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New York Appellate Court Enforces ‘No Oral Modification’ Clause, Holds Parties to Their Written Agreement
Pillsbury Attorneys Consider the Implications of Two Doctrines Governing International Lawsuits
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Ed Flanders leads the law firm's New York office Litigation practice and is co-leader of the firm's Financial Services Litigation team. He represents companies in large, complex commercial litigation matters including claims arising out of major oil spills, project disputes involving construction, engineering, and procurement contracts, long term supply contracts, etc. He also represents banks acting in their capacity as indenture trustees, backup servicers, and other corporate trust functions. He recently represented the American Bankers Association, as amicus curie, in an action in which the New York Court of Appeals upheld the limited role of indenture trustees with respect to alleged duties regarding SEC reports filed by issuers.
- In re Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico, on April 20, 2010, MDL2179 (E.D. La. 2010-present): Co-lead trial counsel for a defendant in the multi-district litigation arising out of the Deepwater Horizon blowout and resulting oil spill. As a result of various settlements, our client is indemnified with respect to all claims for compensatory damages, and has settled with the U.S. government (subject to court approval) with respect to any claims for Clean Water Act penalties.
- Confidential AAA Arbitration: Representation of Japanese trading company in a AAA arbitration in a multi-million dollar dispute involving the purchase and sale of galvanized steel coils. The three member panel issued a final award in favor of our client in 2010, and denied the respondent's counterclaim in its entirety.
- Racepoint Partners, LLC v. JPMorgan Chase Bank, N.A. (N.Y. Ct. App. 2010): Submitted an amicus brief on behalf of the American Bankers Association supporting affirmance of a decision in an action arising out of the Enron bankruptcy. Plaintiff noteholders had sued JP Morgan, the Trustee on certain bonds issued by Enron, asserting that Enron and the Trustee had breached the governing indenture and the Trust Indenture Act when Enron filed fraudulent reports with the SEC and the Trustee. The Court of Appeals affirmed the First Department’s decision, holding that indenture trustees have no obligation to review issuer’s SEC filings for substance.
- Petróleos de Venezuela, S.A. v. New Brunswick Power Holding Corp. (2d. Cir. 2007): Represented Petróleos de Venezuela, S.A. (PDVSA), the Venezuelan national oil company, and its subsidiary, BITOR, in a multi-billion dollar dispute over the existence of an alleged long-term fuel supply contract. NB Power simultaneously commenced a lawsuit in Canada and an arbitration in New York against BITOR for reusing to sign the alleged contract, and also asserted claims against PDVSA on alter ego and agency grounds. We stayed the Canadian action and the arbitration, litigated the existence of the alleged supply contract in the district court and effectively stayed all proceedings against PDVSA by filing an appeal in the Second Circuit based on PDVSA's sovereign immunity. The case settled on the eve of the BITOR trial.
- Deutsche Bank Trust Company Americas v. Prinvest LLC, et al. (S.D.N.Y. 2007): Represented Deutsche Bank Trust Company America (DBTCA), which acted as the back-up servicer in an asset-backed securitization deal. We commenced a declaratory judgment action in the Southern District of New York seeking a determination that DBTCA did not breach any of its duties under the applicable agreements and obtained a stay of a related North Carolina state court action. The case settled soon thereafter.
- Semi-Tech Litigation, LLC v. Bankers Trust Co. (2nd Cir. 2006): Defended Bankers Trust in its capacity as indenture trustee in an action commenced by a litigation trust on behalf of former noteholders seeking $1 billion in damages alleging that Bankers Trust breached its duties under the TIA and the indenture. We obtained summary judgment in Bankers Trust’s favor, dismissing all claims, which was affirmed by the Second Circuit.
- Nacional Financiera, S.N.C. v. Bankers Trustee Co. Ltd. (N.Y. Sup. Ct. 2001): Represented Bankers Trustee, which acted as indenture trustee with respect to approximately $400 million of notes, in an action commenced by a guarantor of certain defaulted notes, alleging that the indenture trustee breached duties owed under the indenture that allegedly resulted in the plaintiff’s losses. We obtained summary judgment in Bankers Trustee’s favor. In related litigation brought against Bankers Trustee by noteholders, the federal district court granted our motion to dismiss the claims against our client.
- Representation of a Venezuelan engineering firm in an ICC arbitration in connection with the construction of a petroleum by-products handling facility being built in Venezuela.
- Representation of Bombardier Transportation in connection with a bid protest against the Southern California Regional Rail Authority with respect to a commuter rail car procurement.
- Representation of Bombardier Transportation in connection with its $200 million contract claim against Amtrak regarding the construction of the Northeast Corridor High-Speed Train System.
U.S. District Court for the Southern and Eastern Districts of New York; Second, Seventh Circuit and Eleventh Circuit Courts of Appeals
"#OMG! The Inevitable Intersection of Social Media and Litigation," Pillsbury CLE Marathon, February 2013
"Proven Strategies for Controlling the Cost of Review in a Defensible Manner" and "Global Electronic Discovery: Issues and Conflicts," IQPC Conference (Toronto), July 2010
“Controlling the Rising Costs of Electronic Discovery in the U.S.,” Japan Society Corporate Program, June 2008