Real Estate LLC Shareholder – Breach of Fiduciary Duty Claims against Managing Member
Representing a significant stakeholder in 16 LLC’s which own and manage approximately 30 income-producing properties in Manhattan in pursuing breach of fiduciary duty and fraudulent inducement claims as well as derivative claims for waste, conversion and unjust enrichment against the managing member alleged to have capitalized on his control of the LLCs by siphoning off millions of dollars to enrich himself.
Pharmaceutical Company – Dismissal from Consumer Fraud Class Action
Herrick secured a significant win for a pharmaceutical company in a New Jersey federal court ruling dismissing our client from a putative class action for failure to state a claim. The wide-ranging lawsuit involved allegations concerning alleged violations of consumer fraud laws in the marketing of product.
Aircraft Retrofitter – Litigation in Connection with Aircraft Sale
Defense of an aircraft retrofitter in litigation filed in New York federal court alleging that the company conspired with a multinational aerospace and transportation company, named as a co-defendant, to sell a nearly $22 million jet to the plaintiff by falsely claiming the aircraft could be modified to fly internationally. Claims include fraud, negligent misrepresentation, and fraudulent inducement.
Ukrainian Technology Services Company – Breached Master Service Agreement
Herrick secured an extremely favorable settlement on behalf of a Ukraine-based technology service provider, resolving its claims against a US-based multinational financial services company in connection with more than $6 million in software development services rendered by our client. Significantly, this settlement was accomplished without engaging in potentially extensive and costly litigation.
Restructuring Consultants – Negotiations to Recover Unpaid Fees
Representing investment bankers in negotiations to recover over $1 million in unpaid fees for their consulting roles in the restructuring of a US-based financial services firm.
Outdoor Advertising Company – Preliminary Injunction Secured in Dispute over Times Square Billboard Lease
Represented a major outdoor advertising billboard company in seeking a permanent injunction to prevent the termination of a valuable lease for an iconic LED billboard space in the heart of Times Square. Following the landlord’s refusal to honor our client’s right to exercise a 10-year renewal option in the lease, Herrick secured a temporary restraining order preventing the defendants from taking steps to terminate or otherwise interfere with our client’s possession of the space. When negotiations failed to resolve the differences between the parties, Herrick successfully argued for a preliminary injunction pending a determination on the merits. In the wake of these successes, and on the eve of arguments on our motion for summary judgment, Herrick was able to negotiate a very favorable settlement that allowed our client to renew the lease and maintain its possession of the billboard space.
Multinational Cosmetics Company – Favorable Resolution to Breach of Contract Action
Represented a multinational cosmetics company in litigation filed in New York federal court by a Washington, DC area retailer asserting breach of contract, detrimental reliance, and tortuous interference claims, which sought monetary damages and a preliminary injunction preventing our client from violating a retailer agreement that allegedly required it to supply cosmetic products to the plaintiff. After obtaining an order denying the plaintiff’s motion for a preliminary injunction, Herrick negotiated a settlement on favorable terms that resolved the litigation.
Real Estate Developers – Breach of Promissory Note and Fraudulent Conveyance Claims
Representing real estate developers in their efforts to pursue damages in excess of $10 million against the estate of a former “asset rich but cash poor” business partner who had defaulted on a short term, multimillion dollar loan - originally guaranteed and later acquired by our clients - for the purpose of co-investing in real estate deals. In addition to a claim for breach of a promissory note, this litigation includes multiple fraudulent conveyance claims against the executors of the estate as well as a myriad of shell entities we allege were created to receive the estate’s assets - including a large diamond manufacturing businesses and substantial real estate holdings - in an effort to avoid creditors’ claims.
Commercial Bank – All Claims Dismissed in Litigation over Failed Loan
Negotiated a settlement on behalf of a commercial bank resulting in the voluntary dismissal of all claims filed in a New Jersey state court by an asset manager seeking to hold the bank responsible for losses on a failed loan made to a furniture business prior to the business’ bankruptcy filing. Claiming that it had been induced into extending the loan based, in part, on a multi- million revolving credit line extended to the business by our client, the plaintiff argued that the credit line and our client’s alleged failure to adequately monitor the business gave the plaintiff the impression that the business was is better financial shape than it was. Following Herrick’s filing of a third-party complaint, repeated motions to dismiss and an aggressive discovery, the plaintiff dismissed its claims against our client without any payment or admission of wrongdoing while negotiating settlements from the remaining defendants.
