Fishkin Lucks is pleased to announce that Erin O’Leary and Aaron Loterstein have been elevated to Partner.
Erin, a commercial litigator, joined the Firm as a senior associate in 2018 and was elevated to counsel in 2021. Before joining the Firm, Erin was a senior associate at a top national firm. Erin earned her J.D., with honors, from the University of Connecticut School of Law, where she was a published member of the Connecticut Insurance Law Journal and a decorated member of the Moot Court Board, and her B.A. from the University of Richmond, magna cum laude. Erin is admitted to practice in New York, New Jersey, Connecticut, and Massachusetts state and federal courts.
Aaron, also a commercial litigator, joined the Firm as an associate in 2017, after spending several years as an associate at Davis Polk. Aaron earned his J.D. from the University of Michigan Law School, magna cum laude, where he served as an Articles Editor for the Michigan Law Review and was a member of the Order of the Coif, and he received his B.A. from Yeshiva University, summa cum laude. Aaron is admitted to practice in the New York state and federal courts.
Erin and Aaron are extraordinarily talented lawyers and fierce advocates for our clients. Their well-deserved elevation reflects the Firm’s ongoing commitment to organic growth by promoting from within.
The Firm won summary judgment in the United States District Court for the Central District of California, which dismissed all claims brought against our client, a leading manufacturer of protective paints and coatings. Plaintiff’s claims arose out a serious fire that plaintiff had argued was caused by the spontaneous combustion of rags containing our client’s floor stain product. Plaintiff argued that our client’s product was “misbranded” under the Federal Hazardous Substances Act (FHSA) for failing to adequately warn about alleged dangers relating to spontaneous combustion.
Following extensive discovery, the Firm moved for summary judgment, primarily arguing that, although our client’s product bore a clear spontaneous combustion warning, it was not required to because spontaneous combustion is not a “principal hazard” as defined by the FHSA, and the FHSA requires that labels warn only about principal hazards.
The District Court (Hon. Stephen Wilson) issued an interim ruling (i) agreeing with the Firm’s argument that spontaneous combustion is nota “principal hazard” as defined in the FHSA, but (ii) finding that the avoidance of spontaneous combustion nevertheless is a “precautionary measure” that was required to have been addressed on the product label pursuant to a different provision within the FHSA. Thus, the court ordered the parties to file supplemental briefing solely on the discrete issue of whether the spontaneous combustion warning was appropriately “prominent” and “conspicuous,” as is required for “precautionary measures” under the FHSA.
In its supplemental briefing, in addition to addressing the discrete issue identified by the court, the Firm argued (again) that the spontaneous combustion warning was not required in the first place. The Firm cited authority supporting the proposition that “precautionary measures” were required under the FHSA only with respect to avoiding “principal hazards,” which the court had already ruled spontaneous combustion was not.
The court ultimately agreed with the Firm’s arguments and awarded our client summary judgment. Reversing in part its earlier ruling, the court agreed that, although the relevant product had a spontaneous combustion warning, that warning was not required, for the reasons the Firm had argued. The court further held that even assuming a spontaneous combustion warning were required, our client’s product would not be “misbranded” under the FHSA, because its spontaneous combustion warning met or exceeded the FHSA’s prominence and conspicuousness requirements.
Fishkin Lucks prevailed on a motion to dismiss a putative class action brought against its client, Western Union, in the United States District Court for the District of New Jersey. The named plaintiff, who resides in France, filed the action in the Superior Court of New Jersey (Morris County), asserting claims on his own behalf and on behalf of a global class of all consumers who sent money transfers from Western Union locations outside the United States to the United States, or paid for money transfers with funds debited from a United States bank account. The plaintiff asserted common law misrepresentation and omission claims and a statutory cause of action brought under the New Jersey Consumer Fraud Act, challenging the sufficiency of Western Union’s disclosures concerning the foreign exchange rate that it applied to money transfers. The Firm removed the action pursuant to the Class Action Fairness Act and then moved to dismiss, arguing that for several reasons, the plaintiff had failed to state a viable claim.
In response to the Firm’s motion, plaintiff amended his complaint to narrow the putative class to Western Union customers who sent money transfers from France to the United States, or to other countries when using funds debited from a United States bank account. The Firm moved to dismiss the amended complaint on two independent grounds. First, we argued that given the inherently France-centric nature of the plaintiff’s claims, his lawsuit belongs, if anywhere, in France, and it should therefore be dismissed under the doctrine of forum non conveniens. Second, we demonstrated that as in the complaint, the claims in the amended complaint failed as a matter of law (under both New Jersey and French law), because the plaintiff had failed to identify any actionable misrepresentation or omission, or violation of the New Jersey Consumer Fraud Act.
