Sheppard Mullin

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Failure To Specify Attorney’s Role In Internal Investigation Could Cost You The Attorney-Client and Attorney Work-Product Privileges

By Sarah Aberg Recently, in HSBC Guyerzeller Bank AG v. Chascona N.V. et al., Index No. 114705/2003 (Sup. Ct., NY County, June 23, 2010) (“Guyerzeller”), Justice Bernard J. Fried held that the attorney-client and attorney work product privileges did not shield from discovery documents created and maintained by an attorney acting as an investigator.  … Continue Reading

Motion to Dismiss Based Upon Forum Non Conveniens Denied, Despite Presence Of Foreign Defendants And Application Of Foreign Laws

By Eric O’Connor On June 25, 2010, Justice Shirley Werner Kornreich of the Commercial Division issued a Decision and Order, inter alia, denying several foreign defendants’ motion to dismiss based upon forum non conveniens. See Coventry Real Estate Advisors, LLC, et al., v. Developers Diversified Realty Corp., et al., Index No. 115559/09 (Sup. Ct. NY Co., … Continue Reading

Fraud Claim Against Syndicated Lender Allowed To Proceed, Despite Express Disclaimer Of Reliance In Deal Documents

By Daniel L. Brown and Valentina Shenderovich On May 10, 2010, Justice Barbara R. Kapnick permitted a fraud claim to proceed against a syndicated lender despite the fact that the plaintiffs were sophisticated parties and the loan documents contained express disclaimers of reliance. See Harbinger Capital Partners Master Fund I Ltd. v. Wachovia Capital Markets … Continue Reading

Providing Your Adversary With Information “For Settlement Purposes Only” Does Not Necessarily Make It So

By Daniel L. Brown and David A. Schrager In Hudson Ins. Co. v. M.J. Oppenheim, 604411/05 (Sup Ct, NY County, May 25, 2010) ("Hudson"), Justice Bransten held that statements made in an expert consultant’s report prepared in connection with settlement negotiations were not entitled to the usual protections afforded settlement communications and, therefore, were admissible … Continue Reading

Worldwide Economic And Credit Crisis Does Not Provide A Basis To Force A Renegotiation Of Loan Documents

By Eric O’Connor In a recent case in the Commercial Division of the Supreme Court of the State of New York, Justice Bransten granted the lender’s motion for a $50 million summary judgment in lieu of complaint pursuant to CPLR §3213 based upon promissory notes and a guaranty, because borrowers failed to carry their burden … Continue Reading

Electronic Filing Is Now Mandatory When Commencing An Action In The Commercial Division

By Sean J. Kirby On May 24, 2010, the Commercial Division of the Supreme Court of the State of New York, New York County instituted mandatory electronic filing for actions filed in the Commercial Division. As a result, this rule change most Commercial Division matters must now be commenced, and all subsequent filings must be filed, … Continue Reading

Failure to Identify Full Value of Goods Fatal to Damages Claim

By Lisa Lewis On April 21, 2010, Judge Eileen Bransten of the Commercial Division issued a decision granting summary judgment in favor of defendant Brinks Global Services U.S.A. Inc. (“Brinks”) in a breach of contract and negligence action brought by plaintiff Maxine Company, Inc. (“Maxine”). See Maxine Co. Inc. v. Brinks Global Services U.S.A., Inc., Index … Continue Reading

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