Appellate Victory Dismissing Former Employer’s Claims against Asset Management Executive
Herrick secured a complete appellate victory in its defense of a hedge fund industry veteran against claims asserted by an asset management firm, where the client had formerly been employed as joint CEO. In its ruling, the Appellate Division, First Department unanimously reversed, with costs, the trial court’s order denying our motion to dismiss the complaint. In its opinion, the appellate court agreed that the plaintiff’s breach of contract, promissory estoppel and unjust enrichment claims, arising from an alleged oral agreement, were time-barred.
Multiple Claims Dismissed in Shareholder Derivative Litigation
Secured a ruling in Kings County Supreme Court on behalf of a garment manufacturer and certain affiliated individuals and entities that dismissed several causes of action in a purported shareholder derivative suit. Among the claims asserted was the allegation that a competing entity had been used by certain defendants to usurp business opportunities, and that ownership of a company facility had been fraudulently transferred to a charitable trust and foundation. The court granted our motion to dismiss the claim for a constructive trust over either the alleged competing entity or the foundation; an unjust enrichment claim against the charitable trust and foundation defendants; and a claim of rescission of the alleged fraudulent transfer of the facility, which the court found was time-barred.
Real Estate Developers – Summary Judgment in Litigation over Recourse Provision in Mezzanine Loan Guaranty
Defense of the guarantors of a multimillion dollar mezzanine loan secured for the development of several Florida condominium projects in an action filed by the lender in New York federal court. Seeking the full outstanding balance of the loan with interest, an amount totaling nearly $190 million, the lender claimed that certain transfers out of an escrow account holding condominium purchasers’ deposits triggered a full recourse provision in the guaranty. Herrick successfully argued that the full recourse provision of the guaranty was never triggered, obtaining a ruling granting our motion for summary judgment and dismissing all claims against our clients.
Borrower – Negotiated Settlement to Resolve Dispute with Guarantor
Negotiated a favorable settlement on behalf of a borrower to resolve litigation initiated by a guarantor seeking to recover damages arising from our client’s alleged default on loans totaling over $7 million.
Menswear Designer and Manufacturer – Licensing Agreement Dispute
Represented a formal menswear designer and manufacturer as defendant and third-party plaintiff in a dispute over alleged material omissions made during negotiations to renew a licensing agreement for several well-known clothing brands.
Major League Sports Team – Dismissal of False Advertising Class Action
Successful defense of a major league professional sports team, obtaining pre-motion dismissal of all claims in a high-profile putative class action alleging deceptive trade practices and false advertising in connection with a very large sale of memorabilia.
New York Court of Appeals Victory for Capital One N.A.
Won an important victory before the New York Court of Appeals on behalf of a major national bank regarding the shortening of the limitations period contained in New York’s UCC 4-406 which governs a bank customer's duty to discover and report unauthorized signatures or alterations. In a significant decision for the banking industry, the Court of Appeals held that two financially sophisticated parties can modify UCC 4-406’s statutory one-year period for reporting unauthorized activity to 14 days, the time frame provided for in the bank documents between the parties. Herrick represented Capital One through every stage of the dispute, obtaining dismissal of the customer’s complaint at the trial court which awarded summary judgment to Capital One on all of its counterclaims.
Manufacturer – Summary Judgment in Breach of Contract Action
Successfully represented a Queens, NY-based packaging manufacturer, obtaining summary judgment in a New York state court breach of contract action against a former customer who failed to pay for goods ordered and received.
DataTreasury – Appellate Court Upholds Dismissal of Complaint Seeking $15 Billion in Damages
Secured a victory for DataTreasury and its officers before the Appellate Division, Second Department, obtaining a ruling affirming the trial court's dismissal of a complaint seeking $15 billion in damages filed by a purported joint venture partner claiming fraud and the alleged breach of an oral joint venture involving a patent for check imaging technology. In affirming the dismissal, the appellate court held that the breach of contract claim was time barred, and that the fraud claims lacked the requisite specificity and were duplicative of the breach of contract claims.
