Tour de Force: Force Majeure in Civil Law Jurisdictions – A Superior Force Majeure Doctrine?

That is not the case (pun intended) in civil law jurisdictions, in which codification predominates and the doctrine of force majeure typically is enshrined in statute. A few examples of force majeure statutes in civil law jurisdictions include:

• China (see People’s Republic of China General Rules of the Civil Law, Article 180 (defining force majeure as “unforeseeable, unavoidable and insurmountable objective conditions”));
• Quebec, Canada (see Canada Civil Code of Quebec, Article 1470 (“Superior force is an unforeseeable and irresistible event, including external causes with the same characteristics.”)); and
• Louisiana, the only civil law jurisdiction in the United States (see Louisiana Civil Code Articles 1873, 1875 (providing that “[a]n obligor is not liable for his failure to perform when it is caused by a fortuitous event that makes performance impossible,” and defining “fortuitous event” as an event “that, at the time the contract was made, could not have been reasonably foreseen”)).

Civil law jurisdictions also often codify the standard that must be satisfied for a party to invoke the doctrine, as well as certain defenses. See, e.g., Payne v. Hurwitz, 978 So. 2d 1000, 1005 (La. App. 1 Cir. 2008) (“To relieve an obligor of liability, a fortuitous event must make the performance truly impossible. La. C.C. art. 1873, Revision Comments—1984, (d).”); Civil Code of Quebec, Article 1470 (“A person may free himself from his liability for injury caused to another by proving that the injury results from superior force, unless he has undertaken to make reparation for it.”).

Even in civil law jurisdictions, however, judicial decisions still play a role in interpreting the application of the doctrine under the statutory provisions, including, for example, in determining whether a specific event meets the applicable codified definition of a force majeure event and the applicability of statutory defenses. See, e.g., Payne, 978 So. 2d at 1005-06 (holding that “Hurricane Katrina undoubtedly was a force majeure,” but declining to relieve real estate seller of obligation to complete sale where his “failure to perform was volitional in nature, rather than the type of insurmountable obstacle necessary to invoke the defense of force majeure.”); U.S. Bancorp Equip. Fin., Inc. v. Loews Exp. L.L.C., No. CIV.A. 06-10944, 2008 WL 108666, at *5 (E.D. La. Jan. 9, 2008) (looking to Louisiana Supreme Court decisions to determine whether a lessee’s inability to make rental payments was rendered impossible by Hurricane Katrina such that force majeure doctrine could be invoked, and concluding that case precedent established that economic infeasibility did not meet the requisite impossibility standard).

Common Law COVID-19 Force Majeure vs. Civil Law COVID-19 Force Majeure
The doctrine of force majeure serves a similar purpose in both common law and civil law jurisdictions: to provide an excuse for nonperformance or deficient performance when a particular type of event occurs. Of course, even within the two legal traditions, there are significant differences in how the law of force majeure has evolved and is applied—for example, California and New York, two common law jurisdictions, take different approaches to certain aspects of force majeure (e.g., California generally takes a more liberal approach than New York when interpreting force majeure clauses and determining whether the event at issue is a qualifying force majeure event). That said, there are some overarching differences in how the doctrine has evolved in the two legal traditions, regardless of local nuances.

For example, contracting parties in common law jurisdictions can prescribe the manner in which the force majeure doctrine may be invoked by defining the terms that will apply to their relationship. This may include, for example, excluding certain types of events, requiring the event to be unforeseeable, and defining specific causation requirements. However, parties in civil law jurisdictions are often limited by the parameters defined by statute. In civil law jurisdictions, for instance, the doctrine of force majeure can excuse obligations even where contractual language provides that the obligation is absolute.

