Lewis A. Kaplan

The case concerns Amusement Industry's lawsuit against multiple defendants, including Midland Avenue Associates, Stephen Stern, Mark Stern, and others, alleging that $13 million deposited into escrow for a potential real estate investment in eleven shopping centers was misappropriated without consent through unauthorized transfers to accounts controlled by the defendants. The plaintiff asserted claims including constructive fraudulent conveyance, aiding and abetting fraudulent conveyance, and aiding and abetting fraud. The district court overruled objections to the magistrate judge's report and recommendation on motions to dismiss the amended complaint. It granted the motions in part by dismissing counts for constructive fraudulent conveyance, aiding and abetting fraudulent conveyance with intent to defraud, and aiding and abetting fraud against Stephen Stern, as well as dismissing all claims against Joshua Shapiro and Joseph Neiderman and certain aiding and abetting claims against other defendants, while denying dismissal of the remaining claims. The core reasoning emphasized that well-pleaded factual allegations must be accepted as true on a motion to dismiss and that the complaint lacked sufficient allegations to support the dismissed claims against the specified parties.

business & regulatorytorts & liabilityproperty

This case arose after BH S & B Holdings LLC filed for bankruptcy, when the creditors' committee sued various investors, parent companies, and officers alleging they caused the company's failure through gross negligence or self-interested actions via claims of piercing the corporate veil, breach of fiduciary duty, and equitable recharacterization or subordination of a loan. The bankruptcy court dismissed nearly all claims with prejudice. On appeal by the Chapter 7 trustee, the district court affirmed the dismissal in full. The court agreed with the bankruptcy court's conclusion that the complaint did not adequately plead a breach of fiduciary duty by failing to overcome the business judgment rule or plausibly allege intentional disloyalty or bad faith, and it found no abuse of discretion in dismissing with prejudice.

business & regulatoryprocedure

This case involves Chevron seeking a declaration that a multibillion-dollar Ecuadorian judgment against it for alleged environmental damage is unenforceable in the US, along with related injunctive relief. The LAP Representatives moved for judgment on the pleadings, arguing that Chevron is judicially estopped from challenging the impartiality of Ecuadorian tribunals or their jurisdiction based on statements made by Texaco in the earlier Aguinda litigation. The court rejected the estoppel claims, finding that Chevron was never a party to Aguinda, the relevant statements concerned a merger that did not occur as described and were not adopted by the prior court, and statements by counsel acting for Texaco could not bind Chevron without a basis to disregard corporate separateness.

procedurebusiness & regulatory

This case arose from the 2008 collapse of Lehman Brothers and involves claims by pension funds, companies, and individual investors who purchased over $31 billion in Lehman debt and equity securities under a 2006 shelf registration and related offering materials. Plaintiffs sued former officers, directors, auditors (Ernst & Young), and underwriters under Sections 11, 12, and 15 of the Securities Act of 1933 and Sections 10(b), 20(a), and 20A of the Securities Exchange Act of 1934, alleging materially false or misleading statements and omissions concerning Lehman's Repo 105 transactions, net leverage ratios, risk management policies, liquidity, concentrations of credit risk, and accounting practices. The court addressed motions to dismiss by applying standards for pleading falsity, scienter, loss causation, timeliness, statutory standing, and affirmative defenses, examining whether the alleged misstatements violated GAAP or GAAS and whether facts supporting defenses appeared on the face of the pleadings.

business & regulatoryprocedure

The case involved a motion under 28 U.S.C. § 2255 by Michael Dede to vacate his conviction for conspiracy to distribute heroin, claiming ineffective assistance of trial and appellate counsel. The court denied the motion, finding all claims without merit. Counsel's decisions, such as not challenging certain testimony or stipulating to evidence, were reasonable tactical choices presumed sound under Strickland v. Washington. The alleged inconsistencies in witness testimony did not amount to perjury requiring correction, and no prejudice to the outcome was shown.

criminal lawprocedure

The case involved defendant Datta, who was charged in the Southern District of New York with two counts of conspiracy to commit money laundering based on alleged use of his business to launder drug proceeds and a related sting operation, with events spanning New York, Texas, and other states. Datta moved under Fed. R. Crim. P. 21(b) to transfer the case to the Southern District of Texas for convenience of parties and witnesses and in the interest of justice. The court denied the motion after weighing the Platt factors, finding that while some considerations such as the location of events and the defendant's business and family favored Texas, others—including the electronic availability of documents, the location of defense counsel in New York, the existing trial schedule in New York, relative expenses, and the general rule favoring retention in the original district—did not justify transfer.

criminal lawprocedure

This case involved individual investors who sued ThinkStrategy Capital Management LLC and its managing director after losing money when the fund invested in the fraudulent Valhalla and Victory Funds. The plaintiffs claimed common law fraud, negligent misrepresentation, and breach of fiduciary duty, alleging that the defendants had misrepresented the rigor of their due diligence and investment selection processes for subfunds. The court addressed the defendants' motion for summary judgment, applying New York law after determining it was substantially the same as the law of New Jersey and California. It found genuine issues of material fact regarding the scope and adequacy of the due diligence actually performed compared to the representations made, including failures to conduct background checks or require audits, and concluded that the defendants were not entitled to summary judgment on the claims.

