New York Creates Rocket-Docket for Commercial Disputes—But Accelerated Adjudication Comes With Trade-Offs
English – American Litigation Forum
Eric Fishman is a Litigation partner in the New York office. He maintains a diverse commercial litigation and arbitration practice, with a concentration in three practice areas: (i) representing aircraft and rolling stock manufacturers, as well as airlines and aircraft lessors, in disputes arising out of the design, build and sale of transportation assets and equipment; (ii) representing financial institutions and companies in disputes arising out of acquisitions and investments, as well as products to hedge against investment risk; and (iii) representing companies in disputes arising out of alleged unfair business practices.
Mr. Fishman has written and lectured widely on the complex contract and business issues underlying these types of disputes:
- Mr. Fishman has been engaged to testify as an expert witness on New York contract law and UCC Article 2 principles in disputes venued in Canada and the Philippines.
- In 2014, Mr. Fishman received the Burton Distinguished Legal Writing Award for various articles he authored concerning how to draft contracts to minimize litigation risk (the Burton Foundation is run in association with the Library of Congress).
- Mr. Fishman serves as Co-Editor of the forthcoming chapter “Excuse Doctrines,” in Commercial Contracts, 2d Edition (2014). In 2013, Mr. Fishman served as a columnist examining contract issues for Corporate Counsel magazine.
Mr. Fishman has also taught appellate advocacy at the University of Connecticut School and is a recipient of the Outstanding Pro Bono Service Award from the Legal Aid Society. He is a member of the Arbitration Committee of the International Institute for Conflict Prevention and Resolution (CPR), and serves on the Steering Committee for the English-American Litigation Forum. He has lectured on litigation, arbitration and contract issues at the Practicing Law Institute, the New York City Bar Association and other venues.
Project Dispute Engagements
With respect to project disputes, Mr. Fishman has been privileged to serve as long-time counsel to Bombardier Aerospace. He has also advised, among others, WestJet and Kawasaki Rail Corporation on diverse procurement disputes. Representative engagements include:
- Gage v. Northrup Grumman, et al. (W.D. Tex. 2013): Represented Bombardier in False Claims Act dispute relating to parts certifications. Secured dismissal of complaint.
- WestJet v. LiveTV (Del. 2013): Representing WestJet in dispute with LiveTV relating to the installation, servicing and removal of inflight entertainment systems.
- Sky Capital, Ltd. v. Bombardier Inc., et al (Dallas County, Texas 2012): Represented Bombardier in $40 million contract breach and fraud dispute arising out of aircraft purchase agreement. After five week jury trial, Bombardier found to have no liability.
- IOTC Air, LLC v. Bombardier Inc., et ano (S.D. FL 2012): Represented Bombardier in connection with breach of contract and fraud claims arising out of purchase and sale agreement. Secured judgment on the pleadings.
- Bombardier Transit Corp. v. Southern California Regional Rail Authority (IFB No. EP 110-04). Successfully represented Bombardier in protesting decision to disqualify contractor from bidding on rail procurement. The rail authority canceled the procurement in favor of a new request for proposals.
- Bombardier Corp. v. National Railroad Passenger Corp., 298 F. Supp.2d 1 (D.D.C. 2002), aff’d 333 F.3d 250 (D.C. Cir. 2003): Successfully prosecuted $200 million delay and disruption claim brought on behalf of manufacturer of high-speed trains.
Investment and Acquisition Engagements
With respect to investment and acquisition disputes, Mr. Fishman has served as counsel to, among others, Wells Fargo, Bank of New York-Mellon, Societe Generale, AO Reinsurance, and Public Service Resources Corporation. Representative engagements include:
- Picard, Trustee for the Liquidation of Bernard L. Madoff Investment Securities LLC v. Falcon Private Bank LTD f/k/a/ AIG Private Bank AG (SDNY Bankr. 2011-present): Defending private bank against “claw back” claims brought by trustee seeking tens of millions of dollars in redemption payments.
- Karfunkel v. Sassower (NY Supreme Court 2012): Represented defendant, manager of a private equity fund, in connection with a claim that he fraudulently induced an investment in a chemical commodities trading business. Secured summary judgment dismissing claim in its entirety.
- Reinsurance Dispute (Confidential Arbitration 2011): Represented reinsurer in multi-million dollar dispute with monoline insurance company concerning whether reinsurance covered certain losses under credit default swaps.
