Litigation

Represented a real estate developer in a multiparty litigation involving alleged construction defects resulting from the conversion of a 17-story refrigerated building into a condominium property. Herrick replaced prior counsel, and was able to quickly settle lawsuits that had been pending in both federal and state court in New York for over a year.

Conducted an insider trading investigation on behalf of the boards of directors of two affiliated publicly owned computer software companies, and represented them in a related SEC investigation.

Representation of more than 275 securities brokers of a number of national retail brokerage firms in proceedings before the NY State insurance department on issues concerning annuity exchanges (regulation 60 violations). We were successful in convincing the department to drop approximately 90% of the cases with no formal action and received favorable settlements in the case of the other 10% of the other advisors.

A leading futures and options broker in a civil litigation stemming from a $200 million fraud perpetrated by a hedge fund manager.

Successful defense of a branch manager of a national retail brokerage firm. Following a hearing, the hearing panel dismissed all of the NASD's charges, including allegations of supervisory failures. The dismissal was upheld on appeal by the NASD to the NASD's National Adjudicatory Council.

Successful defense of our client against trade dress claims brought by Montblanc over its "three-ring" pen design. We reached a settlement with no economic impact on our client. Montblanc-Simplo GMBH v. Omas SRL and Marcovici Designs, Inc., No. 97 Civ. 2055 (S.D.N.Y. 1997)

Successful defense of trade dress claims involving plush dolls. Kaufman & Fisher Wish Company, Ltd., v. F.A.O. Schwarz, 184 F.Supp.2d 311 (S.D.N.Y. 2002), aff`d, (2d Cir. order, Oct. 31, 2002)

Representation of the defendant/counterclaimant (an established bio-medical glass manufacturer) in a declaratory judgment action for trademark infringement, based on the Vioxx arthritis drug name. We obtained a very favorable settlement for our client. Merck & Co., Inc. v. Vioxx (ED Pa. 2000)

Kelly v. Duprees MJA, LLC, 2012 U.S. Dist. LEXIS 40597 (D. N.J. March 23, 2012). Represented the Estate of Michael Arnone, a co-founder of the famous 1960's vocal harmony group The Duprees, and its assignee, Duprees MJA, in obtaining summary judgment dismissing all claims alleging fraud on the USPTO, common law trademark infringement and violation of the New Jersey "Truth in Music" Act. The case was brought by a former singer who had joined the Duprees group in 1964, two years after they already had their first major hits, and left the group in the late 1970s, never to perform again. The dismissal on the merits brings to a close a six-year battle over the rights to the DUPREES name and rejects the notion that early members of a performing group can claim rights in the group's name if they abandon the group without securing a partnership agreement to the contrary or a license.

Successfully represented F.A.O. Schwarz in a domain name arbitration awarding our client ownership of four Internet domain names registered in bad faith by a renowned cybersquatter. F.A.O. Schwarz v. Zuccarini, Nat`l Arb. Forum (Dec. 1, 2000)

Successful defense of a major paint manufacturer in a suit in which the New Jersey Supreme Court held that a public nuisance claim brought by 26 cities and counties seeking lead paint abatement and healthcare costs failed as a matter of law.

Defense of a major international consumer products manufacturer in actions arising from misuse of personal care products.

Negotiated a favorable settlement on behalf of a Fortune 500 manufacturer to resolve a legal malpractice action brought against the client’s former counsel, a national law firm, in connection with the firm’s representation of the client in a multi-million dollar product liability litigation. The settlement was reached on the day of jury selection following a ruling granting our client summary judgment on the issue of the defendant’s malpractice.

Defense of the affiliate of a national energy services provider in a consumer fraud class action filed in Pennsylvania federal court by plaintiffs claiming to have been “locked” into variable rate contracts charging purportedly inflated rates for electricity.

Negotiated a favorable settlement on behalf of a national electricity services provider to resolve a putative class action filed in New Jersey federal court by a plaintiff alleging violations of the Telephone Consumer Protection Act (TCPA).

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.

Successfully argued summary judgment motion obtaining dismissal of all claims against a national drug retailer targeted in a proposed class action lawsuit asserting claims for fraud and violations of the NY General Business Law.

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.

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.

Negotiated favorable settlement on behalf of a provider of specialized administrative and corporate governance services to resolve claims of breach of contract, gross negligence and fraud related to administration of trust in connection with a portfolio of student loan backed notes.