A comparison of two COVID-related Canadian cases—one from a civil law jurisdiction and one from a common law jurisdiction—provides a good illustration of the overarching differences between the civil and common law approach to force majeure. In Hengyun International Investment Commerce Inc. c. 9368-7614 Quebec Inc., 2020 QCCS 2251, a commercial tenant argued that the Government of Quebec’s March 24, 2020 Order suspending certain non-essential business activities prevented it from generating revenue and, as a result, the statutory doctrine of superior force relieved its rent obligations. The Superior Court of Quebec agreed, and found that the government order prevented the landlord from fulfilling its obligation to provide peaceful enjoyment of the property and also excused the tenant’s duty to pay rent, notwithstanding that the lease expressly contemplated that rent was due even if peaceful enjoyment could not be delivered.

In the common law case of Durham Sports Barn Inc. Bankruptcy Proposal, 2020 ONSC 5938, a commercial tenant invoked Hengyun to make the same argument in connection with the Government of Ontario’s shutdown order. Like the lease in Hengyun, the Durham Sports lease expressly carved out rent obligations. Based on the plain language of the lease, the Ontario Superior Court rejected the tenant’s argument and distinguished Hengyun based on the different approaches to force majeure in Ontario and Quebec.

Developing COVID-19 Force Majeure Case Law

(Updates since the last issue are bolded below.)

FEDERAL

Central District of California (Extension of closing date)

Pacific Collective, LLC v. Exxonmobil Oil Corp., No. 2:20-cv-03887-ODW-RAO (C.D. Cal. 2020) (Commercial real estate buyer seeks to extend closing date of real estate purchase on basis that Safer-At-Home orders constitute force majeure as defined in purchase agreement; Removed from California state court on April 29, 2020; Case transferred from Judge John A. Kronstadt due to self-recusal; Case ordered referred to ADR.) (04/03/2020 Complaint; 04/30/2020 Order to Reassign Case; 05/05/2020 Order Returning Case For Reassignment Upon Recusal; 11/05/2020 Order/Referral to ADR)

Southern District of Florida (Excuse from rent payment)

Palm Springs Mile Assocs., LTD. v. The Men’s Wearhouse, Inc., No. 20-cv-21965 (S.D. Fla. 2020) (Men’s Warehouse invokes force majeure defense against breach of contract claim, alleging its obligation to pay rent was excused by COVID-19; Suit voluntarily dismissed on June 1, 2020.) (05/11/2020 Complaint; 06/01/2020 Notice of Voluntary Dismissal)

Northern District of Illinois (Excuse from rent payment)

In re Hitz Rest. Grp., No. 1:20-br-05012 (Bankr. N.D. Ill. 2020) (Restaurant-group tenant invokes “governmental action” phrase of force majeure clause, arguing rent obligation was excused by the Illinois Governor’s Coronavirus Order shutting down on-premises dining, theorizing that the Order prevented it from operating its business; Court agrees in part, holding tenant’s rent obligation would be reduced on a pro rata basis in accordance with the decrease in revenues from its inability to offer on-premises dining; Case dismissed on July 21, 2020.) (04/27/2020 Creditors’ Motion for Relief from Automatic Stay; 05/12/2020 Debtor’s Response; 05/26/2020 Creditors’ Reply; 06/02/2020 Memorandum Opinion) (See our prior article on this decision and an in‑depth analysis of this decision.)

Eastern District of New York (Excuse from transaction closing; Excuse from contract performance)

Gomel Capital Partners LLC v. 601 NE 29 Drive, LLC, et al., No. 1:20-cv-01922-FB-JO (E.D.N.Y. 2020) (Plaintiff seeks to terminate real property purchase contract and to recoup $275,000 deposit, alleging that the “outbreak of the COVID-19 global pandemic is a Force Majeure event, a quintessential ‘act of God’,” and invoking contractual provision that permits termination when a Force Majeure event prevents performance of the contract for “more than 30 days beyond the Closing Date”; Case voluntarily dismissed on July 13, 2020.) (04/27/2020 Complaint; 07/13/2020 Letter Motion by Plaintiff Informing Court of Settlement; 07/13/2020 Notice of Voluntary Dismissal with Prejudice)

