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SAC's ONLINE LITIGATION ALERT: 2018-19 (05/14/2018)
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Arbitration

• Weiler vs. Marcus & Millichap Real Estate Investment Services, Inc. ▶
No. G053953 (Calif. App., 4 Dist., 4/30/18)

When a party who has engaged in arbitration in good faith in California is unable to afford to continue in such a forum, that party may seek relief from the superior court.
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• Weiler vs. Marcus & Millichap Real Estate Investment Services, Inc. ▶
No. 30-2015-00764843 (Cal. Super. Ct., Orange Cty., 5/25/16)

Prohibitively expensive fees in arbitration raises issues that the arbitrators are empowered to address; the courts should not intervene, once the proceedings are underway.
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• FutureSelect Portfolio Management, Inc. vs. Tremont Group Holdings, Inc. ▶
No. 93824-5, 413 P.3d 1 (Wash. Sup. Ct., 3/15/18)

In Washington, an order compelling arbitration is not immediately appealable, unless grounds for discretionary review apply.
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Business & Employment

• Centerboard Securities, LLC vs. Benefuel, Inc. ▶
No. 17-10344 (5th Cir., 3/12/18)

*Under Delaware law, a court interpreting an engagement agreement between an investment bank and a client must give unambiguous terms their plain meaning and may not use extrinsic evidence to vary the terms or to create an ambiguity. **Under Delaware law, corporate formalities may be disregarded only in exceptional cases.
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• Veg Liquidation, In Re: Fulmer vs. Fifth Third Equip. Fin. Co. ▶
No. 17-6017 (8th Cir., Bankr., 3/26/18)

Sales under section 363 of the Bankruptcy Code are entitled to heightened protection, and confer “rights good as against the world,” including against the bankruptcy trustee, even if he or she has no privity with the parties to the sale.
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• Prassas Capital, LLC vs. Blue Sphere Corp. ▶
No. 3:17-cv-131 (W.D. N.C., 3/30/18)

*The economic loss rule precludes parties from recovering economic loss in tort when the claims ought to be governed by contract law. **A contract violating the Securities Exchange Act is not void per se; rather, it is voidable at the option of the innocent party, who must seek rescission or other appropriate equitable relief to void the contract.
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Class Actions

• Altayyar vs. Etsy, Inc. ▶
No. 17-1180-cv (2nd Cir., 4/24/18)

Vague, aspirational statements and statements of opinion, policy or values are not factual statements that are actionable as misrepresentations under the federal securities laws.
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• Altayyar vs. Etsy, Inc. ▶
No. 15-cv-2785, 242 F.Supp.3d 161 (E.D. N.Y., 3/16/17)

*Where language in a pleading alleging misrepresentations in violation of the Securities Act of 1933 is evocative of negligence, it is unnecessary to plead with particularity. **In reporting financial metrics, it is sufficient for a prospectus to explain the methodology and supply investors with all the information they need to assess the reported financial results.
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Regulatory

• SEC vs. Rajaratnam ▶
No. 13-cv-01894 (S.D. N.Y., 1/14/18)

A consent decree is not enforceable either directly or in collateral proceedings by those who are not a party to the decree, even though they were intended beneficiaries of the decree.
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Securities Customers

• Schreck vs. Newsholme Financial Services, Inc. ▶
No. 17-1177 (D. N.J., 1/25/18)

The filing of an Amended Complaint that cures the bases cited by defendants in a pending motion to dismiss, can relieve the need for further consideration, in which case the Court will act sua sponte to terminate the motions administratively as moot.
Read More



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

Ben Suter
Keesal Young & Logan
San Francisco, CA
    Paul J. Dubow
Arbitrator • Mediator
San Francisco, CA


Pete S. Michaels
Greenberg Traurig LLP
Boston, MA
    Jill I. Gross
Elisabeth Haub School of Law
Pace University
White Plains, NY

Jeremy A. Root
Stinson Leonard Street LLP
Jefferson City, MO



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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