Michael C. Rakower

Email Service on Chinese Nationals Is Permissible Under Federal Rules When Physical Address Is Unknown After Reasonable Diligence

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Last year, we covered a decision in which the Southern District of New York permitted alternate service on defendants residing in China after plaintiffs were unable through the exercise of reasonable diligence to discover the defendants’ physical addresses.  (Analysis available HERE.) In Orient Plus International Ltd. v. Baosheng Media Group Holdings Ltd., 2024 WL 2317715 … Read more

Refusal to Negotiate SOWs Not a Breach of Duty of Good Faith and Fair Dealing Where Governing Contract Allowed, but Did Not Require, SOWs

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In Skanska USA Building, Inc. v. Regeneron Pharmaceuticals, Inc., 2024 WL 3214731 (S.D.N.Y. Jul. 1, 2024), the Southern District of New York distinguished between master services agreements that contemplate future statements of work (“SOW”) and those that require them.  Under the former, refusal to negotiate future SOWs does not give rise to a claim for … Read more

Southern District of New York Treats Canadian Corporation-Partnership Hybrid as Partnership for Diversity Jurisdiction Purposes

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In MaxBounty, ULC v. Zocdoc Inc., 24-cv-3307 (S.D.N.Y. Jul. 3, 2014), the Southern District of New York held that a Canadian “unlimited liability corporation” should be treated as a partnership for purposes of determining whether the court has diversity jurisdiction. The requirements for establishing federal diversity jurisdiction are well established when it comes to natural … Read more

New York Court of Appeals Rescues Shareholder Claim Under Scotting Law for Breach of Fiduciary Duty Against Corporate Directors

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In Eccles v. Shamrock Capital Advisors, LLC, 2024 WL 2331737 (N.Y. Ct. App. May 23, 2024), the New York Court of Appeals resuscitated a case dismissed by the Appellate Division, holding that plaintiffs—a group of over 100 common shareholders and founding members of FanDuel Ltd. (“FanDuel”), a Scottish online sports fantasy company—had sufficiently pled a breach of fiduciary claim under Scottish law against corporate directors.  Plaintiffs alleged that defendants had engaged in a scheme to benefit exclusively from the proceeds of a 2018 merger between FanDuel and the Dublin-based sports gambling company Paddy Power Betfair plc, and to eviscerate the interests of the common shareholders and founding members.  This case may have huge financial implications in that approximately two years later Flutter Entertainment plc acquired a 37.2% stake in FanDuel for $4.2 billion… Read more

Federal Court Finds No Alter Ego Even Though Parent Company Was “No Stranger” to Its Subsidiary’s Contract

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In Torricelli v. VB Asset Management, LLC, 23-CV-9176 (VEC), 2024 WL 1718820 (S.D.N.Y. Apr. 22, 2024), the court applied two seemingly contradictory doctrines when dismissing an alter-ego based breach of contract claim under Delaware law and a claim for tortious interference with contract under New York law, each brought against an investment company concerning a contract with its wholly-owned subsidiary.  The court’s decision highlights the fact that courts will respect the twin realities of corporate separateness and a parent company’s role in overseeing its subsidiary… Read more

Alter Ego Liability Requires More than Dominion or Control

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In Aaron Richard Golub, Esquire, P.C. v. Blum, 23-cv-10102 (S.D.N.Y. Apr. 1, 2024), the court dismissed a claim for quantum meruit asserted against an owner of the co-defendant corporation because the complaint failed to plead sufficiently that the owner’s alleged dominion over the defendant corporation caused the plaintiff’s alleged injury… Read more

Fiduciary Duty Established by Contract May Be Released by Contract, Too

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In Stephanie Clegg v. Sotheby’s, 23-cv-01995, 2003 WL 8281487 (S.D.N.Y. Nov. 30, 2023), the Southern District of New York held that the fiduciary duties of a consignee could be defined by a written consignment agreement and further modified by subsequent written agreements between the parties… Read more

Federal Court Declines to Exercise Jurisdiction Over New York Plaintiffs’ Class Action Against Foreign Corporation Where NY Subsidiary Was Principally Liable for Plaintiffs’ Alleged Injuries

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In St. John v. Adesa, Inc., 22-CV-1257 (E.D.N.Y. Sept. 21, 2023), the court dismissed plaintiff’s nascent class action under the Local Controversy Exception to CAFA jurisdiction, after joining defendant’s local subsidiary as a defendant… Read more

Court Grants Preliminary Injunction to Preserve Status Quo in Business Dispute

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In Yee v. Chen, Index No. 704057/23 (N.Y. Sup. Ct., Queens Cnty. Sep. 27, 2023), the court granted a preliminary injunction to preserve the status quo of the parties’ business pending resolution of claims concerning misconduct by the managing member… Read more

Statute of Frauds Did Not Preclude Enforcement of Oral Agreement for the Payment of Money Over Period of Years

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In Robinson v. Synergy Alternative Capital, LLC, 652043/2020 (N.Y. Sup. Ct., N.Y. County), the court held that the statute of frauds did not preclude enforcement of an alleged oral agreement to pay a discretionary bonus over a period of several years, where the company could have paid the bonus within one year… Read more

Electronic Service on Defendants Governed by Hague Convention Permissible when Physical Addresses Are Not Reasonably Ascertainable

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In The Kyjen Company, LLC v. The Individuals, Corporations, Limited Liability Companies, Partnerships, and Unincorporated Associations Identified on Schedule A to the Complaint, 1:23-cv-00612-JHP (S.D.N.Y.), the Court permitted electronic service of process on certain foreign defendants, even though such service generally would have been prohibited under international law… Read more

Declaratory Judgment Claim Dismissed on Ripeness Grounds Where Too Many Contingent Events Exist for Plaintiff to Show Actual or Threatened Imminent Harm

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The parties in Berardi v. Berardi, Case No. 22-CV-00159, are the owners of certain companies that provide public transportation services throughout New York State and other surrounding areas under various trade names including Trailways and Coach.  The parties entered into a post-nuptial agreement providing that upon dissolution of their marriage, plaintiff would own 49% of the companies and defendant would own 51%.  The parties were divorced in 2009… Read more