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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. 2020 NY Slip Op 06124 [187 AD3d 1185]
Regular Panel Decision
Oct 28, 2020

Matter of CEO Bus. Brokers, Inc. v. 1431 Utica Ave. Corp.

This case involves an appeal regarding the confirmation of an arbitration award. CEO Business Brokers, Inc. initiated a proceeding to confirm an arbitration award against 1431 Utica Avenue Corp. and Domenick Landriscina, stemming from a business brokerage agreement. The Supreme Court, Queens County, granted the petition to confirm the award and denied the cross-motion to vacate it. On appeal, the Appellate Division, Second Department, affirmed the amended judgment. The court found that the arbitration award was not irrational and that the appellants failed to demonstrate by clear and convincing evidence that their rights were prejudiced by misconduct.

arbitration awardCPLR article 75vacate arbitration awardconfirm arbitration awardjudicial reviewbusiness brokerage agreementcontract disputeappellate reviewmisconductirrational award
References
9
Case No. MISSING
Regular Panel Decision

In Re Dana Corp.

Dana Corporation, as the debtor, sought court approval for its Executive Compensation Motion, which included the assumption of employment agreements and the establishment of a long-term incentive plan (LTIP) for its CEO and Senior Executives. This was Dana’s second attempt after an earlier, less incentivizing proposal was denied. The motion faced opposition from the U.S. Trustee, unions, and a non-union retiree committee, who raised concerns under Bankruptcy Code section 503(c) regarding retention and severance payments to insiders. The Court, treating the motion de novo, determined that the revised plan was a legitimate incentive program, not primarily retentive, and generally permissible under the Debtors’ sound business judgment. However, the Court expressed concern over the potential cumulative generosity of both the annual and long-term incentive plans for 2007-2008 without a clear ceiling. Consequently, the Executive Compensation Motion was granted, but conditioned on the submission of an order establishing an appropriate annual compensation cap for the CEO and Senior Executives.

Bankruptcy LawExecutive CompensationIncentive PlansEmployment AgreementsChapter 11 ReorganizationCreditors' RightsBusiness Judgment RuleKey Employee Retention Programs (KERPs)Severance PayNon-compete Clauses
References
28
Case No. 2018 NY Slip Op 28137
Regular Panel Decision
Apr 27, 2018

Matter of Xerox Corp. Consolidated Shareholder Litig.

The case concerns a proposed transaction where Fujifilm Holdings Corp. would acquire a 50.1% controlling interest in Xerox Corp. for no cash payment to Xerox shareholders. Major Xerox shareholders, including Darwin Deason and several pension funds, sought preliminary injunctions, alleging that Xerox CEO Jeff Jacobson was conflicted during negotiations, prioritizing his self-interest in retaining his CEO position, and that the Xerox Board failed its fiduciary duties by approving a deal disproportionately favorable to Fuji. The court found a likelihood of success on claims that Jacobson breached his fiduciary duties and that the Board failed to properly supervise him, leading to a "cashless acquisition" for Fuji, which the court stated "enabled Fuji to 'take control of Xerox without spending a penny.'" Consequently, the court granted preliminary injunctions, enjoining the proposed transaction and mandating the waiver of Xerox's advance notice bylaw deadline to allow shareholders to nominate an alternative slate of directors, allowing shareholders a fair opportunity to consider nominations given the material, post-deadline changes and the egregious terms of the proposed control transfer.

Shareholder LitigationPreliminary InjunctionFiduciary Duty BreachCorporate GovernanceMerger and AcquisitionAdvance Notice BylawProxy ContestConflicted CEOBoard of DirectorsCorporate Control
References
20
Case No. ADJ9411508
Regular
Dec 02, 2018

JUAN FRANCO SANDOVAL vs. TUTTLE FAMILY ENTERPRISES dba PEERLESS BUILDING, TRAVELERS PROPERTY CASUALTY COMPANY

The Workers' Compensation Appeals Board granted the lien claimant's petition for reconsideration. The Board found that the lien claimant's failure to appear at trial and its inadequate attempts to secure a continuance were due to excusable neglect stemming from the hospitalization of its CEO. Consequently, the prior order disallowing the lien was rescinded. The matter has been returned to the trial level for further proceedings.

Lien ClaimantPetition for ReconsiderationFindings and OrderWorkers' Compensation Appeals BoardAdministrative Law JudgeContinuanceExcusable NeglectMedical EmergencyE-filing ProceduresSanctions
References
1
Case No. VNO 539067
Regular
Jan 28, 2008

ROSE ROBINSON vs. AMERICAN WELLNESS \& IMAGING, AIG CLAIMS SERVICES

The Workers' Compensation Appeals Board denied reconsideration, upholding a finding of industrial injury for Rose Robinson. The applicant was raped by her employer's CEO under circumstances deemed a "sudden and extraordinary" employment event, thus bypassing the six-month employment requirement for psychiatric injuries. The Board adopted the WCJ's report, which found the applicant credible and the injury compensable as it arose out of and occurred in the course of employment.

