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.
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.
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.
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.
The Firm obtained a complete dismissal on behalf of its client, a national life insurance company, in the Supreme Court of New York, New York County (Bannon, J.). Plaintiff brought claims for breach of contract and fraud, alleging that the Firm’s client improperly terminated a rider on his life insurance policy. The Firm argued that any breach of contract claim based on the termination, which occurred eight years prior to plaintiff’s commencement of the action, was barred by New York’s six-year statute of limitations. As to the fraud claim, the Firm argued that it was simply the contract claim restated and improperly characterized so as to avoid dismissal on statute of limitations grounds. In any event, the Firm argued, a fraud claim could not be maintained for the separate an independent reasons that plaintiff did not plead justifiable reliance on any misrepresentation, nor did he plead fraud with the level of particularity required under New York law. On the strength of the Firm’s motion, the New York Supreme Court dismissed both of plaintiff’s claims.
The U.S. Court of Appeals for the Third Circuit today affirmed a judgment by the United States District Court for the District of New Jersey (Simandle, C.J.), which granted the Firm’s motion to dismiss plaintiffs’ lawsuit brought against our client, the state District Superintendent of the state-operated Camden City School District. Plaintiffs, four former principals and vice principals in the District, alleged that the District Superintendent fraudulently induced their retirement/resignation and deprived them of their due process right to continued tenured employment in violation of 42 U.S.C. § 1983. Following extensive briefing, the Third Circuit affirmed the District Court’s judgment because, as we argued, the District Superintendent is a State officer sued in his official capacity, and therefore entitled to Eleventh Amendment sovereign immunity. A copy of the Third Circuit’s decision can be found here.