business & regulatorytorts & liability

This case is a securities action brought by several U.S. hedge funds against Elixir Gaming Technologies, Inc. (EGT), its affiliate Elixir Group Limited, and certain officers and directors, alleging violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5, along with common-law claims, arising from purchases of EGT shares in 2006-2007. Plaintiffs asserted that defendants made false or misleading statements about EGT's entry into binding participation agreements to place thousands of electronic gaming machines in Asia, which allegedly inflated the stock price, and that plaintiffs suffered losses when the truth emerged. The matter came before the court on the remaining defendants' motions to dismiss for failure to state a claim. The court granted the motions in part and denied them in part, holding that some allegations adequately pleaded material misrepresentations and scienter while others failed to meet pleading standards or were precluded by the existence of express contracts.

business & regulatoryprocedure

This case is a putative class action brought by investors alleging that offering documents for IndyMac mortgage-backed securities contained misrepresentations and omissions in violation of Sections 11, 12(a)(2), and 15 of the Securities Act of 1933. After the lead plaintiff Wyoming was found to lack standing for most offerings and claims against certain defendants were dismissed, other investors moved to intervene to assert claims on behalf of purchasers in those offerings, and Wyoming sought to amend the complaint to add additional defendants. The court denied the motions to intervene and for leave to amend. It reasoned that the three-year statutes of repose applicable to the Securities Act claims had expired for most of the proposed claims, that American Pipe tolling does not apply to statutes of repose, and that relation back under Rule 15(c) is unavailable because the repose period admits no exceptions.

business & regulatoryprocedure

This case is a purported class action by plaintiff Cory Hubbard against MySpace alleging violation of the Stored Communications Act when the company disclosed his account records and contents to Georgia law enforcement in response to a state search warrant obtained during a criminal investigation. The court addressed MySpace's motion to dismiss, which invoked the Act's safe-harbor provision barring suits for disclosures made in accordance with a warrant. The court granted dismissal, holding that the Georgia magistrate's warrant satisfied the SCA's requirements for compelled disclosure of electronic communications and records, including that state warrants need not comply with federal territorial-jurisdiction limits to be valid under the statute.

criminal lawprocedure

The case concerns a Salvadoran citizen under a final removal order who sought a stay of removal and release on bail via habeas petition while his motion to reopen proceedings was pending before the BIA, citing mental disability and eligibility for a U Visa. The court held that it lacked jurisdiction to review the removal order or transfer the matter due to the REAL ID Act's exclusive channeling of such claims to the courts of appeals and the petition's untimeliness. Detention was deemed mandatory under INA Section 241(a)(2) during the removal period, and due process challenges did not override this statutory requirement or justify interim relief, consistent with precedents like Zadvydas v. Davis.

immigrationprocedurefederal power

The case involves Chevron Corporation's lawsuit against Ecuadorian plaintiffs (LAPs), their attorney Steven Donziger, and others, seeking a declaration that a multibillion-dollar Ecuadorian judgment for environmental pollution is unenforceable due to alleged fraud in its procurement, along with related injunctive relief. In this memorandum opinion, the court considers a motion by two appearing LAP representatives to disqualify the presiding judge, based solely on his prior rulings in related Section 1782 discovery proceedings and the preliminary injunction in this action. The court denies the recusal motion, holding that disqualification requires an extrajudicial source of bias and that all cited events were judicial actions within the proceedings, with no claim or evidence of personal bias. The background details Texaco's operations in Ecuador, prior U.S. litigation, the release by the Ecuadorian government, and the subsequent Lago Agrio suit leading to the judgment.

procedureenvironmentbusiness & regulatory

The case concerns an $18 billion Ecuadorian judgment against Chevron for alleged environmental harms caused by Texaco's operations, which Chevron acquired after the fact; Chevron sued the plaintiffs and their attorneys seeking, among other things, a declaration that the judgment is unenforceable outside Ecuador because it was obtained through fraud and in a judicial system lacking due process. The court had previously issued a preliminary injunction barring enforcement efforts abroad and was now addressing Chevron's motion to bifurcate and expedite trial solely on its declaratory judgment claim. The court determined that prompt resolution of the enforceability issue was warranted, reasoning that the plaintiffs intended multiple global enforcement actions to pressure Chevron into settlement, that many defendants had defaulted and might ignore the injunction, and that a final ruling would carry more weight in foreign courts than interlocutory relief while also addressing the risk of reversal on appeal of the preliminary injunction.

procedurebusiness & regulatory

This case involved Flame S.A. seeking recognition and enforcement in New York of a default money judgment obtained against Industrial Carriers, Inc. in the English High Court for breach of four maritime forward freight swap agreements, under the New York version of the Uniform Foreign Country Money-Judgments Recognition Act. ICI moved to dismiss the complaint for failure to state a claim, contending that it did not allege facts showing the English court provided due process or had personal jurisdiction over ICI. The court denied the motion, holding that the complaint sufficiently pleaded the judgment was final, conclusive, and enforceable in England, which allowed an inference of personal jurisdiction based on the common legal heritage of the systems and English rules requiring proof of service before entering a default judgment.

