held that the fraud exception permits a stockholder to maintain a post-merger suit only when the merger itself was perpetrated to deprive stockholders of standing to bring a derivative action.  Merely alleging that the merger is inseparable from the alleged fraud does not give post-merger derivative standing to a prior shareholder. (September 10, 2013)

In LaGrange Communities, LLC v. Cornell Glasgow, LLC, the Supreme Court of Delaware addressed the standard applicable to a contract dispute when one party to the agreement contends the terms of the agreement are ambiguous.  The Court held that the terms were ambiguous, because it was not clear whether the "Sales Projection Schedule" set firm deadlines or merely communicated an estimate of completion.  As such, the interpreting court must consider extrinsic evidence to ascertain the parties’ intentions. (September 9, 2013)

In Iain Curtis-Shanley v. Bank of America, the New York Supreme Court, Appellate Division, Second Department, addressed whether a bank customer’s status as a depositor creates a fiduciary relationship with the bank on which the customer can base a claim against the bank for breach of fiduciary duty. The court held that the relationship between a bank and a customer is one of a creditor and debtor which generally does not create any fiduciary obligations. (August 28, 2013)

In Fedor v. Nissan of North America, the Superior Court of New Jersey, Appellate Division, addressed whether the purchaser of a defective automobile, who successfully obtained relief pursuant to the manufacturer’s informal dispute settlement procedure, established pursuant to the Magnuson-Moss Act, could recover attorney fees under the Magnuson-Moss Act and/or New Jersey’s “Lemon Law” statute.  The court held the consumer’s acceptance of an award pursuant to the informal dispute settlement mechanism, which did not provide for attorney fees, waived any right to further remedies. (August 23, 2013)

In Midwest Financial Acceptance Corporation v. Lopez, the Superior Court of Pennsylvania addressed whether a confession of judgment pursuant to a commercial contract is subject to a challenge of improper venue under Pennsylvania Rule of Civil Procedure 1006.  The court held that Rule 1006 does not apply to a confession of judgment unless otherwise specified in the agreement. (August 23, 2013)

In Newman Development Group of Pottstown, LLC v. Genuardi’s Family Market, Inc., the Superior Court of Pennsylvania addressed the appropriate measure of default interest in an anticipatory breach of a commercial lease.  In 2002, Genuardi’s entered into a lease with Newman for a shopping center space that was to be completed in 2005.  Prior to the completion of the space, Genuardi’s informed Newman that it would be terminating the lease.  Newman, in turn, sought prejudgment interest from the date of the termination. While Genuardi’s conceded that it owed prejudgment interest, it contended that interest should run from the date when its performance was actually due. The court held that Genuardi’s refusal to proceed with the contract resulted in a total anticipatory breach of the lease, and interest accrued from the date of refusal. (July 29, 2013)

In Lawson v. Department of Transportation, the Supreme Court of Delaware addressed whether a state agency complied with Delaware’s Real Property Acquisition Act before it moved to condemn property.  The court held that the state agency did not comply with the Real Property Acquisition Act because it based its initial offer to purchase property on an appraisal that contains flawed assumptions about the property’s post-taking use. (July 22, 2013)

In Adams Outdoor Advertising v. Menegatos, the Superior Court of Pennsylvania addressed the issues of unjust enrichment and loss of use/conversion.  The court held that, for unjust enrichment, the law implies the existence of a contract requiring the defendant to pay the reasonable value of the benefit conferred, with the proper focus being the improper benefit received by the unjustly enriched party.  For loss of use/conversion, the court held that the measure of damages is the market value of the converted property at the time and place of conversion.  The court further explained that loss of use damages for personal property requires proof of efforts to either repair or replace the affected property both in a reasonable manner and within a reasonable amount of time and that the loss of profits from the destruction or interruption of an established business may be recovered if the amount of actual loss is rendered reasonably certain by competent proof. (July 25, 2013)

In Newman v. Krintzman, the United States Court of Appeals for the First Circuit addressed whether claim preclusion/res judicata barred litigation of a claim in Massachusetts that had previously been dismissed in the state of New York under statute of limitations grounds.  The claim was not time-barred under the Massachusetts twenty-year statute of limitations, though had been time-barred under the New York six-year statute of limitations.  The court concluded that a dismissal on statute of limitations grounds was a decision on the merits entitled to preclusive effect, and held that the claim could not be brought in Massachusetts. (July 24, 2013)

In Volkswagon Group of America v. Kimmel and Silverman, the Superior Court of Pennsylvania addressed whether the Pennsylvania Lemon Law, and by extension the Magnuson-Moss Warranty Act (MMWA) and the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL), require an automobile manufacturer to pay attorneys’ fees where the purchaser’s dispute is resolved through a manufacturer's informal dispute settlement procedure. The court held that the right to attorneys’ fees under the Lemon Law, the MMWA, and the UTPCPL attaches only where a purchaser has filed suit. (July 17, 2013)

In Fenwick-Keats Realty LLC v. 212 East 29 St. LLC, the New York Appellate Division, First Department, addressed whether a broker breached its agreement with the seller regarding a sale of real estate where the seller was the only party to execute the agreement, yet the broker received the full benefit of the contract.  The court held that the broker breached the brokerage agreement despite not executing the contract because First Department precedent dictates that a party cannot repudiate a contract after receiving its full benefit. (July 2, 2013)

In Evans v. Lorillard Tobacco Company, the Supreme Judicial Court of Massachusetts addressed whether a cigarette manufacturer may be held liable in negligence for a woman’s death on a theory of breach of a voluntarily assumed duty, where the tobacco company joined in a 1954 published advertisement in major newspapers stating that the manufacturer pledged “aid and assistance to the research effort into all phases of tobacco use and health.”  The court concluded that such a statement was not voluntary assumption of a legal duty and could not support a claim of negligence. (June 11, 2013)

