Matters

Real Estate Brokerage Firm – Dismissal of Discrimination Claims Upheld on Appeal

Successful defense of a luxury real estate brokerage firm in an action alleging discrimination based on sexual orientation and marital status in violation of New York State and City Human Rights Laws.  Herrick secured the complete dismissal of the complaint in the trial court, and then successfully defended the ruling on plaintiffs’ appeal to the Appellate Division, First Department which upheld the dismissal, finding the plaintiffs had no cognizable claims against our clients who had sought to facilitate, not prevent, plaintiffs’ purchase of a cooperative apartment.

Manufacturer – All Claims Dismissed in JAMS Arbitration Initiated by Former CEO

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.

Challenge to New York State’s Charter School Funding Law

Represented the plaintiffs in Brown v. New York, and initially secured a winning ruling in New York State Supreme Court denying a motion to dismiss our lawsuit challenging New York State's method of funding public charter schools. Our clients, five “representative” families whose children attend charter schools in the state and a Charter School advocacy organization for its member New York charter schools (Northeast Charter Schools Network), argued that New York's practice of providing charter students with as little as three-fifths of what district students receive in the same community, violates the state Constitution and disproportionately affects children of color and lower incomes. While we ultimately lost on appeal, the ruling was particularly important as similar claims raised by charter school parents in four others states – North Carolina, New Jersey, Arizona and Texas – all failed to survive lower court defense motions to dismiss.

Business Dispute – Proposed Solar Farm Joint Venture

Successfully defended a New Jersey-based real estate company in litigation filed in New York state court by a potential joint venture partner in the development of New Jersey solar farm installations. When the venture never materialized, the plaintiff filed suit asserting breach of contract and tort claims, and seeking over $10 million in damages. Herrick obtained a dismissal of all claims against the client in the trial court, and won affirmation of the dismissal from the Appellate Division, First Department.

Aviation Services Company – Breach of Contract and Unjust Enrichment Claims

Negotiated a favorable settlement on behalf of an aviation services company to resolve breach of contract and unjust enrichment claims filed in New York federal court in connection with a business venture to purchase and modify a large commercial aircraft for a planned sale to a third-party for use as an executive business jet.

Lelands – Jim Brown’s NFL Championship Ring

Represented Lelands in litigation filed in New York federal court by former National Football League player Jim Brown regarding the recovery of a 1964 NFL championship ring alleged to have been stolen.

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.

International Diamond Grading Network – All Claims Dismissed in Trademark/Unfair Competition Dispute

Following a 7-day trial in New York federal court, Herrick obtained a ruling dismissing all claims against our clients, an international diamond grading network and related individuals, in a hotly-contested trademark and unfair competition dispute in which the opposing party sought damages totaling nearly $140 million, as well as draconian and sweeping permanent injunctive relief, under the Lanham Act. Herrick delivered a ruling to our clients that removed the threat of a devastating damages award and judicial injunction, as well as any liability for the opposing party's attorneys' fees.

Global Automotive Manufacturer – Dismissal of All Claims in Product Liability Litigation

Herrick successfully defended the North American operations of a global automotive manufacturing company in product liability litigation involving claims based upon implied and express warranties, strict liability and negligence, all premised upon alleged property damage to a vehicle and consequential damages to a construction business caused by allegedly defective tires. The court dismissed all claims against our client, finding that the causes of action were barred under the economic loss doctrine.

New York Attorney – Successful Defense of Malpractice Claims

Successful defense of a prominent New York City attorney against malpractice claims related to the plaintiff's participation in a written agreement to provide for the funding of loans in the New York City taxicab industry. This dispute had progressed to a jury trial when the parties entered into a settlement in which the plaintiff voluntarily dismissed the action and agreed to pay all trial costs.

Title Insurance Company – Class Action Defense

Representation of a title insurance company in a class action alleging overcharges on premiums for policies sold to consumers in New Jersey. We settled—on terms favorable to our client—early enough in negotiations to minimize our client's legal fees.  

