The Firm prevailed today on a motion to dismiss one of the more unusual complaints it has seen. The plaintiff, appearing pro se, made a series of rather bizarre allegations against Governor Andrew Cuomo, several large financial institutions including Bank of America, Citigroup and JP Morgan Chase, and our client, Western Union Financial Services, Inc., including that one or more of them had spied on celebrities including Oprah Winfrey and George Clooney and plotted to kill plaintiff’s grandmother in the West Indies, to dissuade plaintiff from challenging Cuomo for the governorship. The Supreme Court of the State of New York (New York County) quite properly granted our motion to dismiss plaintiff’s fictional claims against Western Union. Given their unusual character, plaintiff’s claims had garnered mention in the local press media (see article here).
Fishkin Lucks and local Florida counsel secured today a directed verdict on behalf of Sto Corp. at a jury trial of a more than $9 million construction defect/strict liability (failure to warn) case brought by the owner of the Margaritaville Hotel on Pensacola Beach, Florida. The hotel owner brought the case in the Circuit Court of Escambia County, Florida, against its general contractor (who then impleaded a number of its subcontractors), alleging that it negligently constructed the hotel; and against Sto, which manufactured the finish coat installed as a component of the hotel’s exterior building envelope, alleging that the finish coat was defective because Sto failed to warn that it allegedly was prone to damage if large volumes of water traveled behind it. Following discovery that stretched over two years, which included the production of tens of thousands of pages of construction documents and drawings, more than twenty fact and expert witness depositions, and a lengthy mediation at which the general contractor and its subs eventually settled, Sto proceeded to trial with the hotel owner on January 19, 2016. Upon the close of the owner’s case, the Firm and local counsel moved for a directed verdict on the basis of Florida’s economic loss doctrine. The Court granted the motion several days later, directing a verdict in Sto’s favor, after extensive briefing by the parties.
New York’s Appellate Division, First Department affirmed today the dismissal of a complaint brought against the Firm’s client, alleging that the client made misrepresentations and breached fiduciary duties to plaintiffs in connection with the Madoff Ponzi scheme. The First Department agreed with and adopted the Firm’s arguments that plaintiffs’ complaint failed to state misrepresentation and breach of fiduciary duty claims against our client.
The United States District Court for the Western District of Tennessee, Eastern Division (Breen, C.J.), entered summary judgment today in favor of our client, GTP Structures I, LLC (“GTP”) on its breach of contract claim against Wisper II, LLC (“Wisper II”).
In July, 2012, Wisper LLC, a wireless internet service provider, entered master lease agreements (“MLAs”) and site license agreements (“SLAs”) to lease space for its equipment to provide internet access services, on cellular towers owned by NTCH-West Tennessee, Inc. (“NTCH”). GTP succeeded to NTCH’s rights, title and interest under the MLAs and SLAs through an asset purchase and assignment. After filing a voluntary petition under Chapter 11 of the Bankruptcy Law, pursuant to a Plan of Reorganization (“Plan”) confirmed by the Bankruptcy Court and a consent order for the assumption and assignment of unexpired leases, Wisper LLC merged into Wisper II with Wisper II, the surviving entity, taking an assignment of and assuming all obligations under the MLAs and SLAs.
While the MLAs and SLAs had three years remaining on their initial terms, in July, 2014, Wisper II ceased making lease payments to GTP. When Wisper II refused GTP’s demands that it cure its ongoing default, the Firm brought suit on GTP’s behalf to recover all lease payments owed for the remainder of the MLAs and SLAs’ unexpired initial terms, along with past lease balances due plus interest at 1.5 percent per month as provided under the MLAs, which were governed by Florida law.
Following the close of discovery during which the Firm elicited several critical admissions from Wisper II, the Firm moved for summary judgment on GTP’s behalf arguing that there was no issue of fact that (i) Wisper II defaulted under the MLAs and SLAs, leaving unpaid nearly $2 million in rent over the remaining three years of the initial term, which rent was immediately due and owing to GTP and that (ii) GTP provided Wisper II with actual and proper notice of that default pursuant to the terms of the MLAs and SLAs. Wisper II opposed the motion and cross-moved for summary judgment, arguing that: (i) GTP failed to comply with notice provisions in the MLAs that constituted condition precedents to GTP’s right to file the action; (ii) there were disputed issues of fact as to whether GTP properly mitigated its alleged damages; and (iii) Wisper II’s liability was capped at $300k under the Plan.
Following extensive briefing on the competing motions, the Court agreed with the Firm’s multiple arguments and awarded GTP summary judgment on its breach of contract claim. The Court agreed with the Firm that, under Florida law, the action was properly brought after GTP at least substantially complied with the MLAs’ notice provisions and, even had that not been the case, Wisper II did not demonstrate it was prejudiced by any deviation therefrom. The Court also agreed with the Firm that Wisper II’s argument to cap its damages at $300k was undermined by a Bankruptcy Court order that stated Wisper II already owed in excess of that amount in cure costs through an earlier date and bankruptcy law that holds it is “well establish[ed] that executory contracts [like the MLAs and SLAs] assumed in bankruptcy must be taken in their entirety.” The Court also agreed with the Firm’s arguments that GTP was “not required to mitigate its damages upon [Wisper II’s] breach” since the MLAs and SLAs were “non-exclusive” contracts, but that GTP nevertheless properly attempted to mitigate through “reasonable, ameliorative efforts to replace Wisper II as a tenant.”
Upon awarding GTP summary judgment, the Court directed the parties to submit additional briefing on the issue of GTP’s damages.
A copy of the Court’s decision granting the Firm’s motion can be found here.
Following oral argument today, the Superior Court of New Jersey (Burlington County) (Baldwin, J.) granted the Firm’s motion to dismiss an action alleging the Firm’s client, The Variable Annuity Life Insurance Company (“VALIC”), breached its annuity contract with plaintiff, was negligent, and breached its fiduciary duties in connection with alleged unauthorized withdrawals from plaintiff’s annuity account. In dismissing the action, the Court adopted each of the Firm’s arguments, including that plaintiff’s contract claims were time-barred, her negligence claim failed as duplicative of her breach of contract claim, and VALIC, as the issuer of an annuity, did not owe a fiduciary duty to plaintiff.
Fishkin Lucks won summary judgment today in the Supreme Court of New York (Kings County) (Dear, J.) on behalf of its client, The Variable Annuity Life Insurance Company (“VALIC”), against claims that VALIC breached its annuity contract with plaintiff in allegedly failing to make contributions to plaintiff’s 403(b) retirement plan. The victory allowed VALIC to avoid a lengthy trial.
