Litigation

Faruqi & Faruqi, LLP, a national securities law firm based in Garden City, has begun an investigation into the sale of Caliper Life Sciences, Inc. to PerkinElmer, Inc. The latter announced this past Thursday that it sought to acquire all of Caliper’s outstanding common stock for $10.50 per share. An agreement to do so was signed that day, evidencing a purchase of the company for approximately $600 million in cash.

PerkinElmer boasted that the deal represented a 42% premium for Caliper shareholders. The following day, Caliper’s shares leapt from $7.39 to $10.43 per share. Yet even in late July, Caliper’s stocks had seen a closing price of $8.53 each, cutting the so-called “premium” down to approximately 18%.  Thus, the issue at hand is whether or not PerkinElmer is underpaying for its acquisition of Caliper shares resulting in an unlawful financial harm to Caliper shareholders. An investigation has therefore ensued to discern whether PerkinElmer’s offer and purchase of Caliper would be unjust to its investors. Primarily, did Caliper’s Board of Directors and officers breach their fiduciary duties owed to the company’s shareholders?

Boards of Directors have a legal obligation to shareholders of the business not to act solely for their own benefit and to the detriment of the company and its stockholders. Failure to give proper consideration to a business decision such as the buyout of Caliper, may be considered a breach of a fiduciary duty and thus entitle defendant-shareholders to a cause of action for damages. The key focus of this case will be to what extent the company was undervalued and the scope of the loss incurred by Caliper’s shareholders.

Loadholt v. Herbs, 2023 U.S. Dist. LEXIS 59116 (SDNY 2023) is an ADA website case that sheds light on the issues of personal jurisdiction and forum non conveniens. In this case, the defendant, who does most of its business from a brick-and-mortar store in Colorado, argued that it had almost no contacts with New York, and therefore, lacked personal jurisdiction in the state. However, the court disagreed and held that selling items to New York-based customers through a website constitutes purposeful availment, and thus, confers personal jurisdiction.

The defendant also argued for a transfer based on forum non conveniens, but the court denied it, citing that the plaintiff's choice of forum is generally entitled to great deference when the plaintiff has sued in their home forum. Additionally, the court found that the nearly identical facts to the ADA website case Paguda v. Washington Music Sales Ctr., Inc. (2022 U.S. Dist. LEXIS 16064 (SDNY)), where a venue transfer was denied, supported its ruling.

Overall, this case is significant for people with disabilities because it reinforces the importance of ADA compliance for businesses, even if they do not have a physical presence in the state where the lawsuit is brought.

The Loadholt v. Herbs, 2023 case highlights the importance of ADA compliance for businesses, especially in the context of websites that allow for the purchase and exchange of goods. The court's ruling on personal jurisdiction and forum non conveniens reinforces the need for businesses to ensure that their websites are accessible to people with disabilities, even if they do not have a physical presence in the state where the lawsuit is brought. This case serves as a reminder that businesses must take the necessary steps to ensure that their online services are accessible to all, in order to avoid potential legal liabilities.

Brooklyn Supreme Court Judge Bert Bunyan ruled in favor of the City Department of Transportation yesterday and thus allowing a newly created bike lane on Prospect Park West to remain. Judge Bunyan noted the case as untimely; the Brooklyn residents having brought the complaint after the statute of limitations had already expired. The bike lane, stretching a mile long and two paths wide for dual direction riding, the plaintiffs claim, is a hazard to cars and dangerous for pedestrians. They accused the city of misleading the community about the benefits of the bike path, whilst the city argued that the creation of the bicycle lanes was proper and desired, claiming it sought out the opinions of residents in the area when implementing the path.   

Plaintiffs attempted to circumvent the SOL limitation by claiming that the implementation of the bile lane was a sort of “pilot” project and would be made permanent once statistics could be gathered about its effect on pedestrian safety and traffic on the street. Thus, under this view, plaintiff’s lawsuit would have been timely filed. The city however, claimed that the bike lane was intended to be a permanent addition to the road since its inception. Luckily for them, Judge Bunyan agreed, noting Plaintiffs lacked the requisite proof to support their allegations on the matter.

The city stands by their decision, remarking that bike paths on busy streets such as Prospect Park West has led to a reduction in speeding and a safer, calmer community. However, for the millions of car owners in New York, this is just yet another road to be taken over by cumbersome bikers and one more cause for delay during their commute.

