Google Inc. – NJ Appellate Division Affirms Summary Judgment

Represented Google Inc. before the NJ Appellate Division, which affirmed summary judgment granted by the New Jersey Superior Court in favor of Google, dismissing claims by an online merchant for breach of contract and the covenant of good faith and fair dealing. The appellate court upheld the terms and enforceability of Google’s online merchant "click-wrap" agreement, including its liability limitations, while rejecting plaintiff’s claim that it was an unenforceable contract of adhesion. D’Agostino v. Appliances by Phone, Inc., et al., 2016 N.J. Super. Unpub. LEXIS 504 (Mar. 8, 2016).

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.

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.

Developers – Summary Judgment Dismissing Breach of Joint Venture Claims

Obtained summary judgment on behalf of real estate developers dismissing all claims filed by a plaintiff alleging our clients had breached an oral joint venture that entitled the plaintiff to share in the profits of a sale of a Brooklyn property.  The Kings County Supreme Court also denied plaintiff’s cross motion for leave to amend and to compel disclosure. 

Bridgestone Firestone – National Counsel

For over thirty years, Herrick has served as regional counsel in New York and New Jersey for Bridgestone Americas Tire Operations LLC and its predecessors in connection with claims involving tires, rims, roofing materials, children's car seats, retail stores and employment matters. Since the company's recall of tires equipped on Ford Explorer vehicles in 2000, Herrick has acted with a small group of attorneys as National Counsel for the company and, in that capacity, has represented the company in hundreds of litigations pending around the country. Additionally, Firestone looks to Herrick for counsel and advice in crisis management and prevention. Summing up the relationship with the firm, the company's General Counsel stated "In the two decades we've worked with them, Herrick has proven to be the rare combination of top notch trial lawyers with solid business skills who know as much about presenting evidence to a jury as they do about risk management and cost containment."

Global Manufacturer of Building Products – Product Liability Litigation

Represented a global manufacturer of building products in litigation filed by an insurer, as subrogee of the purchaser of two roof systems. Plaintiff asserted claims for negligence, strict products liability and breach of express warranty relating to the alleged failure of those systems in a high wind event. Action was settled and dismissed on terms very favorable to our client.

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.

R.I. Island House LLC v. North Town Phase II Houses, Inc. – Mitchell Lama Contract Dispute

Representation of a major developer in enforcing a $100 million contract to sell a Mitchell Lama project on Roosevelt Island, New York. The trial court dismissed our complaint, but the Second Department, relying on our legal arguments, reversed the lower court and permitted the claim for specific performance to move forward. (R.I. Island House LLC v. North Town Phase II Houses, Inc. (2nd Dep't, May 2008)).

IBE Trade v. Litvinenko – International Litigation Over Privatization

Represented IBE Trade, an international manufacturer and trader of fertilizers, in a complicated case involving the theft by an employee of an entire factory. IBE Trade purchased the factory from the Bulgarian government as part of a privatization program. An IBE employee named Litvinenko then conspired with rogue elements in Bulgaria to fraudulently seize control of the plant, stripping IBE of its ownership interest.

Herrick sued Litvinenko in New York and, after a several-week trial, the trial court ruled in IBE's favor, ordering him to return of control of the plant to IBE and to pay $11 million in damages. Litvinenko refused to comply and was jailed for contempt, remaining incarcerated for over a year and half. Numerous appeals ensued and all, including the incarceration for contempt, were ultimately upheld.

(IBE Trade Corp. v. Litvinenko, 288 A.D.2d 125, 733 N.Y.S.2d 161 (1st Dept. 2001)(Affirming finding of contempt); People ex rel. Kuby v. Warden, Brooklyn House of Detention, 305 A.D.2nd 339, 757 N.Y.S.2d 889 (2nd Dept. 2003)(Refusing to release Litvinenko from incarceration after over a year in jail); IBE Trade Corp. v. Litvinenko, 298 A.D.2d 285, 748 N.Y.S.2d 741 (1st Dept. 2002)(Affirming post-trial decision and judgment awarding ownership); IBE Trade Corp. v. Litvinenko, 835 N.Y.S.2d 557 (1st Dept. 2007)(Affirming $11 million judgment).

Hard Money Lender – Guccione Loan Default

Representation of a lender in collecting on a defaulted loan made to former Penthouse publisher Robert Guccione and his companies. Over a five-year period, the lender foreclosed on four properties in New York and New Jersey and realized additional funds from the sale of Guccione's world-class art collection. Ultimately, the client collected over $35 million on the loan and was substantially paid in full.