Privately Held Manufacturer – All Claims Dismissed in JAMS Arbitration Initiated by Former CEO and Majority Shareholder
Achieved total victory for a promotional products manufacturer and distributor, defeating all claims asserted in an arbitration for breach of employment and shareholders agreements, breach of fiduciary duty, and shareholder oppression initiated by the company’s former CEO and former majority shareholder. The panel found that the claimant had indeed been properly terminated, referencing numerous instances in which the claimant charged the client for non-business related expenses or used company resources to conduct side businesses for the sole benefit of the claimant’s friends and relatives. Finding the remaining claims meritless, the panel ultimately found our client, as the prevailing party, entitled to recover the full costs of the arbitration, including legal fees.
Commercial Bank – Pre-Trial Dismissal of Negligence Claims
Obtained pre-trial dismissal of negligence claims against a commercial bank in connection with a former employee's misappropriation and embezzlement of plaintiff's assets.
Ireland-based Company – Dismissal for Lack of Jurisdiction
Successful defense of an Ireland-based entity in litigation asserting fraud and breach of warranty claims arising from alleged misstatements and omissions of material facts made in the shareholder’s agreement of a venture formed to lay an undersea telecommunications cable between Ireland and Wales. Secured the client’s dismissal from the action based on lack of personal jurisdiction.
National Energy Services Provider – Certification Denied in Consumer Fraud Class Action
Achieved a significant victory on behalf of a national energy services provider by defeating class certification sought by plaintiffs in a putative class action in Pennsylvania federal court, which targeted our client’s affiliate. Claiming to have been the victims of a scheme that “locked” them into variable rate contracts charging purportedly inflated rates for electricity service, plaintiffs sought certification allowing them to sue on behalf of practically anyone currently living in Pennsylvania that ever entered into a variable rate residential electric contract with the company. In its ruling, the court denied class certification on typicality, adequacy, predominance, and commonality. Herrick continues to represent the client on the plaintiffs’ appeal.
Real Estate Finance Company – Entry and Collection of $12 Million Judgment
Herrick obtained the entry of a judgment totaling approximately $12 million against a real estate developer, two of his sons, and their affiliated entities. Following the entry of judgment, the judgment debtors refused to comply with multiple court orders holding the defendants in contempt and compelling them to respond to a variety of subpoenas. Herrick conducted depositions and other discovery regarding the judgment debtors' ability to pay and, upon doing so, filed an application for an installment payment order under C.P.L.R. § 5226. Following a four-day hearing before a court-appointed referee, the referee found one of the judgment debtors had an imputed annual income of $370,000 and that two of the other judgment debtors each had imputed annual incomes of $830,000. On that basis, the referee recommended, and the Supreme Court confirmed, that the judgment debtors are required to pay $406,000.00 per annum to Herrick's client, in equal installments of $33,833 per month, until the amounts due on the judgment have been paid and satisfied in full.
Taxi Medallion Financing Company – $27.5 Million Judgment
Represented a large specialty financing company in enforcing a series of agreements that provided the company with an interest in the appreciation of the underlying collateral. Following extensive briefing on a summary judgment motion, the court rejected defenses based on usury and the Small Business Investment Act and issued a $27.5 million judgment in favor of our client.
Specialty Finance Company – Summary Judgment Upheld on Appeal
Herrick secured an appellate win for a specialty finance company, successfully defending the trial court's decision granting our motion for summary judgment and awarding money damages with costs. The underlying dispute involved a borrower’s failure to pay a multi-million dollar participatory interest - a percentage of the collateral’s appreciation - in addition to a fixed interest monthly payment under the terms of a $16 million credit arrangement to finance the purchase of taxi medallions. The Appellate Division, First Department affirmed the trial court’s decision, rejecting the borrower’s counterclaims that the participatory interest provision to which it had agreed violated New York law and the federal Small Business Investment Act of 1958.
Former Owners of Acquired Business – Litigation to Recoup Monies Held in Escrow
Representing the former owners of a designer and distributor of mechanical and chemical fastening products acquired by a Fortune 500 manufacturer of industrial tools and household hardware in litigation to recoup monies held in an escrow account as indemnification payments for post-closing risks. Dispute involves issues related to import tariff and customs duties imposed by Canadian authorities on products imported by the acquired business from the Republic of China.