In Johnson v. SmithKline Beecham Corporation., the United States Court of Appeals for the Third Circuit addressed the citizenship of a limited liability company, GSK LLC, for purposes of diversity jurisdiction. The court held that the citizenship of a limited liability company is to be determined by its members and, in this case, the sole member was a holding company, GSK Holdings. The court concluded that the holding company’s office in Delaware, though small, qualified it as a Delaware corporate citizen. (June 7, 2013)

In Siga Technologies, Inc. v. Pharmathene, Inc., the Supreme Court of Delaware addressed both an alleged breach of a contractual obligation to negotiate in good faith and potential liability under the doctrine of promissory estoppel. The court held that where parties agree to negotiate in good faith in accordance with a term sheet, that obligation is enforceable. Further, if a trial judge makes a factual finding, supported by the record, that the parties would have reached an agreement but for the defendant’s bad faith negotiation, a trial judge may award expectation damages.  But a promise expressed in a fully enforceable contract cannot give rise to a promissory estoppel claim. (May 24, 2013)

In Hooks v. Forman, Holt, Eliades & Ravin, LLC, the United States Court of Appeals for the Second Circuit addressed the issue of whether, under the Fair Debt Collection Practices Act, a debt collector could require all disputes of the validity of a debt to be in writing. The court held that Congress did not intend to impose a writing requirement for disputes of the validity of a debt, when the subsection concerning those disputes, § 1692g(a)(3), did not contain an explicit writing requirement, whereas other subsections did include such a requirement. (May 29, 2013)

In Askenazy v. KPMG, the Appeals Court of Massachusetts addressed whether tort claims against two "feeder" hedge funds that supplied investments to the Bernie Madoff Ponzi scheme were direct or derivative under Delaware law.  Derivative claims would be subject to an arbitration agreement, whereas direct claims would not.  The court concluded that the harms alleged, some of which the funds would not have standing to pursue, constituted individualized harm independent of the harm to the funds. (May 23, 2013)

In Maciaszek v. Sloninski, the New York Supreme Court, Appellate Division, addressed the issue of a property owner’s liability after a tenant fell due to a hole in a step on an interior staircase of an apartment building. The court held that the property owner was entitled to judgment as a matter of law by demonstrating that the alleged defect was trivial and, therefore, not actionable. (April 24, 2013)

In J.M. Hollister, LLC v. Architectural Access Board, the Appeals Court of Massachusetts reviewed whether the board had acted arbitrarily and capriciously in determining that a clothing store’s front entrance, designed to look like a raised front porch, and flanked by two handicapped accessible doors, was three separate entrances rather than a single entrance. The court determined that the board could properly find that the three doors were separate entrances and require that each be made handicap accessible. (April 19, 2013)

In Weiler v. Portfolioscope, the Appeals Court of Massachusetts addressed whether a dispute over the distribution of assets from a defunct corporation between its shareholders, its subsidiaries, and certain venture capitalists could support a claim of unfair and deceptive trade practices under Chapter 93A.  The court held that, although the actions taken by the parties were unfair and deceptive, Chapter 93A did not apply because the unfair or deceptive acts or practices prohibited by Chapter 93A are those that may arise in dealings between discrete, independent business entities, and not those that may occur within a single company. (February 1, 2013)

In Union de Empleados de Muelles v. UBS Financial Services Inc., the United States Court of Appeals for the First Circuit addressed the circumstances in which a pre-suit demand is futile in a derivative action under Puerto Rican law. The court determined that a plaintiff need not present conclusive evidence of improper influence on the directors of a corporation to demonstrate futility, but need only provide the court with some particulars from which it could reasonably be inferred that the directors' objective judgment would be impaired. (January 4, 2013)

In Fazio v. The Guardian Life Insurance Company of America, the Superior Court of Pennsylvania addressed whether plaintiffs are entitled to a jury trial on claims under the Unfair Trade Practices and Consumer Protection Law (UTPCPL). The court concluded that there is no right to a jury trial for private causes of action under the UTPCPL because the statute does not specifically enumerate that right and the UTPCPL created a cause of action distinct from common law for consumer protection. (December 12, 2012)

In Wyman v. Ayer Properties, LLC, the Appeals Court of Massachusetts addressed whether recovery for damage to individual condominium units is barred by the economic loss rule. Because the economic loss rule precludes damages for purely monetary losses in the absence of personal injury or property damage separate from the construction that was under contract, the issue is whether a condominium is an integrated product or a group of separate properties. The court held that the economic loss rule did not preclude recovery because the intent of the rule is to divert liability to contract and warranty theories, not to deprive plaintiffs of tort remedies. (December 12, 2012)

In Titan Investment Fund II, LP v. Freedom Mortgage Corporation, the Supreme Court of Delaware addressed when "benefit of the bargain" damages (e.g., anticipated lost profits) are recoverable in a breach of contract action.  Because there was no evidence that the contract at issue would have been performed even had it not been repudiated, the complaining party was only entitled to reliance damages (i.e., the damages actually incurred). (December 5, 2012)

In Riverbend Community, LLC v. Green Stone Engineering, LLC, the Supreme Court of Delaware examined a release given by a subdivision developer to an engineering company to determine whether it barred all claims arising out of the engineering company’s services.  The court found the release to unambiguously be a general release, and not a mere work product release, therefore, sufficient to waive all tort and contract claims. (October 17, 2012)