procedure

This case involves a putative class action alleging that offering documents for numerous mortgage pass-through certificates issued by Lehman Brothers affiliates between 2005 and 2007 contained material misrepresentations and omissions in violation of Sections 11 and 15 of the Securities Act. Original plaintiffs had standing to sue for only nine of the 94 offerings at issue, leading to dismissal of claims for the remaining offerings. Two public employee retirement systems moved to intervene as additional plaintiffs to assert claims for eight of those dismissed offerings. The court denied the motions, holding that the claims were barred by the three-year statute of repose under Section 13 of the Securities Act, which was not tolled by the filing of the original class action under American Pipe & Construction Co. v. Utah, as statutes of repose are substantive limits not subject to equitable tolling or Rule 23 class action suspension.

business & regulatoryprocedure

April Klein, a professor in NYU's Stern School of Business, sued the university under Title VII and the Equal Pay Act, alleging that her promotion to full professor was delayed due to gender discrimination, that she faced other gender-based discrimination, and that NYU retaliated against her for signing a 1998 memo complaining of gender bias at Stern. NYU moved for summary judgment. The court reviewed the facts of Klein's employment history since 1987, her promotion and tenure timeline, the careers and promotions of other female signers of the 1998 memo, the annual faculty merit review process based on research, teaching, and service, salary comparisons to male colleagues, and the legal standards for disparate treatment, retaliation, and equal pay claims.

labor & employmentcivil rights

This case concerns cross-claims for implied indemnification filed by Bankers Capital Realty Advisors LLC and Steven Alevy against third-party defendants Buchanan Ingersoll & Rooney, P.C. and attorney Stephen Friedman in a larger federal lawsuit over an $18 million loss in a real estate transaction known as the Colonial Transaction. Plaintiffs Amusement Industry, Inc. and Practical Finance Co., Inc. had sued multiple defendants including Joshua Safrin for claims such as fraud, negligent misrepresentation, and unjust enrichment, after which Safrin brought third-party claims against Bankers Capital and BIR alleging misrepresentations about his involvement. Bankers Capital then asserted cross-claims against BIR seeking indemnification for any liability arising from those claims. The magistrate judge recommended granting BIR's motion to dismiss the cross-claims, and with no objections filed, the district judge adopted the recommendation and dismissed count V of Bankers Capital's cross-claims.

procedurebusiness & regulatorytorts & liability

The case involves plaintiff Andrew Orkin seeking to recover a Vincent van Gogh drawing that his great-grandmother, a German Jew, allegedly sold under duress in 1933 to a private Swiss collector for a below-market price to fund her family's escape from Nazi persecution; the drawing later passed to the Swiss Confederation and related entities. The defendants moved to dismiss for lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA) and the Alien Tort Statute (ATS). The court granted the motion and dismissed the case, holding that the FSIA's takings exception did not apply because the initial transfer was to a private individual rather than a sovereign or its agent, and the ATS provided no alternative basis for jurisdiction over the claims against the foreign defendants.

propertyprocedurefederal power

The case concerns plaintiffs Amusement Industry, Inc. and Practical Finance Co., Inc., who sued defendants including Mark Stern, FRG entities, Ephraim Frenkel, and Land Title Associates for the loss of a $13 million investment in a real estate portfolio purchase, alleging fraud, negligent misrepresentation, conversion, conspiracy, breach of fiduciary duty, and unjust enrichment based on misrepresentations about equity partners, financing, and escrow arrangements. The district court adopted in full the magistrate judge's report and recommendation on the defendants' motion to dismiss the third amended complaint. The court dismissed several claims, including certain fraud allegations and those for negligent misrepresentation and breach of fiduciary duty, for failure to adequately plead reliance, causation, or the existence of a fiduciary relationship, while permitting the remaining fraud, conversion, conspiracy, and unjust enrichment claims to proceed.

business & regulatorypropertyproceduretorts & liability

This case stems from a real estate transaction in which plaintiffs Amusement Industry, Inc. and Practical Finance Co., Inc. allegedly lost $13 million after investing in the purchase of shopping centers, with claims of fraud and misrepresentation involving multiple defendants including Egert and Safrin. Egert asserted cross-claims against third-party defendants BIR (a law firm) and attorney Friedman for implied indemnification, fraud/forgery, conspiracy, breach of duty/negligence, and gross negligence, while Safrin brought similar third-party claims for fraud/forgery, conspiracy, breach of duty as agent/attorney, and negligence. The court granted in part the motions to dismiss, dismissing Egert’s third through sixth cross-claims and Safrin’s first, second, fourth, and fifth claims against BIR and Friedman, but denied the motions as to the remaining claims. The decision adopted the Magistrate Judge’s Report and Recommendation in full, as no objections had been filed, applying legal standards to evaluate the sufficiency of the pleaded claims under New York law.

business & regulatoryproceduretorts & liability