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Case Law For In-House Counsel

1st Circuit

Arbitration

CFO’S Rejection of Arbitration Bars Him From Later Requesting it

A defendant, formerly the chief financial officer of the plaintiff corporation, is not entitled to stay the plaintiff’s civil actions against him and to compel arbitration because he had previously waived his right to arbitration.

In Re Tyco International Ltd. Securities Litigation. Docket No. 04-1848. Decided Sept. 7, 2005.

Bankruptcy

Stock Redemption Claims Cannot Be Categorically Subordinated

As a general matter, bankruptcy courts may not use their powers of equitable subordination to downgrade stock redemption claims on a categorical basis, but must evaluate the propriety of equitable subordination case by case.

In Re Merrimac Paper Company, Inc. Docket No. 05-1010. Decided Aug. 25, 2005.

Civil Practice

Arbitration Argument Waived

A defendant hospital – which a jury found liable to pay damages to the plaintiff physician – was not entitled to relief on the basis of an arbitration clause in the parties’ contract, because the hospital forfeited its arbitration argument by not pursuing an interlocutory appeal when that argument was first denied by the trial judge in a summary judgment ruling.

Franceschi, et al. v. Hospital General San Carlos, Inc., et al. Docket Nos. 04-2104 and 04-2105. Decided Aug. 24, 2005.

Class Action Removal Provision Applies Only to Cases After New Law

The removal provision of the Class Action Fairness Act applies only to cases filed after that Act’s Feb. 18, 2005 enactment date.

Natale, et al. v. Pfizer, Inc. Docket No. 05-2203. Decided Sept. 16, 2005.

Criminal

Interception of Stored E-Mail Message Violated Wiretap Act

A judge erred in dismissing an indictment charging a defendant with intercepting an e-mail message in temporary, transient electronic storage, as the indictment stated an offense under the Wiretap Act, as amended by the Electronic Communications Privacy Act of 1986.

United States v. Councilman. Docket No. 03-1383. Decided Aug. 11, 2005.

Securities

Requirement for ‘Controlling Person’ Claims Noted

An essential element of a “controlling person” claim under 䅐(a) of the Securities Exchange Act of 1934 is a showing of a Rule 10b-5 violation by the controlled entity.

In Re Stone & Webster, Inc. Securities Litigation. Docket No. 03-2429. Decided Sept. 13, 2005.

2nd Circuit

Arbitration

Arbitration Clause Not Superseded By Subsequent Agreements

A bank’s arbitration agreement with an account holder is enforceable despite merger and forum selection clauses contained in a series of contracts between the parties.

Bank Julius Baer & Co., Ltd. v. Waxfield Ltd. Docket No. 04-6668. Decided Sept. 13, 2005.

Bankruptcy

Creditors Lack Standing To Settle Debtor’s Adversary Proceeding Against Third Party

A bankruptcy judge erred in granting creditors standing to pursue settlement of an adversary proceeding over the debtor’s objection.

In re Smart World Technologies, LLC, et al. Docket No. 04-3497. Decided Sept. 12, 2005.

Contract

Claim Involving ‘Rebadged’ Cars Not Permitted

A federal judge properly dismissed a plaintiff corporation’s complaint seeking to prevent the defendant from selling “rebadged” cars.

Subaru Distrib. Corp. v. Subaru of America. Docket No. 04-3598. Decided Sept. 22, 2005.

‘Hell or High Water’ Clauses Ruled Enforceable

Under New York law, “hell or high water” clauses making contractual obligations absolute and unconditional are enforceable by good faith assignees against sophisticated parties.

Wells Fargo Bank, N.A. v. Brooksamerica Mortgage Corporation. Docket No. 04-5306). Decided Aug. 15, 2005.

Employment

Night Blindness Qualifies As Handicap Under ADA

A judgment for a defendant employer in a disability discrimination case should be reversed, as the record suggested that the employee suffering from night blindness was fully capable of performing his truck driving job with the reasonable accommodation that he not be required to drive at night.

Capobianco v. City of New York, et al. Docket No. 04-3230. Decided Sept. 1, 2005.

Non-Testifying Witness Protected From Retaliation

Title VII’s anti-retaliation clause forbids an employer from retaliating against an employee who is named as a voluntary witness in a Title VII suit but is never called to testify.

Jute v. Hamilton Sundstrand Corp. Docket No. 04-3927. Decided Aug. 23, 2005.

Insurance

Excess Insurer Not Liable For Counsel Fees

A policyholder, having won summary judgment regarding a coverage dispute with its second-layer excess insurance provider, is not entitled to attorneys’ fees under New York law.

Liberty Surplus Insurance Corp. v. The Segal Co. Docket No. 04-5562. Decided Aug. 9, 2005.

Negligence

Jury Award Against Hospital Reversed

A jury acted impermissibly in awarding a plaintiff negligence damages against a defendant hospital because no evidence existed in the record that would permit a reasonable jury to conclude that the hospital deviated “from the standard of care practiced by hospitals of its type.”

Armstrong v. Brookdale University Hospital and Medical Center. Docket No. 02-7801. Decided Sept. 21, 2005.

Securities

Reliance on Market Price Sufficient To Warrant Judgment for Investor

A trial judge erred in awarding the defendants judgment notwithstanding the verdict in a securities fraud case, as “the testimony at trial was sufficient to establish that [the defendants] privately negotiated a transaction where the market price of the stock, from which the discount at which the stock would be sold to [the plaintiff] was determined, was one of several factors taken into account in [the plaintiff]’s investment decision.”

Black v. Finantra Capital, Inc., et al. Docket No. 03-9206. Decided Aug. 8, 2005.

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