In Glover v. Federal Deposit Insurance Corporation, the United States Court of Appeals for the Third Circuit construed the definition of a “debt collector” under the Fair Credit Extension Uniformity Act (FCEUA), 23 Pa.C.S.§ 2270.4(a).  Because the FCEUA excludes from the definition a party, whose collection activities are “in connection with the prosecution of a lawsuit to reduce a debt to judgment,” the court held that an attorney, who prosecuted a foreclosure action, did not qualify as a “debt collector” under the Act. (September 5, 2012)

In Maverick Steel Company v. Dick Corporation, the Superior Court of Pennsylvania held that where plaintiff had claimed that defendant intentionally and wrongfully engaged in a course of conduct and communications resulting in tortious contractual interference, plaintiff’s claim was separate and distinct from a claim of libel or slander and so should not have been dismissed as time barred under the one-year trade libel state of limitations. (August 21, 2012)

In Allegheny Energy Supply Company, LLC  v. Wolf Run Mining Company, the Superior Court of Pennsylvania addressed the interpretation of a force majeure clause contained in a coal sales agreement. Because the force majeure clause applied only to “causes beyond the reasonable control” of the affected party, the court held that the clause did not excuse the owner’s non-delivery due to a collapsed mine roof, an accidental breach of a gas well, and changes in regulations. (August 13, 2012)

In Pennsylvania State Police, Bureau of Liquor Control Enforcement v. S&B Restaurant, the Commonwealth Court of Pennsylvania addressed issues involving Section 493(1) of the Liquor Code.  The court held there is no good faith defense to selling/furnishing alcohol to minors, and that administrative prosecution of a Section 493(1) violation does not warrant the same protections as a criminal prosecution. (July 26, 2012)

In Robinson Township v. Commonwealth of Pennsylvania, the Commonwealth Court of Pennsylvania addressed the constitutionality of Act 13 (58 Pa. C.S. Sections 2301-3504) pertaining to Oil and Gas  - Marcellus Shale.  The court struck down portions of the Act which sought to override local zoning laws, particularly 58 Pa. C.S. Section 3304, and also struck down Section 3215(b)(4) because it gave the Department of Environmental Protection power to make legislative policy judgments otherwise reserved for the General Assembly. (July 26, 2012)

In Wavedivision Holdings v. Highland Capital, et al, the Supreme Court of Delaware affirmed summary judgment in favor of the defendants with respect to Wavedivision’s claim of tortious interference with contract. Wavedivision had a contract with an entity known as Millennium. Millennium breached the contract and thereafter entered into a contract with the defendants. The Court held that the defendants’ interference, if any, was justified because the defendants had no actual or implied knowledge of the contract between Wavedivision and Millennium. (July 19, 2012)

In Martin Marietta Materials, Inc. v. Vulcan Materials Co., the Supreme Court of Delaware addressed the issue of whether a company breached two confidentiality agreements it had with another company. The court affirmed the trial court’s legal interpretation of the two confidentiality agreements, and rejected the company’s arguments that the agreements permitted it to use and disclose the other company’s nonpublic information in the manner that it did. (July 10, 2012)

In T.F. Ribarchak v. Municipal Authority of the City of Monongahela, the Commonwealth Court of Pennsylvania addressed whether a subcontractor’s bid was legally accepted by the general contractor where the general contractor used the subcontractor’s bid and name in a general overall bid to another awarding authority. The court held that no contract was formed. (May 21, 2012)

In Fizzano Brothers Concrete Products, Inc. v. XLN, Inc., the Supreme Court of Pennsylvania addressed whether continuity of ownership is an essential element required to support the de factor merger exception to corporate successor liability. The court held that, where the underlying cause of action is rooted in contract or corporate law, for a de facto merger exception to be met, “some sort of” proof of continuity of ownership or stockholder interest is required. (March 26, 2012)

In T.W. Phillips Gas and Oil Co. v. Jedlicka,the Supreme Court of Pennsylvania addressed whether an oil or gas lease had produced “in paying quantities” of profits, in accordance with the lease’s habendum clause (the clause that determines the ultimate duration of the lease). The court held that, for those operations where production had been sporadic or marginal, and operating expenses exceeded profits, consideration would be given to “some period of time” over which the decreased production occurred, along with the operators’ “good faith judgment” in maintaining the well, to determine whether the well had produced “in paying quantities.” (March 26, 2012)

In Credit Suisse Securities (USA) LLC v. Simmonds, the United States Supreme Court addressed whether the failure to disclose a change of ownership interest, in compliance with §16(a) of the Securities Exchange Act of 1934, will toll the two-year time period in which a corporation or a security holder of that corporation may bring a §16(b) action to sue corporate insider(s) who realize profits from the purchase and sale or sale and purchase of a corporation’s securities within any six-month period. The Court held that the §16(b) limitation will be tolled when “fraudulently concealed facts, are, or should have been discovered by the plaintiff” and not until the filing of a §16(a) statement. (March 26, 2012)

In Truserv Corp. v. Morgan's Tool & Supply Co., Inc., the Supreme Court of Pennsylvania addressed whether a trial court can refuse to award contractual interest in a contract dispute based on a finding that the prevailing party engaged in dilatory conduct. The court found that a party has a right to interest expressly set forth in a contract and that the mitigation doctrine will not reduce the amount the party is entitled to recover under the contractual agreement. (February 21, 2012)

In Long v. Tommy Hilfiger USA, the United States Court of Appeals for the Third Circuit was faced with the issue of whether printing the expiration month, but not the year, of a credit card on a receipt was a willful violation of the Fair and Accurate Credit Transactions Act (FACTA) which forbids merchants from printing the “expiration date” of a customer’s card on any receipt provided to the cardholder. The court held that FACTA did not permit a merchant to print even a portion of the expiration date on a receipt, but found that the merchant had not committed a willful violation of the Act as its interpretation of the phrase “expiration date” was objectively reasonable. (January 24, 2012)