Trust Administrator – Breach of Contract
Defending a provider of specialized administrative and corporate governance services against accusations of contractual breach and negligence in connection with the administration of trust issues related to a portfolio of student loan backed notes.
Bain v. Silverpoint – International Finance Dispute
Represented the owner of an Estonian galvanized steel plant known as Galvex in his dispute with Silverpoint, a hedge fund. The owner sued Silverpoint for breach of an agreement permitting the owner to sell or restructure the plant's debt, and promising to pay the owner millions of dollars. Silverpoint moved to dismiss the case on jurisdictional and forum non conveniens grounds, but Herrick defeated the motion and the litigation proceeded to a satisfactory conclusion in New York. (Bain v. Silverpoint (Slip Op. N.Y. Co. 2007))
Severodonetsk Azot – Stopping Improper Government Seizure of Privatized Plant in Ukraine
Representation of a U.S.-based chemical company in a hard-fought dispute over the massive chemical plant, Severodonetsk Azot, in Eastern Ukraine. Corrupt political forces in Ukraine took control of our client’s plant through the commencement of a bogus lawsuit in Kiev and the outright seizure of the plant by a private militia. Herrick argued an appeal in Kiev’s court of appeals and also met, in Kiev, with Ukrainian ministries and the U.S. Embassy as part of a concerted effort to exert political pressure on the Ukrainian government to end the illegal actions.
As part of these efforts, Herrick alerted the New York Times to situation and the Times, in investigating the story, uncovered that the political dispute over the Severodonetsk Azot plant had led to Ukrainian President Yushchenko dismissing his prime minister and the rest of her government. See Deal for Ukraine Company Renews Charges of Abuse (The New York Times, Sept. 15 2005). The Ukrainian Supreme Court ultimately reversed the Kiev court and upheld our client’s ownership of the plant.
Securities Broker – Summary Judgment in Raiding Dispute
A broker-dealer and its employees in a "raiding" dispute brought by a rival broker-dealer, including claims of corporate espionage and theft of trade secrets. After a number of the plaintiff's claims were dismissed at the pleading stage, we obtained summary judgment in favor of our clients and dismissal of the remaining causes of action.
Tire Manufacturer – Antitrust Litigation
Represented a tire manufacturer in successfully defending an antitrust suit brought by an authorized dealer claiming that the manufacturer failed to make a tire available to the dealer that it made available to other authorized dealers.
Joint Venture Partner – $40 Million Construction Agreement Dispute
Represented a joint venture in connection with disputes arising out of DEP construction agreements worth in excess of $40 million.
Consumer Products Manufacturer – All Claims Dismissed in Bankruptcy Adversary Proceeding
Successfully defended a multinational consumer products company in a New York federal bankruptcy action filed by a public relations and marketing firm asserting breach of contract, quantum meruit and promissory estoppel claims stemming from the termination of service agreements between the parties. Herrick obtained pre-trial rulings denying the plaintiff’s motion for summary judgment on the pleadings and dismissing a claim for defamation by inference. Following a bench trial on the merits, the remaining 12 claims against our client were dismissed in a judgment that also awarded substantial damages on our client’s counterclaim.
Mezzanine Lender – Term Sheet Breach
Representation of a mezzanine lender in an action in New York State Supreme Court against a borrower for breach of a term sheet. The court granted our motion for summary judgment and awarded damages.
Consumer Products Manufacturer – Paraguayan Litigation
Represented an international consumer products manufacturer in a legal action brought against it in Paraguay. We are working with the U.S. State Department to deal with the unusual legal rulings involved.
Multi – State Litigation
Representation of litigants in five actions in multiple states and related litigation in two foreign countries in connection with a billion dollar claim involving the sale of a company.
Robert W. Seavey – Victory in $500 Million RICO Case
Representation of Robert W. Seavey, real estate developer and owner, in obtaining a U.S. District Court summary judgment dismissing a $500 million RICO case. The suit also named members of his family, the management company and accounting firm. The court found that the plaintiffs and their forensic accounting firm had failed to find any evidence supporting their claims. The decision appears to be the first New York decision that found that the federal bank fraud statute cannot serve as a predicate act in a RICO case when the plaintiff is not a financial institution. All state court claims were dismissed.
