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Objecting Merchants Win as Second Circuit Vacates Class Action Settlement for Visa/Mastercard Interchange “Swipe” Fees

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.

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Appeals Court Blocks Construction of “Diller Island” Project

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.

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Famed Sculptor Wins Summary Judgment Against Designer Who Destroyed Artwork

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.

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Former Law Firm Partners Held Not Personally Liable for Future Office Rent

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.

 

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Public Relations Firms File First-Amendment Challenge to New State Lobbying Rules

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.

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ECBA Wins Summary Judgment in Breach of Contract Suit

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.

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In NWM Capital v. Mark Scharfman, et al., Court grants ECBA’s Clients’ Motion for Summary Judgment on the Most Significant Claims in the Complaint

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.

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Eight ECBA Attorneys Named as Super Lawyers; Two Named as Rising Stars

ECBA is proud to announce that partners Richard Emery, Andrew Celli, Matthew Brinckerhoff, Jonathan Abady, Ilann Maazel, Earl WardHal Lieberman, and Dan Kornstein were named as Super Lawyers for 2015. Partner Debra Greenberger and associate Hayley Horowitz were named as Rising Stars.

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ECBA Succeeds in Motion to Disqualify Plaintiffs’ Co-Counsel

ECBA recently succeeded on a motion to disqualify plaintiffs’ co-counsel in a pending litigation in New York Supreme Court.  Retained as special ethics counsel on the disqualification motion, ECBA was able to convince the Court to disqualify the firm because one of its associates had previously represented defendants in the same matter, and had obtained material client confidences, before he moved laterally to the plaintiffs’ firm.

ECBA attorneys Hal R. Lieberman, Hayley Horowitz, and Zoe Salzman handled the disqualification motion.

 

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ECBA Settles Case Challenging Tuition at The Cooper Union

A case brought by ECBA against the Board of Trustees of The Cooper Union, disputing the decision to charge tuition for the first time in the school’s history, has settled.  ECBA represents the Committee to Save Cooper Union (CSCU), a coalition of current and prospective students, alumni, and faculty.  CSCU filed suit in May 2014, arguing that charging tuition violated the trust established by Peter Cooper and seeking to reinstitute free tuition, to provide a full accounting and to implement greater oversight.  As a result of the CSCU lawsuit, the Attorney General of the State of New York launched a confidential investigation into The Cooper Union, which culminated in the settlement announced today.

The settlement agreements, which will be filed today with the Court and which the Court is expected to approve at a hearing on September 14, include a consent decree signed by the CSCU, the Attorney General, and The Cooper Union, as well as a cy pres petition by the Attorney General.  The agreements impose an independent financial monitor; establish a Board committee made up of alumni, students, and faculty that is dedicated to developing a plan for the return to free tuition; require the school’s leadership to make a good faith effort to return to free; and expand the presence of alumni, students, and faculty on the Board of Trustees.

ECBA lead attorney Richard D. Emery explained: “A tragic chapter in this great school’s history has ended. For the past several years, a lack of fiscal restraint, conflicts of interest and a failure of educational vision banished Peter Cooper and his spirit from the school he founded. Cooper built a completely free, merit-based learning institution that encouraged free thinking and produced some of our nation’s greatest minds in the arts and sciences.  These recent years abandoned those values in favor of financial manipulation and debt. Because of the litigation settled today, Peter Cooper is back. Justice for Peter Cooper and all those who benefited from his great experiment is now a promise that must be kept.”

Read more about the settlement in coverage by the Wall Street Journal and the New York Times.

The CSCU Petitioners were represented by ECBA attorneys Richard D. Emery, O. Andrew F. Wilson, and Zoe Salzman.

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