In New Bloomfield v. Wagner, owners of real property challenged an ordinance prohibiting the storage of abandoned vehicles. The Commonwealth Court of Pennsylvania held that the ordinance, as written, declared abandoned vehicles a per se nuisance, with such a declaration in conflict with Pennsylvania law. As such, the adopted ordinance was declared unconstitutional. Further, the court held that there had also been no evidence presented by the borough to support a finding that the vehicles at issue presented as a nuisance in fact. As such, summary judgment was awarded in favor of the property owners. (January 18, 2012)

In Hanisco v. Township of Warminster and Solid Waste Services, Inc. d/b/a J.P. Mascaro & Sons, the Commonwealth Court of Pennsylvania addressed the issue of whether the extension of prices in a waste services contract could be privately negotiated by the parties or whether such renegotiation required public, competitive bidding pursuant to Section 3102(a) of the Pennsylvania Code. The court held that the option to renew, which contained the essential terms of a contract including a definite price term, was part of the competitive bidding process, and was not open for future negotiation; therefore, the parties entered into a new contract that became subject to the Code’s mandatory public bidding requirements. (January 5, 2012)

In New Jersey Retail Merchants Association v. Sidamon-Eristoff, the United States Court of Appeals for the Third Circuit addressed the constitutionality of 2010 N.J. Laws Chapter 25 (Chapter 25), which amended New Jersey’s unclaimed property statute, N.J.S.A. 46:30B, and provided for the custodial escheat of stored value cards (SVC).  The court held that retroactive application of Chapter 25 violated the Contract Clause; the place-of-purchase presumption and the accompanying Treasury Guidance are preempted by federal common law; the data collection provision is severable from the place-of-purchase presumption; and the SVC Issuers failed to show a reasonable likelihood of success on the merits of their federal statutory preemption claim and their substantive due process claim. (January 5, 2012)

In American Express Travel Related Services, Inc. v. Sidamon-Eristoff, the companion case to New Jersey Retail Merchants Association v. Sidamon-Eristoff, the United States Court of Appeals for the Third Circuit addressed the constitutionality of 2010 N.J. Laws Chapter 25 (Chapter 25), which amended New Jersey’s unclaimed property statute, N.J.S.A. 46:30B (2002), and retroactively reduced the period after which travelers checks are presumed abandoned from 15 years to 3 years. The court held that the appellant failed to show a likelihood on the merits of its claims that Chapter 25’s provision violates the Due Process Clause, the Contract Clause, the Takings Clause, and the Commerce Clause of the United States Constitution. (January 5, 2012)

In Discover Bank v. Stucka, the Superior Court of Pennsylvania addressed whether a bank claiming that a defendant-debtor failed to pay the balance due on a credit card account must attach a cardholder agreement and statement of account to the complaint pursuant to Rule 1019(i) of the Pennsylvania Rules of Civil Procedure.  The court held that the bank’s complaint set forth sufficient allegations to provide the debtor with notice of the bank’s claims and the failure to attach the agreement was not procedurally fatal to the litigation. (November 15, 2011)

In In Re Lemington Home for the Aged, the United States Court of Appeals for the Third Circuit considered whether the business judgment rule and the doctrine of in pari delicto barred claims against board members and officers sued for breach of fiduciary duty and deepening insolvency in the operation of a nursing home.  The court declined to apply the business judgment rule and the doctrine of in pari delicto, as a matter of law, because there was evidence that the board members and officers failed to exercise reasonable diligence and engaged in self-dealing.   (September 21, 2011)  

In Trump v. O’Brien, the New Jersey Superior Court, Appellate Division, considered a defamation suit brought by Donald Trump against the author and publishers of a book entitled “TrumpNation: The Art of Being the Donald.”  Trump alleged that the book’s lengthy analysis of Trump’s financial status based on accounts of anonymous sources constituted defamation.  The court found that the author’s reliance on consistent and corroborative accounts from multiple confidential sources does not meet the “actual malice” standard, which was required due to Trump’s status as a public figure. (September 7, 2011)

In Gonzalez v. Wilshire Credit Corp., the Supreme Court of New Jersey addressed the applicability of the Consumer Fraud Act to a post-foreclosure agreement to not pursue a sheriff’s sale contingent on the payment of loan arrears and additional costs and fees.  The court held that the post-foreclosure agreement constituted a stand-alone extension of credit subject to the Act. In fashioning and collecting on such a loan, a lender or its agent cannot, therefore, use unconscionable practices. (August 29, 2011)

In T&C Leasing, Inc. v. Wachovia Bank, N.A., the Superior Court of New Jersey, Appellate Division, addressed whether a post-judgment bank account levy creates an ongoing restraint on a debtor's bank account, even where the levy contains no express language regarding a continuing lien. The court held that, because a bank account is more akin to a sum of money subject to garnishment at a specific point in time, the bank has no continuing obligation to restrain funds deposited after service of the levy. (July 8, 2011)

In RAB Performance Recoveries LLC v. George, the New Jersey Superior Court, Appellate Division, addressed the cancellation notice requirement of the Door-to-Door Retail Installment Sales Act of 1968 (DDRISA). The court held that the buyer could cancel the contract by telephone because the seller failed to give her the required notice of other cancellation requirements. (March 15, 2011)

In Kieffer v. Best Buy, the Supreme Court of New Jersey addressed whether an indemnitee retail store was entitled its legal fees after winning summary judgment in a slip-and-fall negligence case. The court held that the language of the indemnification provision did not require the indemnitor cleaning company to reimburse the legal fees because there was no determination that the cleaning company caused the legal fees to be expended as a result of its "negligence, omission or conduct." (March 15, 2011) 