Williamsburg Climbing Gym Co. LLC and Fifth Concerto Holdco, Inc. v. Ronit Realty LLC, No. 1:20-cv-02073 (E.D.N.Y. 2020) (Tenant seeks rescission and declaration that it lawfully terminated lease pursuant to common law doctrines of impossibility and frustration of purpose because COVID-19 pandemic and Governor’s executive orders mandated business closure and stoppage of construction; landlord asserts breach of contract counterclaim on basis that that lease’s force majeure clause expressly carves out rent payment obligations; tenant argues that force majeure clause is inapplicable because pandemic is not an enumerated event and frustration/impossibility are separate doctrines; counterclaims and answer amended on other grounds; Defendants agree with Plaintiffs to participate in mediation.) (05/06/2020 Complaint; 06/24/2020 Answer and Counterclaims; 06/24/2020 Defendant’s Pre-Motion Letter to the Court Re: Judgment on the Pleadings; 07/01/2020 Plaintiff’s Pre-Motion Response Letter to Court re: Judgment on the Pleadings; 07/23/2020 Amended Counterclaims; 08/06/2020 Answer to Amended Counterclaims; 08/14/2020 Plaintiff’s Pre-Motion Letter to the Court Re: Intent to file a Motion for Summary Judgement; 8/20/2020 Defendant’s Pre-Motion Letter to the Court Re: Plaintiff’s Intent to file a Motion for Summary Judgement; 10/23/2020 Defendant’s Letter Agreeing to Mediation)

Banco Santander (Brasil), S.A. v. American Airlines, Inc., No. 20-cv-3098 (E.D.N.Y. 2020) (Plaintiff seeks declaration that it is entitled to terminate pursuant to force majeure clause that covers “act of God” and “act of government”; Defendant argues that Plaintiff failed to state a claim because the agreement contemplated the force majeure event and those provisions govern; Plaintiff argues that it sufficiently plead that the agreement does not contemplate the force majeure event and is entitled to such declaration.) (07/10/2020 Complaint; 0/8/24/2020 Supplemental Complaint; 09/04/2020 Defendant’s Motion to Dismiss for Failure to State a Claim; 09/25/2020 Plaintiff’s Memorandum in Opposition to Motion to Dismiss for Failure to State a Claim, refiled under seal 10/07/2020; 10/09/2020 Defendant’s Reply in Support of Motion to Dismiss)

Southern District of New York (Excuse from contract performance; Excuse from payment obligation)

D’Amico Dry D.A.C. v. McInnis Cement Inc., No. 1:20-cv-03731-VEC (S.D.N.Y. 2020) (Shipping company alleges breach of contract against cement supplier and seeks maritime attachment of assets pending arbitration on the basis that supplier defaulted prior to COVID-19 and then invoked force majeure clause as a pretense to terminate; Court enters ex parte order of attachment and denied cement supplier’s motion to vacate same; Parties entered into a confidential settlement agreement.) (05/14/2020 Complaint; 05/25/2020 Defendant’s Motion to Vacate the Process of Maritime Attachment; 06/03/2020 Plaintiff’s Opposition to Defendant’s Motion to Vacate the Process of Maritime Attachment; 06/30/2020 Opinion Order Denying Motion to Vacate the Process of Maritime Attachment; 09/02/2020 Plaintiff’s Consent Letter; 09/03/2020 Memo Endorsement of Plaintiff’s Consent Letter; 09/04/2020 Order of Dismissal with Prejudice)

E2W, LLC v. Kidzania Operations, S.A.R.L., No. 1:20-cv-02866-ALC (S.D.N.Y. 2020) (Franchisee invokes force majeure clause in franchise agreement, alleging that government shutdown orders excuse its payment obligations and obligation to open an additional franchise location; Court, without any reasoning, grants franchisee’s application and compels the parties to maintain the status quo during the pendency of their arbitration; Parties arbitrating claims in the ICC.) (04/06/2020 Complaint; 05/11/2020 Order Granting Preliminary Injunction; 05/22/2020 Answer; 10/08/2020 Notice of Case Reassignment)