Proposition 8 , the voter-approved referendum banning gay marriage in California, was recently ruled to be unconstitutional by the  Ninth Circuit Court of Appeals . Proposition 8 was passed in California in 2008 with 52% of the vote.

In 2010, Federal District Judge Vaughn R. Walker ruled that preventing same-sex couples from marrying violates both the Due Process and Equal Protections clauses of the US Constitution. While the Ninth Circuit upheld Judge Walker’s decision, it framed the legal question more narrowly, focusing not on the right for same-sex couples to marry, but on the treatment of domestic partnerships. The Ninth Circuit ruled that the disparate treatment of domestic partners in California, when compared with married couples, violates the Equal Protections clause. 

Writing for the majority, Judge Stephen R. Reinhart wrote, “All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation ‘marriage’…. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California.”

 However, a stay imposed by Judge Walker preventing same-sex couples remains in effect for two weeks following the ruling, preventing same-sex marriages from taking place immediately in California. The final question regarding whether same-sex couples have a Constitutional right to marry in California is not likely to be answered until the Supreme Court rules on an appeal from the Ninth Circuit’s ruling, or declines to entertain an appeal, which would be viewed by many as a tacit endorsement of this decision.

The  New York State Bar Association ,  Committee on Professional Ethics in Opinion 843  ruled that an “attorney may ethically view and access the  Facebook  and  MySpace  profiles of a party other than the lawyer’s client in  litigation  as long as the party’s profile is available to all members in the network.”   On the other hand, the Committee  ruled that a lawyer is prohibited by the  Professional Rules of Conduct  from requesting the adverse party to be its  “friend” or directing an unrelated third-party to do so on its behalf (this would violate Rule 8.4 which prohibits deceptive or misleading conduct).  The Committee reasoned that an attorney which “friends” a  represented  party in a pending litigation runs afoul of Rule 4.2 (the “no-contact rule”) which strictly prohibits attorneys from communicating with a represented party, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.  A lawyer that attempts to “friend” an  unrepresented  party is in violation of Rule 4.3, which prohibits an attorney from giving legal advice to a  pro-se  litigant (an unrepresented party) for purposes other than advice that it secure legal counsel.  Therefore, if you are in a pending litigation and your Facebook or MySpace page is public, an opposing attorney can access your social networking page to obtain information to be used against you in a pending lawsuit.    If you are being sued or believe that you may have a viable legal claim against another, please call  Erik M. Bashian , an experienced New York trial attorney to discuss.

Judge P. Kevin Castel highlighted the dangers for attorneys using the artificial intelligence tool ChapGPT where in they included citations of non-existent court cases and required these New York attorneys to pay a $5,000 fine for use of the non-existent cases.  The decision highlights the importance in work that attorneys perform in drafting briefs by performing actual research and not relying on the artificial intelligence tool ChapGPT.

See decision here: https://storage.courtlistener.com/recap/gov.uscourts.nysd.575368/gov.uscourts.nysd.575368.55.0_3.pdf 

That is why at Bashian & Papantoniou we take great pride to ensure that we properly guide our clients through this entire process.

From the commencement of a lawsuit through settlement or even trial – our team of New York trial attorneys are available around the clock to answer any question that you may have and to provide strategies on how you can be successful in your litigation.

The first thing we do at our initial meeting with a new client is to discuss the claims and damages at issue and statutory deadlines that you may be facing.  The challenges for a plaintiff may include a statute of limitations deadline or for a defendant a potential default for failure to answer a pleading or motion. The next step will be a discussion about whether your dispute is something that can be resolved without the need to engage in a long and costly litigation.  We will discuss with you the anticipated costs of litigating the claims and conduct a cost effective analysis to determine whether it would be more beneficial to actively settle.

If settlement is your choice, we will reach out to our adversaries and attempt to negotiate a settlement that best meets your standards and goals.  If not, we will immediately develop a strategy and plan for taking advantage of all legal remedies available.

Whether you are a plaintiff or defendant engaged in litigation it is important that you have the proper guidance to ensure that deadlines are not missed and that the appropriate course of action is taken. Through our years of litigation and trial experience, the New York trial lawyers of Bashian & Papantoniou will assist you in each and every step of the litigation process so that you know what is expected and there are no surprises.

If you have any questions concerning a lawsuit and are not yet represented by legal counsel please feel free to contact the attorneys of Bashian & Papantoniou.

