Gibbons Law Alert

Gibbons Law Alert

Tagged: New York Law

Second Circuit Clarifies the Pleading Standard for “Substantial Assistance” in SEC Enforcement Cases Against Aiders and Abettors

by

Posted in Appellate / Securities

On November 21, 2012

In SEC v. Apuzzo, the Second Circuit Court of Appeals recently lowered the pleading standard for aiding and abetting of securities fraud in SEC enforcement actions by reversing the District Court’s finding that proximate causation of the ultimate harm was required to establish substantial assistance. When evaluating aiding and abetting claims, courts previously extended the proximate cause requirement that applies in litigation between private parties to SEC enforcement proceedings. The SEC’s complaint in Apuzzo outlined the details of a complex, but calculated, fraud scheme. The defendant-appellee, Joseph Apuzzo, was the CFO of an equipment manufacturer — Terex Corporation.

Broader Coverage May Still Be No Coverage At All: The First Department’s Application of the Prior Pending Claim Exclusion

by

Posted in Insurance

On October 23, 2012

The recent decision by New York’s Appellate Division, First Department in Executive Risk Indemnity, Inc. v Starwood Hotels & Resorts Worldwide, Inc., serves as a grim reminder to insureds to pay careful attention at the time of policy renewal to existing demands from third parties, applicable terms and conditions of expiring and renewal policies, differences in the scope of coverage, and appropriate disclosures. Those who do not run the risk of foregoing the insurance they thought they had without even realizing it.

New York Appeals Court Allows Grouping of Claims to Avoid Individual Deductibles

by

Posted in Insurance

On July 18, 2012

One of the threshold – if not determinative – issues in many insurance coverage disputes is the number of “occurrences” that are presented by a particular set of facts relating to a claim submitted by the policyholder. In a recent decision, a New York appeals court has concluded not only that the relevant policy language allows for grouping of claims into similar “occurrences,” but that additional discovery may be conducted of the parties’ intent and the insurers’ underwriting guidelines and procedures relating to the relevant policy terms. In Mt. Kinley Ins. Co. v. Corning Inc., the Court affirmed the Trial Court’s denial of summary judgment, concluding that the insured’s comprehensive general liability (“CGL”) policies’ “occurrence”-related terms allowed for grouping of claims arising at a common location or at approximately the same time, which may result in a drastically reduced number of deductibles under the applicable policies. Thousands of individuals had brought separate claims against the insured — Corning Inc. — as a result of exposure to two asbestos-containing products. At issue on summary judgment was whether each of these individual claims constituted a separate “occurrence” under Corning’s primary, excess, and umbrella CGL policies, such that each claim would be individually subject to a deductible before the insurers’ coverage was implicated.

The Southern District of New York and the District of Delaware Restore Order to a Chaotic Post-Stern Landscape

by

Posted in General Litigation

On March 7, 2012

Recently, the Southern District of New York and the District of Delaware have issued Amended Standing Orders resolving some of the uncertainty arising from the Supreme Court’s ruling in Stern v. Marshall last term by expressly permitting bankruptcy courts to hear and issue proposed findings of fact and conclusions of law in those matters where they lack the constitutional authority to issue final judgments.

The SDNY’s Recent Application of Janus

by

Posted in Securities

On November 11, 2011

In the few months since the Supreme Court announced the bright line rule of Janus Capital Group, a number of courts have applied the rule, giving us a better picture Rule 10b-5 liability post-Janus. The Supreme Court held in Janus that, for purposes of Rule 10b-5, the maker of a statement is “the person or entity with ultimate authority over the statement, including its content and whether and how to communicate it.” The Court analogized to the relationship between a speechwriter and a speaker: a speechwriter may draft a speech, but the content is within the control of the speaker who delivers it. Thus, the Court found that the investment adviser to a mutual fund was not liable for alleged misrepresentations in the fund’s prospectuses under Rule 10b-5, because the fund, and not the manager, was the maker of the statements.

Beware of Mutual Demand for Attorneys’ Fees in Arbitration Proceedings in Jurisdictions (Such as New York) Which Permit Award in the Absence of Statute or Agreement if Both Parties Demand Fees

by

Posted in General Litigation

On October 14, 2011

It is well-known that, generally, an arbitrator may award attorneys’ fees where the award is authorized by statute or where the parties have agreed that the prevailing party is entitled to fees. Nonetheless, parties in an arbitration often include a demand for attorneys’ fees as a matter of course even where neither circumstance exists. Depending upon the jurisdiction, this practice may have a negative impact.

Connect:

About Gibbons

With 200 attorneys, Gibbons is a leading law firm in New Jersey, New York, Pennsylvania, Delaware, Washington, DC, and Florida, ranked among the nation’s top 200 by The American Lawyer. More…

Subscribe

Archived Blog Posts

Categories