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SAC's ONLINE LITIGATION ALERT: 2019-11 (03/11/2019)
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Arbitration

• Juen vs. Pinel Realtors, Inc. ▶
No. H043230 (Cal. App., 6DCA, 3/6/19)

Custom and habit evidence, used in place of producing a signature on a contract, will not be satisfied by testimony as to a policy, but must attest to adherence to that policy and seek to relate directly to the contract at hand.
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Business & Employment

• US Bank, Trustee for Lehman XS Trusts vs. GreenPoint Mortgage Funding, Inc. ▶
No. 17-1290, U.S. App. LEXIS 3727 (2nd Cir., 2/6/19)

*An accrual clause cannot operate to delay the commencement of a limitations period under New York law. **An indemnification agreement does not necessarily mean that one party’s failure to perform automatically gives rise to an independent claim for indemnification. ***An amended complaint does not relate back where the original complaint and the new claim put separate and distinct contracts and remedies at issue, such that defendant was not sufficiently on notice.
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Class Actions

• JPMorgan Chase & Company, In Re ▶
No. 18-20825 (5th Cir., 2/21/19)

Writ of mandamus denied, but court holds that district court erred in ordering notice of class action to employees who had signed arbitration agreements, which foreclosed participation in collective actions.
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• Nguyen vs. FXCM Inc. ▶
No. 17-cv-2729, U.S. Dist. LEXIS 16599 (S.D. N.Y., 2/1/19)

The Court (i) denies defendants’ motion to strike, holding that plaintiffs may rely, at the pleading stage, on settlements with government regulators as allegations made “upon information and belief;” and (ii) dismisses all claims under FRCP 12(b)(6).
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Regulatory

• Chazon QTA Quantitative Trading Artists, LLC & Fejokwu vs. CFTC ▶
No. 17-2408 (3rd Cir., 12/13/18)

A request to withdraw voluntarily from NFA registration ends with a permanent bar from registration for failing to cooperate in the withdrawal investigation.
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Securities Customers

• Gavaldon vs. StanChart Securities International, Inc. ▶
No. 16cv590 (S.D. Cal., 2/20/19)

*A complaint alleging fraud must state who made the fraudulent representations and when they were made. **Omitting the “when” prevents defendant from raising a valid statute of limitations defense. ***Making a representation that the defendant erroneously thought was true, but which later information showed was false, is not false. ****A claim that a defendant fraudulently represented that it conducted robust due diligence meets the particularity standard.
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• The Western and Southern Life Ins. Co. vs. Bank of New York Mellon ▶
No. C-170476 (Ohio App., 1Dist., 2/8/19)

*Unlike common law trusts where a trustee must act solely in the interests of the beneficiaries, an indenture trustee’s duties are strictly defined by and limited to the terms of the trust agreement. **Under New York law, the pre-default duties of an indenture trustee are limited to duties imposed by the indenture; however, after an event of default, the trustee’s obligations become more like an ordinary fiduciary and the trustee must act prudently to secure repayment of the underlying obligation.
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BOARD OF CONTRIBUTING LEGAL EDITORS

Richard P. Ryder
Editor-in-Chief, SLC

Senior Contributing Editors:          

Jack D. Ballard
Ballard & Littlefield, LLP
Houston, TX


Christopher G. Lazarini
Bass Berry & Sims PLC
Memphis, TN

    Paul J. Dubow
Arbitrator • Mediator
San Francisco, CA


Jeremy A. Root
Stinson Leonard Street LLP
Jefferson City, MO
    Jill I. Gross
Elisabeth Haub School of Law
Pace University
White Plains, NY

Ben Suter
Keesal Young & Logan
San Francisco, CA



Contributing Editors:

David C. Franceski, Jr.
Stradley Ronon
Stevens & Young LLP
Philadelphia, PA

Noah D. Sorkin
Capital Forensics, Inc.
New York, NY
    James L. Komie
Howard & Howard
Chicago, IL


Burton W. Wiand
Wiand Guerra King PL
Tampa, FL



NOTICE: The publisher accepts full responsibility for the summaries presented in this publication and for any views expressed therein. Our Contributing Editors and any law firm or organization with which the Contributing Editors may be affiliated bear no responsibility for the contents of this publication. Moreover, by summarizing a particular decision, a Contributing Editor does not necessarily endorse the holding. To the extent comments or opinions are expressed herein by any editor, such comments or opinions are not necessarily the views of other Contributing Editors or the law firm or organization with which they may be affiliated. Editorial comments and analysis are designed to stimulate thought and convey information of value; they are not intended as, nor do they constitute, legal advice. The decisions summarized herein should not be viewed as authoritative precedent without proper citechecking and adherence to local court rules.
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