Articles Posted in Contracts

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Corsair obtained a $5,443,171.33 judgment against the defendants. Corsair learned that one of the defendants had a contract with National Resources, entitling the defendant to a payment of more than $3,000,000 and obtained a writ of execution.  Corsair engaged Connecticut State Marshall Pesiri, who successfully served the writ. National Resources ignored it, relinquishing $2,308,504 to Corsair only after Corsair instituted and won a subsequent turnover action. Perisi sued, seeking a statutory commission. The Second Circuit concluded that Connecticut state law was insufficiently developed for the court to answer the question raised on appeal. The court certified questions to the Connecticut Supreme Court. The court responded that Marshal Pesiri was entitled to a 15 percent fee under CONN. GEN. STAT. 52‐8 261(a)(F). It does not matter that the writ was ignored and that the monies that were the subject of the writ were procured only after the judgment creditor, not the marshal, pursued further enforcement proceedings in the courts. The Second Circuit then affirmed the district court’s fee award in the amount of $346,275.60. View "Corsair Special Situations Fund, L.P. v. Pesiri" on Justia Law

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Corsair obtained a $5,443,171.33 judgment against the defendants. Corsair learned that one of the defendants had a contract with National Resources, entitling the defendant to a payment of more than $3,000,000 and obtained a writ of execution.  Corsair engaged Connecticut State Marshall Pesiri, who successfully served the writ. National Resources ignored it, relinquishing $2,308,504 to Corsair only after Corsair instituted and won a subsequent turnover action. Perisi sued, seeking a statutory commission. The Second Circuit concluded that Connecticut state law was insufficiently developed for the court to answer the question raised on appeal. The court certified questions to the Connecticut Supreme Court. The court responded that Marshal Pesiri was entitled to a 15 percent fee under CONN. GEN. STAT. 52‐8 261(a)(F). It does not matter that the writ was ignored and that the monies that were the subject of the writ were procured only after the judgment creditor, not the marshal, pursued further enforcement proceedings in the courts. The Second Circuit then affirmed the district court’s fee award in the amount of $346,275.60. View "Corsair Special Situations Fund, L.P. v. Pesiri" on Justia Law

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Plaintiff filed suit seeking enforcement of an English judgment against defendant for failure to tender payment under a freight-derivative contract and asserted admiralty jurisdiction under 28 U.S.C. 1333(1). The Second Circuit vacated the district court's holding that admiralty jurisdiction did not exist. The court held that, considering plaintiff's identity as a shipping business together with the substance of the agreement, the agreement's principal objective was to further plaintiff's shipping business. Therefore, the court held that the agreement was a maritime contract subject to federal‐court jurisdiction under section 1333(1). The court remanded for further proceedings. View "d'Amico Dry Ltd. v. Primera Maritime (Hellas) Ltd." on Justia Law

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In this dispute between a judgment creditor and a Connecticut State Marshall over whether the Marshal was entitled to a statute that awards a commission, the Second Circuit concluded that Connecticut state law was insufficiently developed for the court to answer the question raised on appeal. Therefore, the court certified the following questions to the Connecticut Supreme Court: (1) Was Marshal Pesiri entitled to a fifteen percent fee under the terms of CONN. GEN. STAT. 52‐8 261(a)(F)? (2) In answering the first question, does it matter that the writ was ignored and that the monies that were the subject of the writ were procured only after the judgment creditor, not the marshal, pursued further enforcement proceedings in the courts? View "Corsair Special Situations Fund, L.P. v. Pesiri" on Justia Law

Posted in: Contracts

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Plaintiff filed suit against Lincoln, alleging violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227. The Second Circuit affirmed the district court's grant of summary judgment for Lincoln, holding that plaintiff did introduce sufficient evidence from which a jury could conclude that he revoked his consent, but that the TCPA does not permit a consumer to revoke its consent to be called when that consent forms part of a bargained‐for exchange. In this case, plaintiff's consent was not provided gratuitously, it was included as an express provision of a contract to lease an automobile from Lincoln. View "Reyes v. Lincoln Automotive Financial Services" on Justia Law

Posted in: Consumer Law, Contracts

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Carrington appealed the district court's judgment requiring them to pay plaintiff, the indirect purchaser and assignee of a limited prejudgment interest in defendants' fund, damages plus prejudgment interest for breach of the limited partnership agreement. Defendants principally contend that the district court erred in its interpretation of the agreement and should have granted summary judgment in their favor on the issue of liability. Defendants argue that, in any event, permitting plaintiff to withdraw from the fund would have precipitated a sale of fund assets at distressed prices, making it impossible for plaintiff to receive more than a minuscule distribution, if any. The court rejected defendants' challenges to the district court's ruling on the issue of liability. However, the court concluded that there were factual issues to be tried as to the calculation of damages. Accordingly, the court vacated and remanded for further proceedings. View "Umbach v. Carrington Investment Partners (US)" on Justia Law