The Gap, Inc. v. Ponte Gadea New York LLC, No. 1:20-cv-04541 (S.D.N.Y. 2020) (Tenant seeks, inter alia, rescission/cancellation of lease, arguing that COVID-19 crisis and civil orders constitute a “casualty” within the meaning of the force majeure clause causing a permanent abatement of rent and the lease to terminate; Landlord counterclaims alleging breach of contract and argues that COVID-19 and civil orders are not within the scope of the force majeure clause and that the force majeure clause does not excuse contractual rent payment obligation; Tenant answers with general denials of landlord’s allegations regarding the force majeure clause and asserts affirmative defenses on other grounds; Tenant seeks stay pending decision by multidistrict litigation panel to consolidate this and 32 other substantively similar actions pending against Tenant in federal district courts; multidistrict litigation panel denied transfer.) (06/12/2020 Complaint; 07/07/2020 Answer and Counterclaims; 07/28/2020 Answer to Counterclaim; 08/11/2020 Plaintiff’s Motion to Stay Pending Decision by Multidistrict Litigation Panel to Accept Transfer of Federal Court Actions; 09/18/2020 Defendant’s Memorandum of Law in Further Support of Motion for Summary Judgment; 09/25/2020 Reply Memorandum of Law)

Hunter Commc’ns., Inc. v. Panasonic Avionics Corp., No. 1:20-cv-03434 (S.D.N.Y. 2020) (Defendant asserts force majeure defense against breach of contract claim brought by satellite communications provider, alleging that COVID-19 excused payment obligations under master service agreement for satellite bandwidth capacity services; Plaintiff argues that force majeure defense should be stricken because Defendant did not allege that payment breaches were result of COVID-19; Defendant file notice of intent to file amended answer; the Court grants Plaintiff’s motion to dismiss and then dismisses the case upon a settlement agreement.) (05/01/2020 Complaint; 06/26/2020 Answer; 07/17/2020 Plaintiff’s Letter Motion; 07/22/2020 Defendant’s Letter Reply; 08/21/2020 Amended Answer; 09/04/2020 Plaintiff’s Second Letter Motion; 09/11/2020 Defendant’s Second Letter Reply; 09/15/2020 Order Granting Second Letter Motion; 10/05/2020 Order of Dismissal)

JN Contemporary Art LLC v. Phillips Auctioneers, LLC, No. 1:20-cv-04370-DLC (S.D.N.Y. 2020) (Plaintiff seeks preliminary injunction preventing Defendant from invoking clause that allowed it to terminate consignment agreement if performance were delayed due to “circumstances beyond [the parties’] reasonable control,” and argues that Defendant’s decision to terminate was not caused by the pandemic but rather was the result of a deliberate business decision; Defendant argues that the pandemic is within the scope of the force majeure clause because it is a “natural disaster” and that performance is excused because the specific auction noted in the contract was postponed; Court denied mandatory injunction; Plaintiff amends complaint on other grounds; Defendant moves to dismiss the Complaint arguing that Plaintiff did not state a claim for breach of the agreement because Defendant’s performance was excused due to the force majeure clause; Plaintiff argues that the specific auction noted in the contract was not date nor site specific so Defendant was not prevented from performing and COVID-19 and government regulations were not specifically listed in the force majeure clause.) (06/09/2020 Complaint; 06/12/2020 Plaintiff’s Memorandum of Law in Support of Motion for Preliminary Injunction; 06/23/2020 Amended Complaint; 06/23/2020 Plaintiff’s Amended Memorandum of Law in Support of Motion for Preliminary Injunction; 07/02/2020 Defendant’s Memorandum in Opposition to Plaintiff’s Order to Show Cause for Preliminary Injunction and Temporary Restraining Order; 07/09/2020 Plaintiff’s Reply in Further Support of Motion for Preliminary Injunction; 07/15/2020 Order Denying Temporary Restraining Order and Preliminary Injunction; 07/31/2020 Plaintiff’s Second Amended Complaint; 08/28/2020 Defendant’s Motion to Dismiss Plaintiff’s Second Amended Complaint; 09/18/2020 Plaintiff’s First Memorandum of Law in Opposition to Motion to Dismiss; 10/02/2020 Defendant’s Reply Memorandum of Law)

