Litigation

Olshan’s litigation group prevailed before the Second Circuit in a significant case involving the application of Section 16’s short swing profit rule to hedge funds. The District Court ruled that the hedge fund was liable under Section 16 for $5 million in short swing profits on the theory that its delegation of investment authority over its portfolio to its registered investment advisor was ineffective.

Olshan's litigation group obtained a complete victory at trial on behalf of a long standing real estate client. The plaintiffs had invested with the client in a project that went into foreclosure after the makets crashed in 2008. The plaintiffs alleged a series of oral side deals, and also claimed that due to their lack of sophistication, the client owed them a fiduciary duty. They sought over $9 million after a three day bench trial, the court found for defendant, ruling that the plaintiffs' testimony was not credible.

Successfully convinced the First Department to grant summary judgment in favor of client Laurent Imbert on a claim brought by plaintiffs LCM Holdings GP, LLC and LCM Interest Holding, LLC, which sought to compel Imbert to forfeit his one-third membership interest in those entities. Imbert, a founder and former manager of LCM, had sought summary judgment in the New York Supreme Court on LCM’s claim, on the grounds that neither Delaware law nor the governing operating agreements permitted such forfeiture. The First Department agreed, reversing the Supreme Court’s denial of Imbert’s motion, and declaring that Imbert continues to own his shares in the subject companies and is not required to sell those shares to plaintiffs.

Represented Point Blank Enterprises, an international leader in the design and manufacture of body armor, in obtaining a broad injunction enjoining former Point Blank employees from starting up a competing body armor business. A Florida judge agreed with Olshan and Florida counsel, Berger Singerman LLP, that the ex-employees had misappropriated Point Blank’s confidential information and breached their non-compete and non-solicitation agreements and should be sidelined for 4½ months. The court further held that the former employees would be prohibited from soliciting Point Blank’s customers and employees for 16½ months.

New York State Supreme Court, Commercial Division, ruled in favor of Olshan clients, including Accipiter Capital Management, LLC, stating that a lack of damages and the Delaware business judgment rule blocked an investor's claims of grossly negligent management of her hedge fund interests.

Delaware Chancery Court ruled after a trial that a contested election to replace Digirad Corporation’s Board of Directors was valid. This was a significant decision on the conduct of proxy solicitations, leading to a victory for Olshan client Digirad. The litigation involved investors, the Red Oak Fund, which had challenged Digirad’s contested election for several director seats this past spring. Red Oak ran a slate of directors to oppose Digirad’s nominees in the 2013 election. Red Oak challenged the integrity of the election process via litigation. After several weeks of intense discovery and multiple depositions in a very short period of time, Olshan tried the case in Delaware. The decision validated the election process and thus the election of Digirad’s director nominees.

Recovered a $700,000 advance made by an affiliate of client Forest City Ratner to an electrical contractor, who later withdrew when the parties could not come to terms on a final contract. Olshan persuaded the Judge that the work could not be substantiated, and the Court awarded a judgment for virtually all of the amount advanced. The award provides protection for developers when wayward subcontractors do not return funds that are advanced.

Represented Bonjour Capital and its principal Charles Dayan in connection with its taking of the title to 333 Greene Avenue, Brooklyn, New York from two bitterly fighting debtors. Originally, Olshan represented Banco Popular in a mortgage foreclosure action against the debtors. After achieving summary judgment, Banco sold the mortgage to a third party. Olshan represented Bonjour in the purchase of the mortgage from that third party, then moved to lift the stay. After negotiating with the debtors, Bonjour took title through a plan of reorganization. The deal will allow the new owner to proceed with the 57-unit rental project, which has been on hold for six years.

Represented a group of mutual funds in a Delaware appraisal rights proceeding in which a settlement was reached on the eve of trial under which our clients received a 50% premium to the original merger consideration.

Received a judgment, after trial, in favor of a national banking institution against a municipality related to a dispute under a municipal leasing agreement.

Represented numerous holders of trademarks and other intellectual property rights in various enforcement and anti-counterfeiting litigation.

Recovered in excess of $10,000,000 in NASD arbitrations for several foreign investors who purchased complex derivative securities from a major financial institution.

Represented a hedge fund and its principals in an NASD enforcement action alleging fraud, in which, after a full hearing on the merits, the claims brought by the NASD were dismissed in their entirety.

Obtained a reversal from the Second Circuit Court of Appeals of a lower court decision overturning a $70 million judgment in our client's favor against the government of Russia. The appeal involved the interpretation and recognition of foreign arbitral awards.

Represented an investment fund in a Section 16(b) "short-swing profit" dispute in which the Second Circuit Court of Appeals reversed a District Court decision and awarded summary judgment to our client.

Represented a publicly-held company and its subsidiary involved in the internet auction business in a six-day jury trial in the Commercial Division of the New York Supreme Court in which the client received a jury award on all of its claims, including breach of fiduciary duty and unfair competition, against a former high-level officer and his newly-formed entity.

Received summary judgment for our client, an investment vehicle that purchased securities in a bankruptcy sale of a broker-dealer, in a matter before the Southern District Bankruptcy Court that involved claims of securities fraud.

Obtained summary judgment for a financial institution, dismissing multiple claims by a former employee alleging employment discrimination in violation of Title VII, the Americans with Disabilities Act and the Family Medical Leave Act.