Fishkin Lucks secured complete dismissal of claims asserted against its client, a privately-held energy company, by its former Chief Executive Officer concerning post-termination obligations allegedly required by his employment agreement. The claims, brought in arbitration before a three-member panel of the American Arbitration Association, concerned the former executive’s contractual right to post-employment insurance coverage. Following extensive fact and expert discovery, both sides filed motions for summary disposition. After oral argument, the arbitration panel issued an order adopting the Firm’s arguments and finding that the Firm's client had satisfied its contractual obligations to the claimant.
The Firm prevailed on a motion to dismiss a complaint against its client, a leading wood stain manufacturer, based on plaintiff's misjoinder in one litigation of several unrelated claims. Specifically, the plaintiff had alleged that a wood stain manufactured by the Firm's client had caused four separate fires, in four separate homes across the Commonwealth of Pennsylvania, and sought to bring claims regarding all of those fires within a single lawsuit in the Philadelphia Court of Common Pleas. The Firm moved to dismiss on the basis that these claims presented few common questions of fact and law, and beyond that, combining them would be unduly prejudicial to the Firm’s client. The Court agreed and ordered that the case be dismissed
After extensive briefing and oral argument in a JAMS arbitration in California, the Firm secured a Final Award in favor of its client, a leading provider of solar services nationwide, dismissing with prejudice claims that the client had misrepresented and breached allegedly unconscionable terms of a solar lease agreement. The arbitrator found that the terms of the agreement were lawful and had not been breached, and that to the extent the claimant had misunderstood its rights under the agreement, “it was not based on any representations or omissions by [the client].”
The Firm won summary judgment in the United States District Court for the District of New Jersey on behalf of its client, a leading manufacturer of premium consumer and industrial paint and coatings products, dismissing claims that the label of one of its wood stain products failed to adequately warn about a purported spontaneous combustion risk.
Plaintiffs claimed that a fire allegedly caused by spontaneous combustion associated with the stain could have been avoided had the product label more prominently and conspicuously warned about spontaneous combustion. We denied that the fire was caused by spontaneous combustion and argued that, in any event, plaintiffs could not maintain their warning claims because the Federal Hazardous Substances Act (FHSA), which governed the wood stain, preempted claims inconsistent with it and did not require that products governed by it bear spontaneous combustion warnings—even assuming a spontaneous combustion risk existed. Thus, we pointed out, our client went above and beyond what it was legally obligated to do by including a spontaneous combustion warning at all.
The District Court adopted our arguments in full, holding that (1) for products, like the client’s wood stain, governed by the FHSA, “the law could not be clearer that a plaintiff cannot bring a failure-to-warn claim based on state-law theories that the label should have included additional warnings not required under the FHSA,” and (2) “no reasonable jury could find that the [wood stain] label violates the FHSA by failing to identify the risk of spontaneous combustion,” because spontaneous combustion is not required to be warned about under the FHSA.
The Firm scored a summary judgment victory on behalf of its client, a leading manufacturer of premium consumer and industrial paint and coating products, in the United States District Court for the District of Massachusetts, against claims that the client failed to adequately warn about an alleged spontaneous combustion risk associated with one of its wood stains.
Plaintiff, an insurance company, sought to recover money it paid to its insured in connection with a fire that plaintiff claimed was caused by the spontaneous combustion of rags used to apply the wood stain. Plaintiff claimed that the fire could have been avoided had better warnings been provided regarding how to avoid spontaneous combustion—even though the wood stain label bore a prominent and conspicuous warning to that effect.
We argued that, even if the fire was caused by spontaneous combustion—for which the evidence was scant—plaintiff’s warning claims failed because: (i) the wood stain is governed by the Federal Hazardous Substances Act(FHSA); (ii) the FHSA preempts failure-to-warn claims based on standards inconsistent with it; (iii) the FHSA does not require that products governed by it bear a spontaneous combustion warning—even if they present a spontaneous combustion risk; and thus, (iv) the wood stain did not need to bear a spontaneous combustion warning, and our client went above and beyond by including one on its label.
The District Court adopted our arguments wholesale, dismissing plaintiff’s claims that the wood stain should have included more or different warnings concerning how to avoid spontaneous combustion.
On the eve of trial in the United States District Court for the Southern District of New York, Fishkin Lucks obtained dismissal of a lawsuit against its clients, several affiliated insurance companies, by successfully convincing the district court that it lacked subject matter jurisdiction over the dispute. The plaintiff, an insurance agency, had originally asserted claims seeking millions of dollars in connection with our clients' alleged breach of the parties' agreement, which had required the insurance agency to perform certain administrative services in exchange for commission payments. After we successfully moved for partial dismissal of the plaintiff's claims for breach of the implied covenant of good faith and fair dealing, violation of New York's General Business Law § 349, and for a declaration under the Declaratory Judgment Act related to certain intellectual property generated during the parties' relationship, the case was set to proceed to trial.
Just days before trial, the plaintiff, which is an LLC, disclosed in a proposed joint pretrial order that its sole member was a trust. Yet eighteen months earlier, in response to an order to show cause entered by the court after the lawsuit had been filed ordering it to disclose its members, the plaintiff alleged that it had four individual members, all of whom lived in Florida. Because an LLC takes the citizenship of its members, and because subject matter jurisdiction was based on diversity of citizenship between the parties, the identity of the plaintiff’s members was critical in establishing whether the court had jurisdiction.
Based on the pre-trial disclosure of the trust as sole member, we argued that there was no longer true diversity between the parties because a traditional trust takes the citizenship of its trustees, and one of the two trustees shared a state of residence with our clients. Plaintiff opposed our arguments, claiming that the at-issue trustee had no true authority and that his citizenship should therefore be disregarded when assessing diversity jurisdiction. After extensive briefing and argument, including analysis of recent Second Circuit jurisprudence and the underlying trust documents, the court issued an order dismissing the action for lack of subject matter jurisdiction.