In Commonwealth Financial Systems v. Smith, the Superior Court of Pennsylvania addressed an issue of first impression: whether computerized files of an original creditor are admissible as the business records of a successor-debt buyer. The court held that computerized business records of a predecessor company must be authenticated pursuant to Pennsylvania Rule of Evidence 803(6) which requires the proponent of documentary evidence to establish circumstantial trustworthiness. The court rejected the national trend in other federal and state courts which have held that a document prepared by a third party is properly admitted as part of the business records of the acquiring business if the business integrated the document into its records and relied upon it. (February 14, 2011)

In Investors Savings Bank v. Waldo Jersey City, the Superior Court of New Jersey, Appellate Division, addressed the enforceability of a contract provision which declared a loan agreement to be "free from any right of setoff, counterclaim, or other defense," a matter of first impression in New Jersey. The court held that the provision was unenforceable as a matter of public policy because counterclaims are compulsory in New Jersey. (February 17, 2011)

In Keystone Redevelopment Partners v. Decker, the United States Court of Appeals for the Third Circuit addressed whether members of the Pennsylvania Gaming Control Board are entitled to absolute, quasi-judicial immunity from suits arising out of their decisions made in denying gaming license applications. The court held that the statutory and regulatory framework for Board proceedings (including a right to counsel, subpoena powers, application of a "clear and convincing" evidentiary standard, and the need for the Board to issue a written explanation in support of its decisions) entitled Board members to quasi-judicial immunity from suit. (January 7, 2011)

In Pomerantz Paper Corp. v. New Community Corp., the Supreme Court of New Jersey granted a Petition for Certification of Appeal to consider the following question: "Is this commercial seller subject to a claim of unconscionable commercial practices under the Consumer Fraud Act for billing the commercial buyer after delivery at prices the buyer claims were excessive?" (December 10, 2010)

In Ingres Corp. v. CA, Inc., the Supreme Court of Delaware, sitting en banc, addressed the enforceability of a forum selection clause, and its impact on the analysis of whether a case should be stayed in favor of a previously filed suit in a different forum. Although the court noted that trial courts should ordinarily stay an action where a prior action, involving the same parties and issues, was previously filed in a different forum, the court held that deference to the first-filed action is no longer required when the second action complies with a forum selection clause. As stated by the court, "forum selection clauses are presumptively valid and should be specifically enforced unless the resisting party clearly shows that enforcement would be unreasonable and unjust, or that the clause is invalid for reasons such as fraud or overreaching." (December 1, 2010)

In Autochoice Unlimited, Inc. v. Avangard Auto Finance, Inc., the Superior Court of Pennsylvania reviewed a decision sustaining the defendant's preliminary objections to venue in an action commenced by the plaintiff in the Philadelphia Court of Common Pleas. The trial court sustained the objections because the parties had previously agreed, in writing, that "venue for any legal action shall be in Broward County, Florida." Although a prior suit filed by the defendant in Florida had been dismissed because the Florida court did not have personal jurisdiction over the plaintiff, the Superior Court held that the Florida court's dismissal on jurisdictional grounds "would not bar the instant suit or the enforcement of the forum selection clause where [Autochoice] is the plaintiff in the action." As noted by the court, mere inconvenience or additional expense does not make a forum selection clause unreasonable. (December 1, 2010)

In Cain v. Merck & Co., et al., the Superior Court of New Jersey, Appellate Division, recently considered whether the New Jersey Business Corporation Act, N.J.S.A. 14A:1-1 to 14A:16-4, entitles shareholders to inspect the minutes of the board of directors and executive committee. N.J.S.A. 14A:5-28(4) provides, in pertinent part, that shareholders, upon proof of a "proper purpose," may examine "the books and records of account, minutes, and record of shareholders of a corporation." N.J.S.A. 14A:5-28(4). The Appellate Division concluded that the qualified right of inspection under the statute extends to the minutes of the board of directors and the executive committee. However, shareholders are entitled to examine only those portions of the minutes that address their "proper purpose." Shareholders are not entitled to examine the minutes in order to explore unsubstantiated allegations of general mismanagement. (August 19, 2010)

In City of Westland Police & Fire Retirement System v. Axcelis Technologies, Inc., the Supreme Court of Delaware reviewed whether the plaintiff/stockholder could properly seek the inspection of the defendant/corporation's books and records under 8 Del. C. § 220(c). The court held that allowing an inspection in this case would be improper because, although the plaintiff/stockholder had a "proper purpose" for inspecting the books and records, it failed to demonstrate that it had a "credible basis" to infer wrongdoing on the part of the corporation so as to warrant further investigation. (August 11, 2010)

In New Jersey Lawyers' Fund for Client Protection v. Stewart Title Agency Co., the Supreme Court of New Jersey addressed whether a title insurance company in a real estate transaction is responsible for an attorney's theft of his clients' funds prior to the title company's involvement in the transaction. The Court held that the title company could not be held liable because no agency relationship existed at the time the funds were misappropriated. (August 2, 2010)

In Seidman v. Clifton Savings Bank, the Supreme Court of New Jersey granted a Petition for Certification of Appeal to consider the following question: "In this derivative stockholder action challenging directors' self-dealing, were these directors protected by the business judgment rule as a result of the shareholders' ratification of their incentive and retirement plans?" (June 30, 2010)

In Gonzalez v. Wilshire Credit Corp., the Supreme Court of New Jersey granted a Petition for Certification of Appeal to address an issue related to the Consumer Fraud Act. The question the Court agreed to consider is: "Can plaintiff maintain a claim under the Consumer Fraud Act alleging fraud in the settlement of a mortgage foreclosure action?" (June 21, 2010)