Viamedia, Inc. v. WideOpenWest Finance, LLC, No. 1:20-cv-04064-VM (S.D.N.Y. 2020) (Plaintiff seeks preliminary injunction enjoining defendant from terminating television advertising management agreement, alleging that plaintiff’s late payments under agreement are excused based on “COVID-19 and the attendant economic crises prompted by government ordered lock downs and stay at home orders, which qualify as both acts of God and/or events beyond the reasonable ability of [plaintiff] to control”; Court denies preliminary injunctive relief; Parties commence arbitration and award issued under seal.) (05/27/2020 Plaintiff’s Memorandum of Law in Support of Motion for Preliminary Injunction; 06/19/2020 Amended Complaint; 06/22/2020 Order Denying Temporary Restraining Order and Preliminary Injunction; 09/18/2020 Defendant’s Letter Motion to Seal Arbitration Award; 09/22/2020 Order Granting Letter Motion to Seal; 09/24/2020 Defendant’s Motion to Confirm Arbitration Award)

Northern District of Texas (Excuse from refund obligation, Excuse from lease obligations)

W.L. Petrey Wholesale Co., Inc. v. V2 Incentives, LP, No. 20-cv-00447-A (N.D. Tex. 2020) (Plaintiff seeks refund of amounts paid to travel broker, arguing that force majeure clause requiring refund was triggered by government lockdowns and decrees that made trip impossible; Defendant argues affirmative defenses of repudiation, material breach, and failure to mitigate.) (05/19/2020 Amended Complaint; 06/16/2020 Answer)

Hibbett Sporting Goods, Inc. v. Weatherford Dunhill LLC c/o Dunhill Prop. Mgmt. Services, Inc., No. 4:20-cv-00607-O (N.D. Tex. 2020) (Tenant seeks declaratory judgment that rental and payment obligations and any obligation to continuously operate within mall were excused while Governor’s order mandated closure of the mall; Landlord moves for dismissal on procedural grounds; Court grants parties’ voluntary dismissal of the case with prejudice.) (06/10/2020 Complaint; 07/20/2020 Motion to Dismiss on Procedural Grounds; 08/20/2020 Plaintiff’s Response to Motion to Dismiss; 09/04/2020 Defendants’ Reply in Support of its Motion to Dismiss; 11/02/2020 Joint Stipulation of Voluntary Dismissal; 11/03/2020 Order Granting Joint Stipulation of Voluntary Dismissal)

Southern District of Texas (Excuse from transaction closing)

Khan v. Cinemex USA Real Estate Holdings, Inc., No. 4:20-cv-01178 (S.D. Tex. 2020) (Plaintiff seeks, inter alia, specific performance ordering defendant to close on cinema chain purchase transaction, arguing that defendant’s reasons for refusing to close that relate to COVID-19 are invalid because the contract was negotiated after the pandemic was declared and the Material Adverse Effect clause expressly excludes pandemics; case automatically stayed because defendant filed for chapter 11 bankruptcy.) (04/02/2020 Complaint; 06/01/2020 Order Staying the Case due to Defendant filing bankruptcy)

Eastern District of Virginia (Grounds for contract termination)