A class action lawsuit filed this past Wednesday against  Thomas M. Cooley Law School  and  New York Law School  by several of its former students asserts claims that both schools are guilty of overstating and amplifying their post-graduate employment and salary statistics. These students are alleging that their respective schools are misclassifying graduated, employed students. It would appear that a graduate from either school, unable to obtain legal hire and hit with often over a hundred thousand dollars in school debt, employed as a part-time cocktail waitress would be represented by their school  as “fully employed.”

Cooley has commenced two separate lawsuits, one against Plaintiffs’ counsel, Garden City-based Kurzon Strauss, LLP, and the other against a number of anonymous bloggers. Both lawsuits hinge on the premise that the school is being defamed on public web forums from postings about the school’s employment reporting methods.

Cooley seems to be pointing a little finger at the American Bar Association, noting that its job placement rating methods and employment statistics are in harmony with the other 200 or so ABA accredited law schools in the US.  The Wall Street Journal  reported that Cooley’s General Counsel Jim Thelen made statements alluding to the fact that Kurzon Strauss is looking for his justice in the wrong places and should take up their issue with the ABA or the Department of Education because law schools are doing nothing wrong.

These angry grads are hoping for their class action to land them a little under half a million dollars, seeking 200 million from NYLS and 250 million from Cooley. If they can’t find work, they might as well get that tuition money back, some extra in damages and a restructuring of post-graduate employment reporting to both alert and save the fresh new group of doe-eyed incoming students.

Judge Beryl A. Howell bought LaMith Designs, Inc., a clothing company accused of trademark infringement by  Delta Sigma Theta Sorority  a little more time to defend itself. Plaintiff Delta is a well-recognized sorority founded on January 13, 1913 at Howard University in Washington D.C. currently boasting over 900 chapters all over the world. The sorority plaintiff claims that it is known by its name, its Greek letter symbols ΔΣΘ and its crest. All three are registered with the U.S. Patent and Trademarks Office in efforts to protect its intellectual property rights.

The  ruling  handed down this past month vacated a default judgment issued in favor of Delta, which subsequently moved for an entry of that judgment, seeking their award of $620,656 in damages and attorney fees as a result of LaMith’s lawyer failing to appear at the scheduled hearing. Judge Howell reasoned that LaMith had engaged in settlement discussions with Delta, they did not willfully default, Delta would not be prejudiced from the vacatur and a finding that Washington D.C. may not have jurisdiction over the New York based company. Thus, he gifted them with sixty more days, taking Delta to a deadline of mid-August to conduct pre-trial discovery regarding LaMith’s ties to the District of Columbia.  

Delta proclaimed that there is a lengthy application process for prospective vendors who seek licensing agreements to sell its memorabilia. The sorority shed light on the notoriety of their brand and the “hundreds of requests” they receive each year from vendors. Delta notes that vendors must agree to a number of Delta’s specific licensing requirements, one being that sales are limited solely to Delta members and only at Delta-approved events. LaMith it says, fell far from this restriction. The company was allegedly selling clothing and merchandise without any license or authorization and to non-Delta members through its catalog and online website which has since been shut down. Delta argued that despite being put on notice of their infringement, LaMith continued to sell Delta marked merchandise. Come August, by way of settlement or litigation, LaMith will be forced to face the music. Does Delta Sigma Theta have an anthem?

As a predicate for filing an employment lawsuit under the Americans with Disabilities Act ("ADA"), a plaintiff must first file a timely charge with the US Equal Employment Opportunity Commission ("EEOC"). To file a charge, a plaintiff can do so by hiring an attorney or going on the EEOC's website. A charge of discrimination is a signed statement that provides an organization engaged in some form of employment discrimination. The purpose is to require remedial action. A plaintiff seeking to obtain a right to sue letter must be cognizant of when the discrimination took place. This is because a plaintiff has a 180 calendar days to file a charge. In some circumstances this filing deadline can be extended to 300 calendar days if a state or local agency enforces a local law that prohibits discrimination on the same basis. Exhaustion of administrative remedies through the EEOC is 'an essential element' of the . . . statutory scheme[] and, as such, a precondition to bringing such claims in federal court. The purpose of this exhaustion requirement is to give the administrative agency the opportunity to investigate, mediate, and take remedial action." If you need assistance with filing an EEOC charge then contact our staff of attorneys, as we will be happy to assist you with your needs.

The New York State Senate recently strengthened the existing anti-retaliation law under the New York State Human Rights Law (NYSHRL). The law has been amended to explicitly prohibit employers from leaking or releasing an employee’s personnel file as retaliation against certain forms of an employee’s protected conduct. This protected conduct includes an employee opposing discriminatory practices, filing complaints, and testifying or otherwise assisting in a proceeding involving the workplace.