In Kalogeras v. 239 Broad Avenue, L.L.C., et al., the Supreme Court of New Jersey addressed whether, in the absence of a contractual provision requiring governmental approval, the transfer of a liquor license pursuant to a contract for the sale of a business is specifically enforceable. The case involved the defendants' sale of a diner along with its liquor license. The contract explicitly included the sale of the liquor license, but was silent as to whether the transfer was subject to prior state approval pursuant to the New Jersey Alcohol Beverage Control Act. The court held that the lack of a specific provision conditioning the transfer of the license on the receipt of necessary government approvals was immaterial to enforcing the contract because any obligation of prior governmental approval, unstated in the contract but otherwise required by law, is necessarily incorporated in the contract. In addition, the court held that although the parties to the contract could not compel the issuance of necessary government approvals, the implied covenant of good faith and fair dealing obligated the parties to cooperate with each other in seeking the license transfer. Therefore, the court held that the transfer of the liquor license was specifically enforceable, but only to the extent the parties would be required to act, in accordance with the implied covenant of good faith and fair dealing, with respect to the condition precedent, prior governmental approval. (June 16, 2010)

In The Matter of Johnny Popper, Inc., the Superior Court of New Jersey, Appellate Division, considered a violation of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -195, which requires the total selling price of merchandise to be plainly marked by a tag, sign or other demarcation that is either "affixed to the merchandise or located at the point where the merchandise is offered for sale." In this case, none of appellant's vehicles on the lot had the sale price affixed, nor was there any posting of the vehicle prices anywhere on the lot. Appellant maintained a price list inside its building, which is a converted house. The appellant conceded that sale prices were not affixed to the vehicles, but contended it satisfied the alternative requirement of N.J.S.A. 56:8-2.5 because the price list was in the sales office, which is the "point where the merchandise is offered for sale." The Court rejected this argument, noting that under the appellant's interpretation, a supermarket could place no prices on or near the thousands of items on its shelves in lieu of a comprehensive price list kept at the register. The Court upheld the citation, and recognized that the purposes of the statute is to ensure that consumers know the price of an item as they look at it and without having to inquire or interact with a salesperson. The requirement prevents merchants from engaging in sharp practices, capricious price quotes, or pressure tactics. (June 9, 2010)

In Official Committee of Unsecured Creditors of Allegheny Health Education and Research Foundation v. PricewaterhouseCoopers, LLP, the United States Court of Appeals for the Third Circuit considered whether an agent's fraud should be imputed to the principal, such that the principal is barred from recovering damages from a third party who colluded with the agent to misstate the principal's financial health. Under Pennsylvania law, an agent's fraudulent conduct is not imputed to the principal where the agent and the third party colluded against the principal and/or where the third party did not act in good faith. In Official Committee, the plaintiff-a healthcare foundation-alleged that its auditor colluded with certain officers to misstate the foundation's precarious financial health. The third party auditor argued that the plaintiff's claims were barred because the acts of its officers/agents were imputed to the plaintiff and, therefore, the defense of in pari delicto applied and prevented the plaintiff from recovering damages. In pari delicto is a doctrine that prevents a plaintiff from recovering damages when s/he is equally at fault as the defendant. The Third Circuit remanded the matter to the district court to reconsider its ruling in light of a clarifying opinion from the Pennsylvania Supreme Court, in which the court held that the defense of in pari delicto is only available when the third-party auditor dealt in good faith with the principal. Because the district court did not consider whether the defendant-auditor dealt in good faith with the plaintiff-foundation, the Third Circuit remanded the case for a determination of that issue. (May 28, 2010) 

In TruServ Corp. v. Morgan's Tool & Supply Co., Inc., the Supreme Court of Pennsylvania granted a Petition for Allowance of Appeal to consider a question related to the award of contractual interest. The issue that the court agreed to consider is: "Whether a trial court has discretion to refuse to award contractual interest based on the dilatory conduct of the victorious party." (April 14, 2010)

In Tannenbaum v. Nationwide Ins. Co., the Supreme Court of Pennsylvania addressed an issue of first impression: the scope of the offset provision of the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. § 1722. Section 1722 precludes an insured "from recovering the amount of benefits paid or payable under this subchapter, or workers' compensation, or any program, group contract or other arrangement for payment of benefits as defined in section 1719." Following a motor vehicle accident, the plaintiff received Social Security disability payments as well as income-loss benefits under a group plan provided by his employer, and benefits pursuant to two personal disability policies. Nationwide Insurance Company, the plaintiff's UIM insurer, sought to offset these payment against the plaintiff's claim for income-loss benefits. Both the Court of Common Pleas and the Superior Court held that there was no offset. The Supreme Court, finding that the relevant disability benefits received by the plaintiff fall within the group/program/arrangement classification for purposes of Section 1722, reversed. Thus, the court held that "UM/UIM policies may be offset by group/program/arrangement benefits, including disability benefits purchased, in whole or in part, by the insured, at least so long as those benefits are not subject to subrogation." (April 28, 2010)

In Perdue v. Kenny A., the United States Supreme Court addressed whether the calculation of an attorney's fee based on the "lodestar" method may be increased based on superior performance and results. The lodestar approach considers the number of hours attorneys and their employees worked multiplied by the hourly rates prevailing in the community. Awarding fees of $10.5 million, the district court found that the proposed hourly rates were fair and reasonable, but that some billing entries were vague. As a result, the district court cut the lodestar from the original $14 million fee request to $6 million, but enhanced that award by $4.5 million. The Supreme Court explained that there is a strong presumption that the lodestar figure is sufficient and reasonable, and the presumption may be overcome only in exceptional circumstances. Accordingly, factors subsumed in the lodestar calculation cannot be used as a ground for increasing an award above the lodestar, and a party seeking fees has the burden of identifying a factor that the lodestar does not adequately take into account and proving with specificity that an enhanced fee is justified. Finding that the district court did not apply these standards, the Supreme Court reversed. (April 21, 2010)