Posted in: Business Law, Contracts

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Plaintiffs appealed the district court's conclusion that defendant, a licensed bail bond agent, was entitled to retain the bond premium in this case even though bail was denied. The court certified to the Court of Appeals of the State of New York the following question: Whether an entity engaged in the “bail business,” as defined in NYIL 6801(a)(1), may retain its “premium or compensation,” as described in NYIL 6804(a), where a bond posted pursuant to NYCPL 520.20 is denied at a bail-sufficiency hearing conducted pursuant to NYCPL 520.30, and the criminal defendant that is the subject of the bond is never admitted to bail. View "Gevorkyan v. Judelson" on Justia Law

Posted in: Contracts

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Process America filed suit against Cynergy for breach of contract and Cynergy counterclaimed, alleging, inter alia, that Process America improperly solicited its customers. The district court held that although both parties had breached the contract, Cynergy’s liability was capped by the contract. The district court awarded Cynergy a net total of $8,521,182 in damages. The court concluded that the solicitation of merchants, and transfer of a portion of the Portfolio to a third party, violate the Independent Sales Organization (ISO) Agreement which permits transfer only pursuant to Section 2.6.B of the ISO Agreement, such that Cynergy is entitled to damages based on the increased rate of attrition of merchant accounts in the Portfolio; the court rejected Process America's argument that, even if the solicitation of merchants would ordinarily be a breach of the non‐solicitation clause, it is excused from performing its obligations under that provision as a result of Cynergy’s failure to pay Process America residuals; the court agreed with the district court's finding that the plain language of Section 4.6 limits damages for Cynergy’s breach of contract to $300,818; the court affirmed the district court’s damages calculation to the extent that it attributes 100% of the increased attrition to Process America; but the court agreed with Process America's contention that the damages calculation was erroneous because it improperly included residuals that would have been paid to Process America. Accordingly, the court affirmed the district court’s interim decisions regarding Process America’s liability. The court vacated the district court's calculation of damages and remanded for further proceedings. View "Process America v. Cynergy Holdings" on Justia Law

Posted in: Contracts

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The principal issue in this appeal is whether the district court correctly determined the measure of compensation due to Noteholders, represented by BNY Melon, arising from the underpayment to the Noteholders by Chesapeake in connection with Chesapeake's early redemption of the Notes. The court concluded, substantially for the reasons set forth in the district court's thorough opinion, that the district court correctly determined the measure of compensation due to the Noteholders in the circumstances presented. In this case, applying New York law, Section 1.7 of the Supplemental Indenture - a contract Chesapeake does not contend was invalid or unenforceable - dictates the Noteholders’ recovery arising from Chesapeake’s underpayment for its May 13, 2013 redemption. Because Chesapeake completed its redemption on May 13, 2013, it owed the Noteholders the Make‐Whole Price for that redemption, pursuant to Section 1.7(c), and it breached the Supplemental Indenture by paying only the At‐Par Price. The court agreed with the district court that the correct damages award was the difference between the At‐Par Price and the Make‐Whole Price, plus prejudgment interest. To hold otherwise would frustrate the Noteholders’ legitimate expectations regarding their rights under the Supplemental Indenture. Furthermore, Chesapeake was similarly on notice at all relevant times that the district court could require it to pay the Make‐Whole Price for its May 13, 2013 redemption. Finally, the court rejected Chesapeake’s contention that, even if the district court properly awarded breach‐of‐contract damages, it erred by awarding compensation that allowed the Noteholders to recoup in excess of the value of the Notes before the redemption. Accordingly, the court affirmed the judgment. View "Chesapeake Energy v. Bank of New York Mellon Trust" on Justia Law

Posted in: Contracts

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Defendant was convicted of participating in a racketeering enterprise and conspiracy, and a narcotics conspiracy. Defendant was also convicted of two counts of possession of a firearm in furtherance of a crime of violence or drug trafficking crime: one for possession of a firearm in furtherance of the racketeering enterprise and conspiracy and the other for possession of a firearm in furtherance of the narcotics conspiracy. Defendant appealed. The court held in United States v. Anglin, that the existence of a second or subsequent 18 U.S.C. 924(c) conviction is a sentencing factor that need not be determined by a jury. Alleyne v. United States has not altered the court's holding in Anglin. In this case, the court concluded that, given the evidence that defendant possessed multiple firearms on separate occasions, there was an ample basis for the jury to convict him of two separate violations of section 924(c); that there was no jury instruction clarifying that the firearms subject of each section 924(c) charge must have been possessed on separate occasions does not amount to plain error; and it was not plain error for the district court to find implicitly at sentencing that the two section 924(c) convictions were based on separate conduct, thereby subjecting defendant to mandatory minimum, consecutive sentences based on a “second or subsequent” section 924(c) conviction. The court considered defendant's remaining arguments and found them to be without merit. Accordingly, the court affirmed the judgment. View "United States v. Boykin" on Justia Law

Posted in: Contracts