In AriZona Beverages USA, LLC v. Evercore, Inc., (Sup. Ct., Nassau Cnty,. Aug. 27, 2024) (Index #608480/2024), the Court held that a merger and acquisitions intermediary (which was acting as a broker between a prospective seller and prospective buyers) breached a confidentiality clause that was in a contract between the seller...
Category: Contract interpretation
Promissory Notes and Personal Guaranties – “magic words” satisfy expedited collection under CPLR 3213
One of the benefits of being owed money under a promissory note (and, when applicable, a personal guaranty(ee)), in contrast to being owed money under an ordinary contract, is that the lender can qualify for an expedited procedure for collecting the debt under CPLR 3213. To qualify for CPLR 3213, the instrument...
When Can the Covenant of Good Faith and Fair Dealing Be Invoked? (ABA article)
https://businesslawtoday.org/2024/02/when-can-the-covenant-of-good-faith-and-fair-dealing-be-invoked
Contract is enforceable even if the price/fee to be paid is not specific . . . “sufficiently definite” satisfies the required legal standard
In Daiwa Corporate Advisory LLC v. Katapult Group, Inc. (NY County Supreme Court, Index No. 652164/2021), the trial court held that a contract is enforceable where the fees payable were to be “mutually-agreed” based on “customary and . . . similar transactions and practices in the investment banking industry.”
“Willful misconduct”– a commonly used term in contracts does not mean what you think it means
In Manhattan Chrystie St. Dev. Fund LLC v. Witkoff Group LLC (2023 NY Slip Op 50622(U), 2023 N.Y. Misc. LEXIS 3056), a New York trial court analyzed the meaning of the term "willful misconduct" in a commercial contract (specifically, a guaranty) governed by Delaware law.
The trial court generally...
$175M suit accuses BigLaw firm of ‘critical drafting errors’ and ‘sloppy and imprecise’ contract language (ABA re-print)
https://www.abajournal.com/news/article/175m-suit-accuses-biglaw-firm-of-critical-drafting-errors-and-sloppy-and-imprecise-contract-language
A Forum Selection Clause in Entity Resolutions? Not Necessary! Think again . . . A NY Court disagrees.
In Meltzer v. Kentucky Hi Tech Greenhouses LLC, 2023 N.Y. Misc. LEXIS 160, the Manager of a Kentucky LLC filed a lawsuit in New York against the LLC to recover unpaid wages purportedly owed to the Manager by the Kentucky LLC. The LLC moved to dismiss the lawsuit...
Summary judgment in lieu of complaint (per CPLR 3213) is not appropriate for a guaranty that requires payment and performance.
In Bank of America, N.A. v. Filho (N.Y. Sup. Ct. Index No. 654603/2019), the Court held that CPLR 3213 allows summary judgment in lieu of complaint only if the claim is based on instruments for the payment of money only. Thus, an instrument, such as a personal guarantee...
De Facto Merger: The Threat of Unexpected Successor Liability
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Broker Must be the “Procuring Cause” of the Sale to be entitled to Sale Commission.
In Capin & Assoc., Inc. v. Herskovitz, 2021 NY Slip Op. 03249, the Court held that a broker was not entitled to a sales commission because Defendant used another brokerage firm to make an offer, enter into negotiations, conduct due diligence, and close the transaction. Accordingly, the Plaintiff...