News

Fishkin Lucks Defeats Motion to Dismiss in New Jersey Real Estate Litigation

The Firm prevailed today in a commercial real estate litigation, in the Superior Court of New Jersey, Law Division, Hudson County, when it defeated defendant’s motion to dismiss an action the Firm brought on its client’s behalf to recover more than $15M in damages arising from defendant’s breaches of various representations and warranties in the parties’ contract of sale. After extensive briefing and a lengthy hearing before the Court in which the defendant argued that our client’s claims were barred by the “merger doctrine,” which typically extinguishes post-closing misrepresentation and breach of warranty claims, the Court agreed with the Firm’s arguments that there were questions of fact surrounding whether (i) the defendant seller fraudulently induced the Firm’s client to enter into the sale contract, (ii) the parties had modified the sale contract such that that representations and warranties “survived” closing, and (iii) a certain seldom-cited exception to the merger doctrine applied. On the basis of these findings, the Court denied the seller’s motion to dismiss in its entirety.

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Fishkin Lucks Successful in Non-Compete Action in the United Stated District Court for the Eastern District of Pennsylvania

The Firm prevailed upon a trio of companies to voluntarily dismiss their complaint against the Firm’s client, a former employee of one of the companies, alleging breach of a non-compete agreement. The plaintiff companies filed their complaint and concurrent application for injunctive relief in the Court of Common Pleas in Lehigh County, Pennsylvania. Plaintiffs did not allege an amount in controversy; however, the Firm sought, and was able to obtain removal to the District Court for the Eastern District of Pennsylvania on the basis that a damages calculation made pursuant to plaintiffs’ own damages theory yielded an amount in controversy in excess of the necessary threshold. After removing the action, the Firm then confronted plaintiffs with the basis for its client’s contemplated motion to dismiss: while the Firm’s client had a non-compete agreement with one of the three plaintiffs, he was only alleged to have competed with an entirely different plaintiff. Faced with this threatened motion, plaintiffs promptly filed a stipulation of voluntary dismissal

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Fishkin Lucks Obtains Voluntary Dismissal in Bay County, Florida Construction Litigation

Fishkin Lucks and local Florida counsel secured a voluntary dismissal today of product liability claims brought in the Circuit Court of Florida, Bay County, against our client, a leading provider of integrated exterior wall systems and products. Plaintiff, the homeowners association of the Shores of Panama Resort located in Panama Beach, had asserted claims against numerous construction professionals and contractors alleging that they negligently designed and constructed the resort; and against our client, which manufactured the stucco and finish coat applied to the resort’s exterior building envelope, alleging that the finish coat was defective, causing the stucco to blister and delaminate. Following discovery that stretched over 2 years, which included the production of tens of thousands of pages of construction documents, designs and drawings, 25+ depositions and a lengthy mediation at which all of the other defendants eventually settled, the Firm and local counsel moved for summary judgment. Upon receipt of the Motion, plaintiff voluntarily dismissed all claims against our client.

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Fishkin Lucks Prevails on Motion for Summary Judgment in Hawaii Circuit Court

Fishkin Lucks and local Hawaii counsel prevailed on a motion for summary judgment today in the Circuit Court of Hawaii, securing a complete dismissal of all claims against our client, a leading provider of integrated exterior wall systems and products.  Plaintiff, the homeowners association of the Waipouli Beach Resort located on the island of Kauai, had asserted claims against a number of construction professionals and contractors alleging that they negligently designed and constructed the resort; and against our client, which manufactured finish coat applied to soffits on the resort’s exterior building envelope, alleging that the finish coat was defective, causing the soffits to blister and delaminate.  Following extensive motion practice, an appeal to Hawaii’s Intermediate Court of Appeals and an application for writ of certiorari to the Hawaii Supreme Court, the Fifth Circuit Court dismissed all claims against our client on the basis of res judicata, agreeing with our argument that the client was in privity with a party to an earlier settled lawsuit that involved similar issues.

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Fishkin Lucks Prevails Against Order to Show Cause in the Superior Court of New Jersey

The Firm prevailed in the Superior Court of New Jersey (Passaic County) today when the Court, following briefing and a hearing, dissolved a temporary restraining order that had been entered (ex parte) against our client, a manufacturer of specialty building coatings, in favor of its former distributor, and denied the former distributor’s application to preliminarily enjoin our client from establishing alternate channels to distribute its products through other parties.  The former distributor argued that our client was compelled to renew its exclusive distribution agreement under the New Jersey Franchise Practices Act (FPA).  In ruling in our client’s favor against its former distributor, the Court agreed with each of our arguments as to why the former distributor was not a franchisee under the FPA and, hence, was unable to show a likelihood of success on the merits of its claims.

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Fishkin Lucks Prevails Against Order to Show Cause in Supreme Court of New York

The Firm prevailed today in the Supreme Court of New York (New York County) (Sherwood, J.) when the Court, following extensive briefing and hearings, dissolved an ex parte temporary restraining order that had been entered against our client, a real estate developer, by a co-managing member of the parties’ limited liability company, and denied the co-managing member’s application to preliminarily enjoin our client from exercising certain rights under the parties’ Operating Agreement to manage a development project.  In ruling in our client’s favor, the Court agreed with our arguments that the co-managing member lacked standing and was thus unable to show a likelihood of success on the merits of its claims.

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