Sodexo Operations, LLC v. Va. Aquarium & Marine Sci. Ctr. Found., Inc., No. 2:20-cv-00309-AWA-RJK (E.D. Va. 2020) (Food services provider exercised right to terminate contract pursuant to “act of God” and “governmental policy” terms in force majeure clause and alleges defendant’s refusal to reimburse plaintiff for unamortized portion of capital investments is a breach of their contract; Parties settle and Court orders case dismissed with prejudice.) (06/19/2020 Complaint; 08/18/2020 Answer to Complaint and Affirmative Defenses; 08/28/2020 Motion to Dismiss Pursuant to Settlement Agreement; 09/03/2020 Order Dismissing Case)

STATE

Delaware (Excuse from transaction closing)

Forescout Technologies, Inc. v. Ferrari Grp. Holdings, L.P., No. 2020-0385 (Del. Ch. 2020) (Plaintiff/target asserts breach of contract and specific performance claims against defendant/buyer for failure to close merger deal worth $1.9 billion, on ground that COVID-19 does not constitute a Material Adverse Event permitting buyer’s termination of merger agreement; Buyer asserts declaratory judgment counterclaims that, inter alia, target’s financial troubles caused by COVID‑19 constitute a Material Adverse Event because, notwithstanding the explicit exclusion of “epidemics” and “pandemics” as Material Adverse Events, target’s financial troubles are disproportionate in comparison to other similar companies and therefore fall within the “materially disproportionate adverse effect” savings clause; Case voluntarily dismissed with prejudice on July 15, 2020.) (05/19/2020 Complaint; 06/05/2020 Counterclaim; 07/15/2020 Voluntary Dismissal with Prejudice)

Florida (Extension of closing date)

LFG Acquisitions, LLC v. CSPS Hotel Inc., No. 107048560 (Fla. Cir. Ct. Hillsborough Cty. 2020) (Plaintiff seeks to delay closing of real estate sale pursuant to force majeure provision in purchase agreement.) (05/05/2020 Complaint; 05/29/2020 Answer) (10/03/2020 Rested Answer to Complaint)

New York (Grounds for contract termination, Excuse from default)

850 Third Avenue Owner, LLC v. Discovery Commc’ns, No. 654148/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff-landlord sues defendant-tenant for unpaid rent after defendant-tenant allegedly overstayed at the property once its lease expired, arguing that the State’s COVID-19 restrictions are not “act[s] of disorder” within the scope of the force majeure clause and that they did not cause defendant’s inability to move out at the time the lease expired because moving companies were “essential businesses” that operated throughout the pandemic; Defendant argues that the “shortages of labor” and catchall clauses of the force majeure provision extended the time available to remove its property from the premises because the pandemic and government-ordered closures prevented Defendant from removing its property and caused labor shortages among moving companies.) (08/31/2020 Complaint; 10/23/2020 Answer and Counterclaims)

Anvil Mechanical, Inc. v. GCT Constructors JV, No. 654448/2020 (N.Y. Sup. Ct. N.Y.) (Plaintiff subcontractor seeks breach of contract damages against Defendant contractor, arguing that Defendant wrongfully terminated construction contract, that contractor failed to provide pandemic safety protocols, and that pandemic is a force majeure event) (09/15/2020 Complaint)

Bath & Body Works, LLC v. 304 PAS Owner LLC Successor, No. 651836/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff seeks rescission of commercial property lease and declaration the lease is unenforceable because COVID-19 and related government mandated shutdowns frustrated the purposes of the lease. Defendant argues plaintiff tenant recognized that a variety of “force majeure” events might occur, including those forming the bases of plaintiff’s claims, but specifically agreed in a lease rider that such events would only permit delayed performance, not excuse payment of any monetary sums due under the lease and its supplemental rider.) (06/08/2020 Complaint; 06/29/2020 Answer and Counterclaims) (8/19/2020 Reply to Counterclaims)