- Aon Financial Prods., Inc. v. Societe Generale, 476 F.3d 90 (2d Cir. 2007): Represented Soc Gen as the seller of protection under a credit default swap. Court held that credit event did not occur and that Soc Gen thus had no payment obligations under CDS.
- Jean Coutu v. Wells Fargo Bank (SDNY 2006): defended Wells Fargo as indenture trustee for $850 million of debt securities in litigation testing whether proposed sale of US operations was “all or substantially all” of borrower’s assets under debt indentures.
- End of Lease Appraisal Proceeding (Confidential Arbitration): Represented owner-participant in dispute arising out of end-of-lease valuation of power plant. After a full appraisal proceeding, secured award valuing the plant at more than three times the lessee's proposed purchase price.
- Numerous Confidential Arbitration and Auditor Proceedings Related to Earn-Out Disputes.
Business Tort and Unfair Business Practice Engagements
Mr. Fishman’s diverse commercial practice often involves disputes arising out of alleged commercial torts and violations of statutes regulating business conduct. Representative engagements include:
- Antitrust: Anderson News v. American Media Inc., et al. (SDNY 2009-present). Representing American Media as a defendant in a multi-party, multi-million dollar antitrust action.
- Trade Dress Infringement: Tecnimed SRL v. Kidz-Med, Inc., et al., 763 F. Supp.2d 395 (2011). On behalf of thermometer manufacturer, secured preliminary injunction against trade dress infringement by a former distributor and an order compelling distributor to recall product from over 1,000 stores.
- False Claims Act: Totten v. Bombardier, 380 F.3d 488 (D.C. Cir. 2004). Represented Bombardier Transportation in precedent-setting FCA matter establishing that qui tam relators had to demonstrate that alleged claims were “presented” to the federal government; dismissal of the complaint affirmed on appeal.
- Conversion: Mathieson v. American Media (S.D. FL 2006). Represented American Media in defending against conversion claims of photographers seeking damages for photographs destroyed in anthrax attack; obtained summary judgment.
United States Court of Appeals for the District of Columbia, the Southern and Eastern Federal District Courts of New York, the Federal District Court of Connecticut and the Federal District Court for the District of Columbia.
- "Drafting a Better Severability Clause", Corporate Counsel, Authors: Eric Fishman, Robert A. James, 10/1/2013
- "Arbitration Clauses That Avoid Arbitrability Disputes", Corporate Counsel, Author: Eric Fishman, 8/21/2013
- "Drafting A Better 'Best Efforts' Clause", Corporate Counsel, Authors: Eric Fishman, Aubrey D. Charette, 7/23/2013
- "4 Tips for a Better Liquidated Damages Clause", Corporate Counsel, Authors: Eric Fishman, Anne C. Lefever, 6/25/2013
- "Protect Expectations with an Adequate Assurances Provision", Corporate Counsel, Authors: Eric Fishman, Sara E. Stinson, 5/24/2013
- "Drafting a Better Choice-of-Law Clause", Corporate Counsel, Authors: Eric Fishman, Amanda H. Freyre, 4/19/2013
- Just Sign Here: Every Contract Is a Litigation Waiting to Happen, Corporate Counsel, Author: Eric Fishman, 9/27/2010
- “The Overlooked Arbitration Clause: How to Draft Them So They Work,” Bloomberg Corporate Law Journal, Fall 2008
- “Lenders Back Out? Here's What To Expect,” Buyouts, 8/18/2008
- When Arbitration Makes Matters Worse - Modifying and Streamlining Litigation Procedures can be a Smarter Option in Dispute Resolution, Legal Times, 10/23/2006
- "An Argument for the Recognition of Insolvency-Based Claims Under the Bankruptcy Code," Journal of Bankruptcy Law & Practice
- "Comments on Proposed Amended Rules 47 and 48," Pretrial Practice and Discovery Newsletter (with co-author)
- "Rule 26: A Review of the Practitioner's Experience," Pretrial Practice and Discovery Newsletter
- "Designating A Conservator: Whose Interests Are Served by a Best Interests Analysis?" Connecticut Bar Journal (with co-author)
- "Tax Consequences of Contract Breach: Proposed Relief for the Forced Realization of Income," Virginia Tax Review and reprinted in The Monthly Digest of Tax Articles