Trucking Company – Contract Termination/TRO

Representation of Trucking Company in contract termination litigation in U.S. District Court with contract partner/wholesaler attempting to terminate for breach of contract. After hearing, obtained a preliminary injunction preventing termination.

Construction Management Company – Wrongful Termination

Representation of a construction management company in a dispute with NYU Hospitals Center regarding the termination of a multi-million dollar renovation contract. After a trial in Federal Bankruptcy Court, the court held in favor of our client on all counts, entitling them to payment of its outstanding requisitions and dismissal of all claims against them.

Distressed Debt Investor – Mezzanine Loan Foreclosure

Represented a distressed debt investor in foreclosing and conducting UCC secured party sale of portfolio of mezzanine loans securing repo line of credit obligations. One of the mezzanine loan borrowers sought to enjoin the sale; we defeated the TRO application and conducted the sale successfully over the borrower's objection.

International Insurance Company – Breach of Contract

Represented a major international insurance company in breach of contract dispute.

Title Insurance Companies – Class Action Defense

Representation of two title insurance companies in two class actions alleging overcharges on premiums for policies sold to consumers in New York. After extensive litigation, we settled on terms favorable to our clients.

Large Asset Manager – Discrimination Case

Represented a large asset manager in a national origin case based on disability and religion.

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.

Product Manufacturer – Class Action

Represented a product manufacturer in a federal class action involving claims of consumer fraud and product liability.

Telecommunications Company – Class Action Dismissal

Represented a major telecommunications company in a New Jersey class action lawsuit alleging overcharges for telephone services.

Real Estate Development Company – Land Purchase Dispute

Representation of real estate development company in an appeal arising from its $3 million purchase and development of 7.5 acres of land from Hebrew Huntington Congregation. A faction of the congregation challenged the court's order that permitted our client to purchase the land under the Religious Corporations Law. The Second Department upheld the order and dismissed the appeal as moot, recognizing that our client was a bona fide good faith purchaser.

Las Vegas Conference Center Real Estate Investors – Arbitration Victory

Represented one of three investor groups in an existing five million square foot conference and exhibit center in Las Vegas in a seven-week, three-panel arbitration over each investor group's rights and ownership in the project. The panel found that all parties to the transaction, except Herrick's clients, had engaged in wrongful conduct. The conference center, at its completion, will cost more than $1 billion to build and is planned to expand to 12 million square feet.

New York Residential Brokerage Company – Successful Mediation

Representation of a prominent New York residential brokerage company in a successful mediation against a civil rights suit alleging conspiracy with building owners to steer families with children away from apartments.

Title Insurance Company – Agent’s Fraud Imputed to Lender

Representation of a title insurance company against a lender whose agent committed a fraud that caused the loss of the insured mortgage. Our client successfully argued that since the agent acted on behalf of the bank, the fraud could be attributed to the bank and therefore fell under the policy’s exclusion for “acts of the insured.” The court’s ruling will have ramifications in the title insurance and mortgage lending industry since many sub-prime lenders relied upon unscrupulous agents to close their loans, and to the extent any frauds committed by those agents lead to a title loss, the lenders cannot look to the title insurers for indemnification.

Joseph Kahan – Arbitration Award Vacated

Representation of Joseph Kahan in successfully petitioning the Kings County Supreme Court to vacate a rabbinical court's arbitration award regarding competing claims to real properties in Brooklyn and other assets. The arbitration agreement provided that the parties could proceed only with counsel acceptable to the arbitrators. Kahan participated in the arbitration even after the arbitrators rejected his proposed counsel and insisted that he could proceed only with counsel they would select for him. Initially, Kahan proceeded without counsel at all, but as the matter progressed, he realized that the arbitrators' procedures were unfair and he withdrew from the arbitration before the panel ruled. Describing its ruling as one of first impression under New York law, the court agreed that the arbitrators had denied Kahan the right to counsel of his choice, and overturned the award. This case was featured in the November 24th 2009 edition of the New York Law Journal. (26 Misc.3d 615, 889 N.Y.S.2d 839 (2009))

Real Estate Investment Management Companies – Construction Litigation

We defended a large industrial real estate investing entity and its investment management firm in a $90 million construction defect litigation with an industrial tenant in New Jersey. We succeeded in getting most of the plaintiff’s case dismissed on summary judgment, and then settled the rest of the dispute case before trial. The settlement included the plaintiff turning over escrowed back rent to our client and entering into a favorable lease extension.

