In a prior blog post on The Westchester Litigator entitled “Intent to be Bound: The Validity of Settlements Negotiated Over Email,” we discussed the enforceability of settlement agreements achieved via exchange of emails. We cautioned litigators that when all material terms are agreed upon, the New York courts will enforce […]
For more than 50 years, the Second Circuit’s test for determining whether a party had waived the right to arbitrate was the prevailing approach across the country. That test, which was based on the strong public policy favoring arbitration, focused on whether there was prejudice to the party opposing arbitration. […]
Complaints filed in commercial litigations often take a kitchen-sink approach to pleading, asserting every conceivable liability theory – in tort and contract – to ensure that all bases are covered and maximum pressure is imposed on the other side. New York state courts, however, have made clear that this practice […]
In 2017, the U.S. Supreme Court issued its decision in Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (2017), which reshaped how courts evaluate personal jurisdiction—particularly in multi-state litigation. The case involved a group of out-of-state plaintiffs who joined a mass tort action in California state […]
In a recent decision, the Appellate Division, Second Department, reaffirmed the New York rule that a plaintiff opposing a motion for summary judgment cannot raise a new theory of liability not already alleged in her complaint in the opposition brief. This principle came as an unpleasant surprise in 2016 to […]