A federal appellate court has upheld ECBA’s clients’ request to obtain discovery in aid of foreign proceedings under 28 U.S.C. s. 1782. In a victory that further defines the contours of the statute, the decision holds for the first time in the Second Circuit that (1) a victim complainant can obtain documents for use in a foreign criminal prosecution, regardless of whether the victim is seeking reparations; and (2) documents obtained for use in one foreign proceeding may be used in other foreign proceedings, absent a contrary court order from the 1782 court. The applicants were represented by ECBA attorneys Dan Kornstein, O. Andrew F. Wilson, and Doug Lieb.
A full copy of the decision can be found here.
Read more about the underlying dispute in a profile published in the New Yorker.
On behalf of clients The City Club of New York, Robert Buchanan, and Tom Fox, ECBA won a victory in federal district court against “Pier 55,” a proposed island performance venue in the Hudson River in Manhattan. The court ruled that the U.S. Army Corps of Engineers was wrong to issue a permit for the project under the Clean Water Act because the project did not need to be built in a waterway to achieve its most important goals. Construction has now been halted. The court’s decision was covered by the New York Times, New York Daily News, and Curbed, among others. ECBA lawyers Richard Emery, Elizabeth Saylor, and Doug Lieb represent the City Club and the other petitioners. Read more about ECBA’s work on this project here and here.
On June 30, 2016, the Second Circuit reversed the District Court’s approval of a class action settlement concerning the fees Visa and Mastercard charge merchants for accepting credit cards. ECBA represents the leading merchant trade groups that objected to the settlement, The National Retail Federation and Retail Industry Leaders Association. ECBA attorneys Andrew G. Celli, Jr. and Debra L. Greenberger wrote one of the two primary objecting merchant appeals briefs; Mr. Celli and ECBA attorney Diane Houk handled the case in the District Court.
The Appellate Division, First Department granted a preliminary injunction today halting construction of the controversial $130 million Pier 55 project on the West Side of Manhattan until it rules on whether the project is lawful. Work crews began pre-construction work on the 2.7-acre landscaped island yesterday and were to begin placing concrete pilings on July 5.
ECBA represents The City Club of New York, Tom Fox, and Robert Buchanan in several actions to challenge the project. Petitioners contend that the project fails to comply with the Hudson River Park Act, and that the environmental review process was inadequate under the State Environmental Quality Review Act. Richard D. Emery, a partner at ECBA, said: “This project is illegal because the Hudson River Park Trust cut corners, deceived the Legislature, and gave away public parkland to a private entity without the proper checks and balances. Today’s decision confirms that Diller Island would cause irreparable harm to the Hudson River and to the public, and that we are likely to succeed in stopping it for good.”
In issuing the preliminary injunction, the Appellate Division made an initial, and tentative, determination that petitioners are likely to succeed on the merits; that petitioners and the public will likely suffer irreparable harm if the injunction is not granted; and that the balance of equities tips in petitioners’ favor.
Petitioners are represented by Richard D. Emery, Elizabeth S. Saylor, and Doug Lieb.
Read coverage of the injunction in The New York Times, Crain’s, the New York Daily News and the Village Voice.
On June 13, 2016, Judge Ostrager of the New York Supreme Court ruled that interior designer Inson Wood and his company were liable for the destruction of three marble sculptures made by famed sculptor Edwina Sandys. Ms. Sandys loaned the sculptures to Mr. Wood for display and sale at the Waterfall Mansion, on Manhattan’s Upper East Side. Months later, her sculptures were returned to her shattered into pieces. After Mr. Wood refused to reimburse her for the broken sculptures, Ms. Sandys sued him and others on claims of breach of contract, breach of fiduciary duty, and negligence, among other charges. A trial on the other issues and other parties will be held in September.
Ms. Sandys is represented by ECBA attorneys Dan Kornstein and Ali Frick.
In a widely watched case, a Manhattan judge ruled on April 1, 2016 that former partners cannot be held personally liable for the remainder of the office lease of Dewey & LeBoeuf LLP, which had filed for bankruptcy in 2012. The landlord had sued hundreds of former partners of the law firm and its Dewey Ballantine predecessors to hold them individually liable for rent until the office lease expired in 2020 — up to $220 million. The court granted motions to dismiss the lawsuit based on the language of the lease and the criteria for personal liability of partners in a limited partnership. The decision is important for the lease obligations of law firm partners.
ECBA partner Dan Kornstein successfully represented 44 former Dewey Ballantine partners in the case.
Five bi-partisan, high-profile public relations firms, represented by Emery Celli Brinckerhoff & Abady and the Center for Competitive Politics, filed a federal lawsuit to block a new rule adopted by the New York’s State Joint Commission on Public Ethics. Under the new rule, every time the public relations firms speak with an editorial board, reporter or other member of the media about any pending, proposed, or ongoing legislation or other government action, they would be required to register with the state and disclose the subject of their communications and extensive details about their businesses and their clients. The rule is unprecedented and unworkable in its expansiveness and, as the plaintiffs’ brief says, “directly inhibits and chills the rights of public relations firms and their clients to participate in discussions of public matters with and in the press, to serve as anonymous sources to the press, and to exercise their core speech and associational rights free from government inspection or the threat of prosecution or sanction.”
The public relations firms–The November Group, Inc., BerlinRosen Public Affairs Ltd, Anat Gerstein, Inc., Risa Heller Communications LLC, and Mercury Public Affairs–are represented by ECBA attorneys Andrew G. Celli, Jr., Ilann M. Maazel, and Hayley Horowitz, and by CCP Attorney Allen Dickerson. The New York Times, the Wall Street Journal, the New York Post, and the New York Daily News have all covered the lawsuit.
ECBA lawyers Dan Kornstein and David Lebowitz recently won summary judgment for $195,000 plus interest for ECBA’s client Schlesinger & Company, LLC as plaintiff in a suit against WWP Office, LLC. The case, in Supreme Court, New York County, was for breach of a commercial real estate brokerage agreement by which our client was to receive additional commissions if the tenant exercised options to renew its lease. Defendant, which was not the original party to the brokerage agreement, argued it had not assumed the obligations to pay the commission. We submitted proof it had. The parties made cross-motions for summary judgment. Judge Cynthia Kern granted our motion in full.
ECBA won an important victory on January 27, 2016 in a partnership dispute that is pending in New York Supreme Court, NWM Capital v. Mark Scharfman, et al. ECBA represents the defendants in the case, the general partners in four real estate partnerships and the managing agent of apartment buildings in Washington Heights, among others. Plaintiff is a limited partner in the partnerships. The Court granted ECBA’s clients’ motion for summary judgment on the most significant claims in the complaint, finding that there was “no basis for these claims.” The Court also denied plaintiff’s motion for summary judgment in its entirety. The value of the dismissed claims, according to plaintiff, was tens of millions of dollars. ECBA attorneys Dan Kornstein and Sam Shapiro represent the defendants.