Real Estate Company – Management Agreement Litigation

Represented a real estate services company in a $20 million lawsuit brought by former customers. The former customers, owners of two large New York City office buildings, claimed that our client, which managed the buildings, had committed numerous acts of wrongdoing over several years, including breaching contracts, fraud, and breaching fiduciary duties. The customers sought to recover all the fees they’d paid our client over the years under New York’s “faithless servant” doctrine. The District Court granted our summary judgment motion, dismissing all of the higher-damage tort and equity claims, and we then settled the remaining breach of contract claim. The former customers lost their appeal to the Second Circuit Court of Appeals, bringing the case to a successful conclusion for our client.

Red Rock Services Trustee – Appellate Victory in Bankruptcy Litigation

Herrick secured an appellate victory for the chapter 7 trustee of bankrupt demolition subcontractor Red Rock Services, affirming a judgment of almost $1 million won in a bankruptcy adversary proceeding in the Eastern District of Pennsylvania. On behalf of the trustee, Herrick sued a general contractor for breach of its obligations under subcontracts with Red Rock in a pair of multimillion dollar construction projects in Baltimore and Boston. After eight days of trial, the trustee was awarded a judgment of almost $1 million, including attorneys' fees. Herrick defended the judgment on appeal to the district court, where it was affirmed, and went on to successfully defend the ruling on the defendant’s second appeal to the Third Circuit, which affirmed the judgments of the bankruptcy court and district court in their entirety.

NYSE Company – Internal Investigation

Representation of the Audit Committee of a New York Stock Exchange listed company to conduct an internal investigation of whistleblower claims brought by a former officer alleging that certain officers and directors had committed accounting fraud and violated the Sarbanes-Oxley Act.

Former Corporate Officer – Successful Defense of Fraud and Unjust Enrichment Claims

Successful defense of a former corporate officer in suits filed in New York and Wisconsin state courts arising from an investor’s claims of fraud and unjust enrichment in connection with alleged misrepresentations about the sales, revenues and future prospects of a business in which the plaintiff had invested.

Successful Defense in Multi-Plaintiff Litigation Alleging Fraud, FLSA and Civil RICO Violations

Defended individuals and related corporations affiliated with a global network of yoga studios in a highly publicized lawsuit in Arizona federal court in which more than two dozen plaintiffs asserted claims including fraud, undue influence, unfair and deceptive business practices, emotional distress, FLSA violations and civil RICO violations. Following a ruling dismissing the majority of claims, this litigation was ultimately terminated when all remaining causes of action asserted in an amended complaint were either dismissed by the court or withdrawn by the plaintiffs.

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.

Appellate Victory for Special Servicer

Representation of a special servicer in a suit against a borrower and three individual guarantors after the borrower procured subordinate financing in violation of a non-recourse carve-out provision. Our client was the special servicer for the lender. In a case of first impression, the New Jersey Appellate Division enforced the non-recourse carve-out provision and imputed personal liability to the borrower and guarantors. It concluded that the disputed clause fixes liability rather than damages and, therefore, does not constitute an unenforceable penalty as the borrower had argued. The Appellate Division also held that the borrower's efforts to “cure” the triggering event did not vitiate personal liability. As a result, the lender properly obtained a $5 million+ deficiency judgment against the borrower and guarantors.

Senior Executive – U.S. Attorney/SEC Investigation

Representation of a senior executive of a national retail brokerage firm in a joint U.S. Attorney/SEC investigation relating to market timing activities. No charges were instituted against the executive.

