New York Court of Appeals

The New York Court of Appeals recently endorsed the trial court’s discretion to grant leave to amend a complaint under CPLR 3025 (b), holding that when the appellate court dismisses the plaintiffs’ complaint without prejudice, and the original action remained pending in the trial court with defendants’ counterclaims, the trial court may grant plaintiffs leave to file a third amended complaint.

The New York Court of Appeals recently clarified and reinforced the attorney-client privilege, explaining that certain internal training materials reflecting legal analysis of statutory, regulatory, and decisional law constituted attorney-client communications “prepared for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship,” and rejected numerous arguments to the contrary.

A divided New York Court of Appeals recently held that Civil Rights Law § 50-a bars disclosure of police officer personnel records except under very limited circumstances, eliminating access to such records by the press or advocacy groups under the Freedom of Information Law (“FOIL”) even if the police department itself is willing to release them and even if they are redacted. The decision, In the Matter of New York Civil Liberties Union v. New York City Police Department, came with two dissents arguing that it is a significant break with earlier case law in which the Court construed FOIL exemptions more narrowly and at least suggested that agencies and the lower courts had more flexibility to effectuate FOIL’s goal of transparency.

A unanimous New York Court of Appeals recently held that the acceptance of an auction bid for the sale of a syndicated loan may constitute a final and binding trade, even if there is language indicating that the agreement is “subject to” the execution of a mutually acceptable, written agreement. The ruling overturns a New York Appellate Court decision that would have permitted parties to change their minds after agreeing to trades during a competitive online auction. The holding of New York’s highest court establishes that oral and electronic agreements in the debt and equity market can be sufficient under certain circumstances to form final and binding agreements.

A sharply divided New York Court of Appeals recently held that defendants who allegedly made intentional and repeated use of New York correspondent bank accounts for money laundering thereby purposefully transacted business related to the plaintiffs’ claims, and thus were subject to the personal jurisdiction of the New York courts. According to the three-judge dissent, the decision, Rushaid v. Pictet & Cie, broke with 40 years of precedent, expanding the reach of the state’s long arm statute to encompass individuals who performed no acts directed at New York. Because correspondent bank accounts enable foreign banks to facilitate transactions in U.S. currency and the U.S. market, and New York is the home of many correspondent banks, any expansion of personal jurisdiction in New York based on correspondent banking relationships could have a significant impact. Courts and practitioners may have to reconsider their assumptions about personal jurisdiction in future cases.

Your client is sued for failure to pay on a contract and says it shouldn’t have to pay because the prices were fixed by a cartel or that it was strong-armed into paying for a “bundle” of services or distribution channels even though it only wanted a subset of the bundle. Is that a defense? After all, aren’t contracts for unlawful ends unenforceable?

The answer, most often, is “no.” A recent decision by a New York Commercial Division judge provides a useful reminder of the fairly limited allowance of antitrust defenses to contract claims.

Last Thursday, the New York Court of Appeals issued a stark reminder to transactional lawyers: no matter how much “common interest” two parties may have with respect to a transaction, the common interest doctrine may not protect their communications.

In Ambac Assurance Corp. v. Countrywide Home Loans, Inc., New York’s highest court held, in a 4-2 decision, that a party waives its attorney-client privilege if it shares privileged information with another party unless (i) those two parties share a common legal interest, (ii) the communication between the parties was made in furtherance of that legal interest, and (iii) the communication relates to pending or anticipated litigation.

In Jinnaras v. Alfant, decided on May 5, 2016, the New York Court of Appeals rejected a proposed settlement of a shareholder class action, where the proposed settlement would have deprived out-of-state class members of a “cognizable property interest” by failing to provide a mechanism for class members residing