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.
Fishkin Lucks prevailed on appeal before the New York Appellate Division, First Department, on behalf of its client, a life insurance company. The appellate victory affirmed a trial court order denying a motion to dismiss the Firm’s clients claims against two New York attorneys for violation of section 487 of New York’s Judiciary Law (concerning deceit in the practice of law), based on allegations that the defendant attorneys had paid a bribe to secure false testimony from a critical fact witness in a previous litigation. The defendant attorneys argued to the trial court that a release within the agreement settling the underlying action barred the claim. The Firm successfully opposed that argument, persuading the trial court that the release did not expressly cover unknown and future claims and that only covered claims relating to the substance of underlying action, and not the way that action was litigated. Following oral argument, the Appellate Division affirmed the trial court’s decision in full.
The Firm obtained a complete dismissal on behalf of its client, a multinational energy corporation, in two quiet title actions brought in the Superior Court of New Jersey, Hudson County. The plaintiffs in those actions argued that the Firm’s client potentially had an interest in certain properties and pipelines in which plaintiffs were seeking to quiet title. Plaintiffs sought a judgment not only declaring their right to quiet and peaceful possession of the properties and pipelines, without encumbrance, but that their claims did not preclude them from later bringing unspecified environmental claims relating to the properties and pipelines. In granting the Firm’s motions to dismiss the actions, the Court adopted in full the Firm’s arguments. First, it held that the quiet title actions were moot even where the Firm’s client had previously equivocated on whether it had an interest in the subject properties and pipelines because the client ultimately disclaimed any such interest. Second, the Court rejected plaintiffs’ attempt to obtain a judgment recognizing the viability of hypothetical future environmental claims because they amounted to impermissible requests for advisory opinions.