Financial Institution – Breach of Fiduciary Duty Defense
Representation of a large financial institution alleged to have breached its duties to a customer in connection with the diversification of a large account. We litigated the matter to a point where it could be settled through mediation on terms very favorable to our client.
Telecommunications Company Founder – Breakup and Sale Dispute
Representation of the founder of a pre-paid telephone card company in successfully defending a suit by alleged former partners seeking $250 million in damages related to the $400 million sale of the company to a publicly held telecom company.
Technology Company – Licensing Dispute
Representing the developer of an innovative insurance product in litigation filed in New York State court arising from the alleged breach of a licensing agreement giving our client exclusive access to certain data that serves as the foundation for the new product.
Breach of Contract, Fraud and Unjust Enrichment Claims against Brazilian Bank
Successfully represented a U.S. specialty food manufacturer and importer in litigation filed in New Jersey federal court asserting breach of contract, fraud and unjust enrichment claims against a Brazilian bank and certain suppliers in connection with the bank’s alleged improper drawing on a standby letter of credit arranged by our client to finance the manufacture of food products in Brazil. After obtaining a recommendation from the Magistrate Judge, later confirmed by the district court, denying the bank’s motion to dismiss for lack of personal jurisdiction, Herrick secured a favorable settlement that resolved claims against the bank and later obtained a default judgment against the Brazilian supplier entities.
Private Equity Firm – Breach of Contract Claims
Defending a global life sciences private equity fund, several related entities and individual defendants in a federal lawsuit brought by a former general counsel and partner alleging breaches of certain partnership and employment agreements.
Global Manufacturer – Vendor Contract Dispute
Representation of a global manufacturer in resolving breach of contract claims filed in New York state court by a travel services consortium in connection with an agreement to provide global travel management services.
National Drug Retailers – Litigation to Recover Property Tax Overcharges
Represented national drug retailers in lawsuits alleging that property managers over billed them millions of dollars for their share of property taxes - successfully opposing the property managers’ motions to dismiss in the trial court and on appeal before the New York Supreme Court's Appellate Division.
Nedagro B.V. v. Zao Konversbank – Enforcement of Foreign Arbitration Award
Representation of a Dutch agricultural company in successfully pursuing enforcement of an international arbitration award under the New York Convention. (Nedagro B.V. v. Zao Konversbank, 23 U.S. Dist. Lexis 787 (S.D.N.Y. 2003))
Base Metal Trading S.A. v. Russian Aluminum – Battle Between Russian Oligarchs
When Russia's famous "Aluminum Wars" reached U.S. shores, Herrick represented of one of the plaintiff groups in U.S. Federal court litigation against entities controlled by Russian oligarchs Oleg Deripaska and Mikhail Chernoy. (Base Metal Trading S.A. v. Russian Aluminum. 2002 U.S. Dist. Lexis 8516 (S.D.N.Y. 2002))
Telecommunications Company – Lanham Act Litigation and Government Investigations
Representation of a large prepaid calling card company in litigation brought by a competitor under the Lanham Act. We also counsel the company in investigations by various states' attorneys general and the Federal Trade Commission.
Product Manufacturer – Class Action
Represented a product manufacturer in federal class action involving claims of consumer fraud and product liability.
Multinational Tire Manufacturer – Consumer Fraud Class Action Defense
Successful defense of the North American subsidiary of a multinational automotive parts manufacturer in national consumer fraud class actions involving allegations that an innovative tire design was more susceptible to road hazard damage than regular tires. The firm’s successes on behalf of the client include obtaining an important, precedent setting decision from the Third Circuit Court of Appeals that vacated the lower court’s certification of a limited New Jersey sub-class of plaintiffs, and then later securing the dismissal of all but one of the claims asserted in a copycat class action, effectively precluding the plaintiffs from further pursuing the litigation.
New York State Association for Affordable Housing – Challenge to Local Law 44
Representing the New York State Association for Affordable Housing and individual developers in litigation seeking to invalidate Local Law 44 - which requires any developer receiving city funding to submit quarterly wage reports - as unconstitutional, pre-empted by New York state law, and imposing an unreasonable economic burden on small businesses competing for affordable housing work.