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 […]
“I carefully read through the terms and conditions for a smartphone application before clicking I agree,” said no consumer ever. In a recent decision from the New York Court of Appeals, the state’s highest court made clear the consequences of “I agree,” holding that an online “clickwrap” process used to […]