Madoff Litigation – Filings Against the SEC

We represent a number of victims of Bernard Madoff's Ponzi scheme. In January of 2009, we filed notices of claim with the Securities & Exchange Commission alleging negligence under the Federal Tort Claims Act. The SEC rejected our claims six months later, and on Wednesday, October 14, 2009, we filed the historic and first known lawsuit against the SEC seeking monetary damages under the FTCA, Molchatsky and Schneider v. United States. We were lead counsel on the Molchatsky case and filed two additional cases against the United States on behalf of other Madoff victims. While the Second Circuit ultimately dismissed the action, essentially saying that the SEC had absolute immunity, the case sent a message that Herrick will leave no stone unturned on behalf of its clients. The firm continues to defend Madoff victims in clawback actions initiated against them by the Madoff bankruptcy trustee.

Foreign Insurance Company – Wrongful Discharge Claim

Representation of a foreign insurance company in connection with the wrongful discharge claim from the managing directors of a U.S. subsidiary.

Employees – SEC Investigation

Representation of multiple employees from a public company in an SEC investigation alleging misstatements in the company’s public filings. No charges were instituted.

Hedge Fund Managers – SEC Investigation

Representation of two hedge fund managers in an SEC investigation relating to market timing activities. No charges were instituted.

National Retail Brokerage Firm – Civil Litigation

Representation of a national retail brokerage firm in a state court action alleging sales practice violations.

Executive – SEC Investigation

Representation of an executive of a national retail brokerage firm in a joint U.S. Attorney and SEC action alleging fraud in connection with securities lending.

Stock Brokers – FINRA Investigation

Representation of multiple stock brokers of a national retail brokerage firm in a FINRA investigation into various sales practice violations.

Investor Group – Fraud and Misrepresentation Claims

Represented an investor group in connection with fraud and misrepresentation claims against an investment manager in various private investments.

Regional Brokerage Firm – Investor Claims

Representation of a regional brokerage firm in multiple investor claims alleging fraud and misrepresentation in connection with a failed private placement.

Medical Device Company Executive – Grand Jury and Regulatory Investigations

Represented a medical device company's former Vice President of Sales in parallel federal grand jury and Health and Human Services Department investigations of alleged pay-offs to doctors.

Financial Services Company – Arbitration

Defense of a pre-eminent financial services company in an arbitration involving numerous brokers who left a competitor to work for our client. The competitor claimed breach of non-solicitation and confidentiality provisions in the brokers' contracts.

Securities Trader/Broker-Dealer – Investigations

The principal of a securities trader/broker-dealer in connection with investigations by the New York State Attorney General and the SEC into mutual fund trading practices including market timing and late trading.

Former Government Official – Conflict of Interest Investigation

Represented a former senior official of New York City's Economic Development Corporation before the city's Conflict of Interest Board in connection with publicly reported allegations of improprieties.

Telecommunications Equipment Company – New York City Comptroller Investigation

Represented a major telecommunications company in a high-profile investigation by the Comptroller of the City of New York into the sale of two-way radio equipment. We obtained full payment of multi-million dollar invoices for the company.

Asphalt Contractor – Post 9/11 Reconstruction Bidding Dispute

Representation of an asphalt contractor in challenging the bidding procedure used by New York City and utility companies to award significant street reconstruction work near the World Trade Center site after the September 11th terrorist attacks. We obtained several temporary stays on the grounds that the bidding procedure violated public procurement laws. The city cancelled its invitation to bid and used a different procurement procedure.

Subsidized Housing Project Sponsor – Market Rate Conversion

Represented a sponsor in settling a litigation involving the sponsor's effort to convert one of New York City's largest Mitchell-Lama subsidized housing projects (1,200 units on Manhattan's Upper East Side) to market rate housing. The settlement involved the creation of entirely new subsidy programs by the city and by the sponsor, and an approximately $550 million condominium conversion.