Employers may often leak personnel files, or certain harmful or embarrassing documents, with the intent to discredit or minimize a victim or witness’ testimony. The threat of such a leak can also discourage many victims and witnesses from coming forward, and have a chilling effect on the truth coming out. This law seeks to prevent such retaliatory conduct.

In 1959,  Art Wall Jr.  obtained his most notable career victory by winning the Masters Tournament and being awarded his first and only green jacket. A few years later, the Wall family claims the treasured green jacket that Wall wore as an Augusta champion disappeared from his family’s’ home and was not discovered until two weeks ago when it was put up for auction on a the golf memorabilia website www.greenjacketauctions.com.

This week,  Erik Bashian , an attorney and head of the Litigation Department for Bashian & Papantoniou, discussed Walls’ rights to the jacket in an article with  The Star-Ledger .

Bashian, likened the facts of Wall’s lost jacket to those in the 1991 New York Court of Appeals case Solomon R. Guggenheim Foundation v. Lubell, where the court ruled that because many other difficulties exist for a rightful owner in locating and recovering artwork that may have been lost or stolen, such owner should not also have to bear the additional burden in demonstrating due diligence in tracking down the lost art. He added that, “with a potential good-faith purchaser lined up to make a substantial purchase, there should be absolute certainty on their part as to how the jacket was acquired initially.”

Under New York law, an action to recover damages for the unlawful taking of one’s property, such as sports memorabilia, must be commenced within three years, from the time the theft occurs.

However, a rightful owner’s replevin action for the return of such property against who may be an innocent purchaser does not accrue until the rightful owner demands the return of the stolen property from the possessor and such possessor refuses to return it. As a matter of substantive law, the good-faith purchaser has not done any wrong until he/she refuses a demand for the return. Although, in New York, an owner’s failure to exercise due diligence in locating a lost chattel has not been held to be a factor in determining the accrual of the statute of limitations, it may be relevant with respect to a trial court adjudicating the good faith purchaser’s equitable defense of laches. If you have a legal issue concerning sports memorabilia and would like to speak with one of the sports memorabilia attorneys at Bashian & Papantoniou, please contact us at (516) 279-1555 to schedule a consultation.

At Bashian & Papantoniou, our sports memorabilia attorneys in Long Island and New York provide invaluable advice and guidance to buyers, sellers and auctioneers on various legal issues that may arise in connection with a sports memorabilia transaction.

Read the Full Article  Here

Baltazar v. Goldfarb Props., 2023 U.S. Dist. LEXIS 30238 (SDNY 2023) is a recent case that sheds light on how the Fair Housing Act (FHA) and Americans with Disabilities Act (ADA) relate to housing accommodations for individuals with disabilities. The pro se plaintiff in this case alleged that his landlord refused to make reasonable accommodations in allowing him to move to a different location to address his issues of isolation.

Under the FHA, disability discrimination includes a "refusal to make 'reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.'" To state a claim under the FHA for failure to accommodate a disability, a plaintiff must allege facts showing that the defendant knew or reasonably should have been expected to know of the disability, that the accommodation was likely necessary to afford the disabled person an equal opportunity to use and enjoy the dwelling, that the requested accommodation was reasonable, and that the defendant refused to make the requested accommodation.

The ADA generally requires that a defendant not discriminate against individuals with disabilities in public services and make reasonable accommodations to enable them to take part in those services. To succeed on an ADA claim, a plaintiff must show that they were denied the opportunity to participate in or benefit from a public service or activity, or were otherwise discriminated against, due to their disability.

In this case, the plaintiff's FHA claim failed because he did not plead sufficient facts to show that the defendants intentionally discriminated against him because of his disability or failed to provide reasonable accommodations. Similarly, his ADA claim failed because he did not allege any facts showing that he was denied the opportunity to participate in or benefit from the defendants' services, programs, or activities, or was otherwise discriminated against by reason of his disability.

Conclusion: It's important to understand the requirements under the FHA and ADA to ensure individuals with disabilities are afforded equal opportunity to use and enjoy housing accommodations. Requested accommodations are reasonable where the cost is modest and they do not pose an undue hardship or a substantial burden on the housing provider. If you or someone you know has faced discrimination or a lack of reasonable accommodations in housing, seek legal advice to ensure your rights are protected.