In Pediatrix Screening, Inc. v. Telechem International Inc., the United States Court of Appeals for the Third Circuit addressed the gist of the action doctrine. At trial, plaintiff was found liable for fraudulent misrepresentation, which had been presented to the jury as a tort claim. Plaintiff appealed, arguing that the gist of the action doctrine barred the misrepresentation claim because it was inextricably intertwined with the other contract claims at issue. The Court of Appeals for the Third Circuit remanded the claim for further review. While the court recognized that Pennsylvania law has adopted the gist of the action doctrine to preclude parties from re-casting ordinary breach of contract claims into tort claims, it found that there was too much uncertainty surrounding the type of misrepresentation at issue to determine whether the gist of the action was in tort or in contract. (April 20, 2010)

In Azur v. Chase Bank, the United States Court of Appeals for the Third Circuit addressed whether § 1643 of the Truth in Lending Act (TILA) gave the plaintiff a right to reimbursement of credit card payments covering fraudulent purchases made on the plaintiff's credit card. The court also addressed whether the plaintiff's §§ 1643 and 1666 claims were barred because the fraudulent user had apparent authority to use the plaintiff's credit card. In affirming the District Court's decision granting the defendant's Motion for Summary Judgment, the Third Circuit held that § 1643 does not impose any obligation on credit card issuers to reimburse the cardholder for costs associated with the unauthorized or fraudulent use of a credit card because the statute's language only limits the cardholder's liability in the event of fraudulent purchases. Additionally, addressing the apparent authority question, the court held that a card holder may, by repeatedly paying fraudulent credit card charges, vest a fraudulent user with apparent authority to use a credit card. (April 1, 2010) 

In Walnut Street Assoc., Inc. v. Brokerage Concepts, Inc., the Supreme Court of Pennsylvania granted a Petition for Allowance of Appeal. The issue that the court will decide is: "Did the Superior Court err in adopting and applying Restatement (Second) of Torts § 772(a), and holding that truthful statements could not form the basis of a claim for tortious interference with contractual relations?" (March 12, 2010)

In Mac's Shell Service, Inc. v. Shell Oil Products Co., LLC, the Supreme Court of the United States addressed whether service-station franchisees could maintain constructive termination and nonrenewal claims against a franchisor under the Petroleum Marketing Practices Act (Act), 15 U.S.C. § 2801, et. seq. The Act provides that no franchisor may terminate any franchise except for enumerated reasons, and specifies that "termination" includes cancellation. Similarly, the Act precludes a franchisor from failing to renew a franchise relationship for enumerated reasons, and defines a failure to renew as the "failure to reinstate, continue, or extend the franchise relationship." The Court held that the Act prohibits only franchisor conduct that has the effect of ending a franchise. Thus, the franchisees could not recover for constructive termination if the franchisor's allegedly wrongful conduct did not compel the franchisees to abandon their franchises. The Court also held that a franchisee who signs and operates under a renewal agreement with a franchisor may not maintain a constructive nonrenewal claim under the Act. Signing their renewal agreements "under protest" did not preserve the franchisees' ability to assert nonrenewal claims. (March 2, 2010) 

In UPMC-Braddock Hospital v. Kathleen Sebelius, the United States Court of Appeals for the Third Circuit considered whether a healthcare provider, UPMC-Braddock Hospital, was entitled to reimbursement under Medicare regulations for loss of depreciable assets following a merger between Braddock Medical Center and the University of Pittsburgh Medical Center System. The Third Circuit explained that a merger may result in a depreciation adjustment, but only if the merger was between "unrelated" parties and constituted a "bona fide sale." The Third Circuit held that the District Court erred when it determined that the merger between the two facilities was not a bona fide sale because the District Court's conclusion that reasonable consideration was not exchanged was erroneous. The court remanded the matter to the District Court to reconsider its determination as to "reasonable consideration" in light of the Third Circuit's analysis. The Third Circuit further held that the question of whether the merging parties are related (the second prong of the depreciation adjustment analysis) turns only on a consideration of the parties' relationship prior to the merger: "[T]he plain language of the regulations makes it clear that, for the purposes of the related parties inquiry..., the relevant question is whether the parties were related prior to the merger." (January 20, 2010) 

In Whittington v. Dragon Group, L.L.C., the Supreme Court of Delaware, in a matter of first impression, addressed whether the presence of the word "seal" next to an individual's signature is all that is necessary to create a specialty contract, also known as a sealed instrument, when the contract at issue is not a mortgage or deed. The statute of limitations for contracts signed under seal is 20 years. The statute of limitations for contracts that are not signed under seal is three years. The Court of Chancery ruled that while "documents of debt, such as mortgages or promissory notes, escape the three-year limitation if they contain the most minimal reference to a seal, actions arising from other types of contracts must show a clearer intent to enter into a contract under seal." The Supreme Court disagreed, holding that, in Delaware, "in the case of an individual, in contrast to a corporation, the presence of the word 'seal' next to an individual's signature is all that is necessary to create a sealed instrument, 'irrespective of whether there is any indication in the body of the obligation itself that it was intended to be a sealed instrument.'" (December 18, 2009) 

