Litigation Archives

Nov 2, 2020

Yellowstone Proceedings and the Pandemic: Do COVID-19 Mandates Frustrate Performance?

The legal press is rife with articles and speculation about the defenses of impossibility and/or frustration of performance to lease defaults triggered by state and local mandates prohibiting or limiting access to businesses. A decision released last week addressed that issue. Rame, LLC leased space at 200 Park Avenue from Metropolitan Realty Mgt., Inc. In September 2020, Metropolitan sent Rame a notice of default, alleging that it owed unpaid rent from December 1, 2017 through September 1, 2020 in the amount of $1,863,821.70, and set a deadline of on or before September 14, 2020 to cure the default. Rame sought… Read more

Oct 23, 2020

Do Inability to Perform Catchall Provisions Excuse Non-Performance Due to the COVID-19 Pandemic?

Many contracts contain an “inability to perform” provision. And these same provisions also often times provide specific excusable reasons for a party to not perform, followed by a catchall statement, setting forth “or any other cause beyond the parties reasonable control, whether or not such other cause shall be similar in nature to those hereinbefore enumerated”. With the COVID-19 pandemic still in full effect, businesses across New York City have begun to face significant economic hardships, and are thus pointing to this catchall statement, as confirmation that they are likely excused from performing their contractual duties. However, they should not… Read more

Oct 5, 2020

The President Authorizes the Antitrust Criminal Penalty Enhancement and Reform Permanent Extension Act

On June 25, 2020, the U.S. House of Representatives and Senate passed identical bills, H.R. 7036 and S. 3377, repealing the sunset provisions of the Antitrust Criminal Penalty Enhancement and Reform Act (“ACPERA”).[1] On October 1, 2020, the President signed into law a continuing resolution. The resolution contains the Antitrust Criminal Penalty Enhancement and Reform Permanent Extension Act, which reauthorizes ACPERA and repeals its sunset provision. [2] ACPERA was enacted in 2004 to encourage antitrust violators to cooperate with government prosecutors and private litigants in antitrust cases. Under the Act, if an amnesty applicant into the Department of Justice’s Antitrust… Read more

Sep 21, 2020

Waiver Of Money Damages And The Inadvertent Consent To Injunctive Relief

When drafting commercial contracts, attorneys often insist on including a provision requiring one or both parties to waive claims for money damages in the event of an alleged breach. For example, commercial leases often include a provision requiring the tenant to waive claims for money damages in matters pertaining to the landlord’s exercise of its judgment in withholding consent or approvals under the lease. While these provisions are intended to reduce risk by removing the exposure to money damages, they may have the unintended consequence of a finding that the parties have contracted for, and consented to, the granting of… Read more

Jul 20, 2020

The East River Divide

Litigation is not mathematics. There is not always a universally accepted equation or answer. Outcomes are often dependent upon the experience-based tendencies of the trial court, or the composition of a jury or appellate court panel. Many considerations go into filing a lawsuit, such as the various theories of liability to be prosecuted, the nature of the relief sought, and the cost-benefit analysis based upon the anticipated expense of litigation. But occasionally, in a suit to be pursued in New York City, an important threshold consideration is in which of the five counties the proceeding should be filed. New York… Read more

Jul 14, 2020

COVID-19 & Force Majeure – Guaranteed Minimum Royalties No More?

Is it still true, as the old saying goes, that it is better to offer no excuse than a bad one? The old adage has trouble holding up in today’s climate. Because of the significant and detrimental impact that COVID-19 has had on the economy, and especially the apparel industry, good excuses are aplenty for licensees in the apparel licensing industry. Due to the pandemic, brand apparel licensees that have entered into license agreements with licensors to use their brand names have had unanticipated difficulty meeting the minimum sales standards and paying minimum royalties. In addition, those licensees are now… Read more

Jun 29, 2020

Congress Reauthorizes the Antitrust Criminal Penalty Enhancement and Reform Act (“ACPERA”)

Sections 212-214 of the Antitrust Criminal Penalty Enhancement and Reform Act (“ACPERA”)[1] might live to see another day. On June 25, 2020, the U.S. House of Representatives and Senate passed identical bills, H.R. 7036 and S. 3377, repealing the Act’s sunset provision.[2] ACPERA, enacted in 2004, aimed to encourage antitrust violators to cooperate with government prosecutors and private litigants in antitrust cases. The carrot: if an amnesty applicant into the Department of Justice’s Antitrust Division’s leniency program provided “satisfactory cooperation” to plaintiffs, the applicant’s Sherman Act (or similar state law) civil damages could be reduced to actual, instead of treble,… Read more

Jun 5, 2020

The Failing Firm Defense and Miraculous Recoveries: The Federal Trade Commission’s Warning to Merging Parties and Counsel during COVID-19

The Federal Trade Commission has issued a number of statements regarding its intention to enforce United States antitrust laws during COVID-19. The head of the FTC’s Bureau of Competition, Ian Conner, echoed this commitment in his blog post on May 27, 2020. In the post, Conner stated that the FTC will continue to closely scrutinize failing firm claims by merging parties.[1] Consumers, he said, “deserve the protection of the antitrust laws now as much as ever.”[2] The failing firm defense usually involves the argument that the acquired and the acquiring firms are failing, “which presumably would justify the merger on… Read more

May 21, 2020

COVID-19 and Competition: Antitrust Law During the Global Pandemic

Overview COVID-19’s rapid spread has necessitated collaborations to equip communities with the proper tools to combat the disease. Many have risen to the occasion and worked tirelessly to help protect the health and safety of the United States. As the DOJ and FTC (the “Agencies”) put it in their March 24th Joint Antitrust Statement, however, “others may use [COVID-19] as an opportunity to subvert competition or prey on vulnerable Americans.”[1] The FTC, DOJ, and Trump Administration have taken measures to guide businesses on how to collaborate legally and have sent forceful reminders about the repercussions of violating antitrust laws during… Read more

May 20, 2020

How Should Co-Ops, Condos and Office Buildings Adjust To New York’s Social Distancing Guidelines?

On April 25, 2020, Governor Cuomo promulgated Executive Order 202.17, which requires any individual over the age of two (and able to medically tolerate a face-covering) to cover their nose and mouth with a mask or cloth face-covering when in a public place and unable to maintain social distance. For condominiums, cooperatives, and commercial office buildings, the concern is whether the lobby, laundry room, bathroom, and other common areas are considered “public places” where individuals are required to wear face-coverings. There is no official definition of “public space” within any of the executive orders, and therefore, the applicability of Executive… Read more