Change Your Life LLC v. 9E16 by 1771 Holdings LLC, No. 157335/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff-fitness center seeks declaration that the pandemic is a force majeure event excusing its obligation to pay rent to defendant-landlord during the pandemic; Plaintiff seeks to enjoin Defendant from terminating lease or possessing property, arguing that Governor’s Orders prohibit proceedings for nonpayment of rent; Defendant argues that Plaintiff’s injunctive relief should be denied because, inter alia, Defendant did not initiate a proceeding in violation of the Governor’s Orders; Defendant denies Plaintiff’s claim that pandemic is a force majeure event and seeks damages and other relief; Plaintiff broadly denies Defendant’s counterclaims.) (09/11/2020 Complaint; 09/11/2020 Plaintiff’s Memo in Support of Order to Show Cause; 10/02/2020 Defendant’s Memo in Opposition to Order to Show Cause; 10/06/2020 Answer and Counterclaims; 10/26/2020 Plaintiff’s Reply to Counterclaims)

D2 Mark LLC v. OREI VI Investments LLC, No. 652259/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Hotel group seeks, inter alia, to preliminarily enjoin junior creditor from foreclosing after hotel group missed one payment obligation due to COVID-19, arguing that loan agreement expressly excused defaults occurring “in connection with” a force majeure event; Court enjoins junior creditor from holding a sale before July 23 and orders junior creditor to issue new, commercially reasonable notice of sale.) (06/06/2020 Complaint; 06/23/2020 Decision and Order on Plaintiff’s Order to Show Cause; 08/03/2020 So-Ordered Stipulation Discontinuing the Action with Prejudice)

DHG Mgmt. Co. v. French Partners LLC, et al., No. 654319/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff-tenant seeks breach of contract damages against Defendant-landlord for preventing access to the property during the Government-ordered lockdown, arguing that access was expressly warranted and excepted from force majeure clause; Defendants move to dismiss, arguing that Governor’s Orders were beyond their control, that they mandated reductions in persons allowed on premises, and that Defendants allowed access to the property; Court denies motion to dismiss breach of contract count.) (09/09/2020 Complaint; 10/05/2020 Notice of Motion to Dismiss and Affirmation in Support of Motion to Dismiss; 10/12/2020 Affirmation in Opposition to Motion to Dismiss; 10/21/2020 Order Denying in Part Motion to Dismiss)

Iluka Resources Limited v. Chemours International Operations Sarl, et al., No. 653398/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Ore supplier seeks, inter alia, breach of contract damages and declaratory relief, arguing that the COVID-19 pandemic is not among the specified force majeure “events” and did not actually prevent buyer from accepting and paying for shipments of materials; Buyer moves to dismiss, arguing, inter alia, that its purchase obligation is excused pursuant to the contract’s “Excused Performance” (force majeure) clause because the pandemic diminished its customers’ need for ore; Supplier argues that Buyer failed to establish that customers’ diminished demand for ore excuses its obligation to take delivery; Buyer replies that its performance is excused pursuant to the clause because the pandemic is an “element[] of nature” that “hindered” its “ability to take or pay for Material.”) (08/06/2020 Complaint; 10/05/2020 Motion to Dismiss and Memorandum of Law in Support of Motion to Dismiss; 10/19/2020 Memorandum in Opposition to Motion to Dismiss; 11/02/2020 Reply Memorandum in Support of Motion to Dismiss)

N888JK Ltd. v. Equiom (Isle of Man) Ltd., No. 652122/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff seeks declaratory relief that it may keep a deposit paid pursuant to a used aircraft purchase agreement on the grounds that defendant unilaterally terminated the agreement; defendant asserts COVID-19 as a force majeure event permitting termination and demanded return of deposit.) (05/28/2020 Complaint; 07/22/2020 Answer with Counterclaims) (8/11/2020 Reply Counterclaims)

Roslyn Events Corp. v. Ber Dur Realty Corp., No. 607968/2020 (N.Y. Sup. Ct. Nassau Cty. 2020) (Tenant seeks declaratory relief and to enjoin landlord from holding tenant in default of commercial lease, arguing that COVID-19 pandemic and New York City regulations triggered the force majeure clause and excused rent payment obligations.) (08/05/2020 Complaint; 08/05/2020 Order to Show Cause)