In Vallies v. Sky Bank, the United States Court of Appeals for the Third Circuit addressed the requirements for showing a disclosure violation under the Truth in Lending Act (TILA). The putative class plaintiffs alleged that Sky Bank failed to make all necessary disclosures relating to motor vehicle financing agreements. The bank prevailed on summary judgment at the trial court level. The Third Circuit affirmed, holding that a showing of detrimental reliance is required to recover actual damages for a TILA disclosure violation, and the class plaintiffs neither pled nor made such a showing. (December 31, 2009)

In J.T.'s Tire Serv., Inc. v. United Rentals North America, Inc., the Superior Court of New Jersey, Appellate Division, considered whether the plaintiff stated a cause of action for discriminatory refusal to do business under the Law Against Discrimination Act, N.J.S.A. 10:5-12(1). The plaintiff was a female business owner who sold tires to the defendant, a national equipment rental company. According to the complaint, the defendant's branch manager pressured the plaintiff to engage in a sexual relationship with him and when she refused, he-and eventually the company-stopped doing business with her. The court held that the plaintiff stated a claim for unlawful sex discrimination. The court reasoned that the allegations of the complaint, if proven, amounted to quid pro quo sexual harassment and were a violation of N.J.S.A. 10:5-12(1). The court explained that the "quid pro quo sexual harassment alleged in the complaint, if legally permitted, would stand as a barrier to women's ability to do business on an equal footing with men. Construing N.J.S.A. 10:5-12(1) to prohibit such opprobrious conduct is consistent with the Legislature's intent to eliminate sexual discrimination in contracting." (January 6, 2010)

In Bouriez, et. al. v. Carnegie Mellon University, the United States Court of Appeals for the Third Circuit addressed Pennsylvania's proximate cause test, in a case where the plaintiffs sought to recover funds they invested, through third-party corporations referred to, collectively, as "Governors Technologies," in a project run by defendant, which sought to develop technology that would reduce the environmental impact of industrial waste. The plaintiffs sought to recover funds based upon purportedly fraudulent misrepresentations made by the defendant. The District Court held that the plaintiffs failed to demonstrate an issue of material fact related to their claim that any shortfall in the recovery of investment funds was attributable to the defendant, as opposed to Governors' management of the funds. The Third Circuit concluded that the District Court misapplied the substantial factor test in deciding the proximate cause element of the case. In assessing proximate cause, the relevant question should have been whether the defendant's misrepresentations were a "substantial factor" in causing the plaintiffs' failed investment in Governors, not whether the misrepresentations were a "substantial factor" in causing the shortfall. (October 27, 2009)

In Braun v. Target Corporation, the Superior Court of Pennsylvania addressed the admissibility of evidence of intoxication in a construction accident case. The plaintiff was a construction worker who was injured in a fall on a construction site. The case was tried before a jury, and the verdict was in favor of the defense. The plaintiff appealed arguing, among other things, that evidence of his intoxication was improperly admitted. The Superior Court affirmed, holding that the touchstone for admissibility is whether the evidence suggests more than a mere hint of intoxication. (October 23, 2009)

In United Consumer Financial Services Company v. Carbo, et al., the Superior Court of New Jersey, Appellate Division addressed a class-action appeal related to retail installment sales contracts, and violations of the Door-to-Door Retail Installment Sales Act and the Truth-in-Consumer Contract Warranty and Notice Act. The court upheld the class certification, but found that certain provisions of the Door-to-Door Retail Installment Sales Act are preempted by Federal Trade Commission regulations. (October 22, 2009)

In Zimmerman v. Harrisburg Fudd I, L.P., the Superior Court of Pennsylvania held that a contractor who obtains a judgment against an owner under the Contractor and Subcontractor Payment Act (CASPA) may recover post-judgment interest and penalties, as well as attorneys' fees and expenses incurred to collect the money owed. The contractor was entitled to interest and penalties because the owner's payment withholding was wrongful. The contractor was entitled to attorneys' fees and expenses because the contractor was the "substantially prevailing party" within the meaning of CASPA. (October 19, 2009)

In Century Indemnity Co. v. Certain Underwriters at Lloyd's, London, the United States Court of Appeals for the Third Circuit considered whether the district court properly compelled the parties to submit their dispute, arising out of a set of reinsurance-of-reinsurance agreements, to arbitration. In holding that there was a valid arbitration agreement, the court analyzed the strong presumption in favor of arbitration under the Federal Arbitration Act. The court explained that, in determining whether to compel arbitration, courts must consider: (1) whether there is a valid agreement to arbitrate between the parties; and (2) whether the dispute in question falls within the scope of that agreement. After a lengthy discussion, the court concluded that the federal presumption in favor of arbitration applies to the second prong of the analysis but "probably does not apply to the first question." The court then rejected the appellant's claim that an arbitration agreement must be "express" and "unequivocal" as a substantive standard and, instead, held that "ordinary state-law principles of contract law" apply to the question of whether a valid arbitration agreement exists. (October 15, 2009).

In Gelman v. State Farm Mutual Automobile Insurance Company, the United States Court of Appeals for the Third Circuit reviewed what constitutes a firm offer within the meaning of the Fair Credit Reporting Act (FCRA). The plaintiff asserted that State Farm violated the FCRA by accessing his credit score for the purposes of sending a mailer that advertised insurance for which the plaintiff was qualified. The district court dismissed the complaint for failure to state a claim, finding that State Farm's mailer constituted a firm offer under the FCRA, which is a permissible purpose for obtaining the plaintiff's credit report. The Third Circuit affirmed, holding that a firm offer of insurance is any offer of insurance that will be honored if the consumer is determined to meet the specified criteria used to select the consumer. The mailing need not have value to the consumer as long as it meets this definition. (October 5, 2009) 

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