Workers' Compensation Appeals BoardRose RobinsonAmerican Wellness & ImagingAIG Claims ServicesOrder Denying ReconsiderationLabor Code section 3208.3(d)sudden and extraordinary employment eventpsychic disturbancesrapeemployer's CEO
References
3
Case No. MISSING
Regular Panel Decision

Arrigo v. BLUE FISH COMMODITIES, INC.

Plaintiff Anthony Arrigo brought an action against Blue Fish Commodities, Inc. and its CEO, Andrew Fisher, alleging unpaid overtime compensation in violation of the Fair Labor Standards Act and New York labor laws. Defendants moved to compel arbitration based on an employment agreement containing an arbitration provision. The Court found that the parties had agreed to arbitrate, Arrigo's claims fell within the scope of the agreement, and FLSA claims are arbitrable. Therefore, the Court granted the defendants' motion to compel arbitration and dismissed the complaint without prejudice.

Overtime CompensationFair Labor Standards ActFLSAArbitration AgreementEmployment LawMotion to Compel ArbitrationDismissal Without PrejudiceFederal Arbitration ActNew York Labor LawWage and Hour
References
30
Case No. 2020 NY Slip Op 01309 [180 AD3d 607]
Regular Panel Decision
Feb 25, 2020

Rodriguez v. Dairyland HP, LLC

The Appellate Division affirmed the Supreme Court's order granting the defendant's motion for summary judgment, dismissing the complaint. The court found that the plaintiff's claims against Dairyland HP, LLC were barred by Workers' Compensation Law § 11. This was based on the determination that Dairyland HP, LLC was the alter ego of the plaintiff's employers, Chef's Warehouse (CW) or Dairyland USA Corp. (USA). Evidence showed that defendant and USA were wholly-owned subsidiaries of CW, shared a common CEO, administrative, financial, and insurance resources, and CW paid the workers' compensation premiums covering all subsidiaries.

Summary JudgmentWorkers' Compensation LawAlter Ego DoctrineAppellate DivisionCorporate SubsidiariesCommon OwnershipInsurance ResourcesComplaint DismissalIntercorporate RelationshipsFirst Department
References
2
Case No. 2018 NY Slip Op 06862 [165 AD3d 501]
Regular Panel Decision
Oct 16, 2018

Deason v. Fujifilm Holdings Corp.

The Appellate Division, First Department, reversed the Supreme Court's orders, dismissing the complaints against Fujifilm Holdings Corp. and dissolving preliminary injunctions. The court found that plaintiffs failed to demonstrate bad faith or a disabling interest among Xerox directors, thus failing to show a likelihood of success on the merits regarding breach of fiduciary duty. The business judgment rule was deemed applicable, and alleged conflicts of interest, such as that of former CEO Jacobson, were found to have been acknowledged without misleading the board. Furthermore, claims alleging aiding and abetting a breach of fiduciary duty against Fuji were dismissed due to lack of particularity.

Shareholder LitigationFiduciary DutyBusiness Judgment RulePreliminary InjunctionDismissalCorporate GovernanceMergers and AcquisitionsAppellate DivisionBad FaithDisabling Interest
References
10
Case No. MISSING
Regular Panel Decision

Singer v. Jefferies & Co.

Plaintiff sued his former employer, Jefferies & Co., and its CEO, Boyd Jefferies, for damages to his reputation due to an illegal stock trading scheme. Defendants sought to compel arbitration under NASD rules, which the trial court granted. The Appellate Division reversed, concluding the dispute was not arbitrable, but this Court reversed the Appellate Division's decision. This Court held that the broad arbitration agreement, governed by the Federal Arbitration Act, applies even when the underlying controversy involves illegal activity and statutory violations. The Court further determined that defendants did not waive their right to arbitration by engaging in preliminary litigation and that the claim against Boyd Jefferies was arbitrable as both were 'associated persons' of a member.

ArbitrationSecurities LawFederal Arbitration ActEmployment DisputeReputation DamageIllegal Stock TradingWaiverArbitrabilityNASD CodeFederal Policy
References
19
Case No. 09-CV-4074 (ADS)(AKT)
Regular Panel Decision

In re Gentiva Securities Litigation

This case involves a consolidated securities fraud class action filed by the Los Angeles City Employees’ Retirement System (LACERS) against Gentiva Health Services, Inc., and several of its executives. LACERS alleged that Gentiva inflated its stock price by ordering medically unnecessary home health services and billing Medicare for them. After initial dismissals and amendments, the court addressed a motion for partial reconsideration. The court dismissed remaining claims against former CFO John R. Potapchuk and the corporate entity Gentiva but sustained Section 10(b) and 20(a) claims against former CEO Ronald A. Malone, based on a theory of motive and opportunity related to insider stock sales.

Securities FraudClass ActionStock ManipulationMedicare FraudScienterMotive and OpportunityControl Person LiabilityPSLRARule 10b-5Securities Exchange Act of 1934
References
51
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