In a detailed opinion, the Court (McNulty, J.) granted our motion to dismiss on the basis of forum non conveniens, agreeing that given the French-focused nature of plaintiff’s allegations, the claims belong, if anywhere, in France. Moreover, the Court noted that while it did not need to reach our arguments that the plaintiff had failed to state a claim, it is “far from obvious” that his claims would have survived a motion to dismiss.
The Firm successfully opposed certification in the United States District Court for the District of New Jersey of two nationwide classes of thousands of owners of universal life insurance policies administered by one of the Firm’s life insurance clients. The named plaintiffs had filed suit on behalf of themselves and two putative classes, alleging that annual reports and illustrations the client issued to universal life insurance policyholders did not properly account for limitations on premium payments imposed by federal tax law. The Firm opposed certification, after extensive discovery, arguing that both classes failed to meet the requirements for class certification for several reasons, most notably because of individualized issues that precluded class-wide adjudication of plaintiffs’ claims. Plaintiffs responded by modifying their class definitions, and the Firm again opposed certification, arguing that plaintiffs’ re-defined classes failed certification for many of the same reasons as their previously defined classes. In a detailed 54-page decision, the court (Hon. Noel Hillman) adopted many of the Firm’s arguments to deny certification of both classes. First, it concluded that for several reasons, the Bucks were not “typical” representatives of their putative classes, as their claims would be subject to unique defenses. Second, the court agreed that individualized inquiries would predominate as there is no way of proving on a class-wide basis whether individual class members suffered damage. And third, the court agreed that determining membership in the damages class presented insurmountable “ascertainability” issues in that it would require (i) painstaking review of thousands of different contracts to understand their requirements and whether any had been breached in the manner plaintiffs claim, and (ii) determination of which policyholders “followed” the planned premiums and other features in their annual reports and illustrations in a way that would bring them within the class definition.
The Superior Court of Massachusetts (Norfolk County) granted the Firm’s motion to dismiss plaintiff’s claims against our client, a leading manufacturer of specialty chemical products for the concrete and masonry construction industry. Plaintiff’s claims concerned the construction of an three-rink ice-skating training facility and performance center for The Skating Club of Boston. The skating rinks were designed to be constructed on large concrete slabs, which were prepared using an admixture manufactured by the Firm’s client. After the slabs were poured, irregularities appeared on the surface of one of the slabs, which the general contractor attributed, in part, to defects in the admixture. The general contractor brought suit seeking damages of more than $700,000, asserting claims for negligence and violation of Massachusetts General Law Chapter 93A.
The Firm moved to dismiss the contractor’s claims, primarily arguing that they are barred by the economic loss doctrine, which prohibits recovery in tort absent personal injury or injury to property other than to the allegedly defective product. We argued that because our client’s product had been incorporated as a component part of a finished product (the slabs and the skating rink), the economic loss doctrine barred the claims. Opposing our motion, plaintiff claimed that the concrete slabs were “other property” to which the economic loss doctrine did not apply. The court adopted our arguments and dismissed with prejudice both claims against our client.
The Firm prevailed on a motion for reconsideration on behalf of its client, a life insurance company, in the Superior Court of New Jersey, Chancery Division (Hudson County), resulting in its client obtaining a full dismissal of claims asserted against it by two plaintiffs. Those two plaintiffs had brought claims for negligence, breach of fiduciary duty, and breach of contract in connection with the client’s handling of several life insurance policies. After the Chancery Court denied the Firm’s motion to dismiss, the Firm argued that the court should reconsider its ruling. First, the Firm argued that plaintiffs’ tort claims failed because they merely alleged that the Firm’s client improperly performed its contractual obligations under the policies. The fiduciary duty claim, the Firm argued, was doubly deficient because plaintiffs had not alleged—nor did there exist—the requisite “special relationship” between the plaintiffs and the insurance company. Finally, the Firm argued that plaintiffs’ contract claim was barred by the applicable statute of limitations, which could not be tolled on account of the discovery rule. As the Firm pointed out, plaintiffs were suing on behalf of a party to the at-issue contracts (i.e., the policies), and under New Jersey law, contracting parties are not afforded the benefit of the discovery rule on breach of contract claims because they are presumed to know when a breach occurs. On reconsideration, the Chancery Court adopted the Firm’s arguments in their entirety, granted the Firm’s reconsideration motion, and dismissed the plaintiffs’ claims.