Schulte Roth & Zabel LLP v. Metropolitan 919 3rd Avenue, No. 655632/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff tenant seeks breach of contract damages and a declaration that it is entitled to rent abatement because the pandemic and/or the Governor’s Orders constitute “Unavoidable Delays” pursuant to the contract, regardless of whether they are also force majeure events.) (10/23/2020 Complaint)

Simpson Thacher & Barlett LLP v. VBGO 425 Lexington LLC, No. 653415/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff/tenant seeks a declaration that it is entitled to rent abatement under Force Majeure provision of commercial lease, alleging that it was forced to vacate its premises for a period of sixty (60) days due to a government order and a “national or other public emergency”) (07/27/2020 Complaint) (8/19/2020 Reply to Counterclaims)

Trustees of Columbia Univ. v. Edison Ballroom LLC, No. 156789/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff seeks to recover deposit made to Defendant event space provider, arguing that the contract provides that the deposit must be refunded if a force majeure event occurs and that Governor’s Orders prohibiting non-essential gatherings were force majeure events because the Orders prevented the contracted event from occurring; Defendant argues that the contract should simply be suspended until performance is possible.) (08/26/2020 Complaint; 9/28/2020 Answer with Counterclaims; 10/14/2020 Reply to Counterclaims)

Victoria’s Secret Stores, vs. Herald Square Owner LLC, No. 651833/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff seeks to annul commercial property lease under doctrines of frustration of purpose and impossibility resulting from COVID-19 and related government mandated shutdowns; Defendant argues the lease explicitly allocated the risk of plaintiff tenant being unable to occupy the premises in the absence of a force majeure clause in the lease; Defendant seeks summary judgment on the same grounds; Plaintiff opposes summary judgment, arguing that the absence of a force majeure clause does not preclude frustration of purpose and impossibility excuses; Defendant argues in further support of summary judgment that the lease allocated risk for this type of harm, and the precise cause of harm is irrelevant.) (06/08/2020 Complaint; 06/29/2020 Answer and Counterclaims; 06/29/2020 Defendant’s Memorandum of Law in Support of Motion for Summary Judgment; 07/29/2020 Plaintiffs’ Memorandum of Law in Opposition to Motion for Summary Judgment; 08/13/2020 Defendant’s Reply Memorandum of Law in Further Support of Defendant’s Motion for Summary Judgment) (8/19/2020 Reply to Counterclaims)

Valentino U.S.A., Inc. v. 693 Fifth Owner LLC, No. 652605/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff/tenant seeks a declaration that the lease of its commercial property has been frustrated by the COVID-19 pandemic and related Executive Orders, and in the alternative, seeks a declaration that its performance under the lease agreement has been rendered impossible; Defendant/landlord seeks dismissal of the Complaint on the grounds that the lease agreement contains a clause allocating the risk of closure to the plaintiff/tenant in the event of “unavoidable delays,” defined to include “restrictive governmental laws or regulations ... acts of God ... or other reason of a similar or dissimilar nature.”) (06/21/2020 Summons and Complaint; 07/27/2020 Defendant’s Memorandum of Law in Support of Motion to Dismiss) (9/14/2020 Plaintiff’s Opposition to Motion to Dismiss) (09/28/2020 Defendant’s Reply Memorandum of Law in Support of Motion to Dismiss)

Alexandria Gayle Williams v. 4545 East Coast LLC, No. 713984/2020 (N.Y. Sup. Ct. Queens Cty. 2020) (Plaintiff apartment tenant seeks rescission of lease, arguing that pandemic and Governor’s Orders destroyed all personal and economic value in the lease and that the Court should excuse performance pursuant to an “Implied Force Majeure” clause; Defendant broadly denies Plaintiff’s claims as “without basis in law” and counterclaims for breach of contract.) (08/25/2020 Complaint; 10/09/2020 Answer with Counterclaims)

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