News


Sher Tremonte Prevails Against Newsweek

On April 11, 2019, the New York State Supreme Court Appellate Division, First Department denied Newsweek Media Group, Inc.’s (“Newsweek”) appeal seeking to set aside a judgment in favor of Sher Tremonte’s client, a prominent internet advertising company.  The litigation stemmed from a settlement agreement requiring Newsweek to make payments to Sher Tremonte’s client within a certain timeframe, or else be obligated to pay a larger amount.  Newsweek made multiple late payments.  The appellate court rejected Newsweek’s argument that the lateness of its payments could be overlooked, and therefore upheld the judgment in the larger amount in favor of Sher Tremonte’s client.  Read the opinion here.

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Sher Tremonte Wins Complete Dismissal of Securities Fraud Suit

On March 30, 2019, the U.S. District Court for the Southern District of New York granted Sher Tremonte’s motion to dismiss an action against the firm’s client under Section 20 of the Securities and Exchange Act. Plaintiffs, institutional investors who had purchased almost $1 million worth of common stock in Arista Power (a start-up focused on developing wind turbines), alleged that Sher Tremonte’s client, the former Chairman of Arista’s Board of Directors, was liable for the loss of plaintiffs’ investments under a theory of control person liability for alleged misrepresentations made by Arista’s CEO concerning the source of Arista’s funding. After previously granting motions to dismiss the first amended complaint with leave to replead, the Court has now dismissed the action in its entirety with prejudice, finding that plaintiffs’ second amended complaint failed to adequately allege that the purported misrepresentations actually caused plaintiffs’ losses and thus could not state a claim against Sher Tremonte’s client for control person liability. The case was handled by partner Robert Knuts and counsel Erica A. Wolff. Read the full decision here.

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Sher Tremonte Secures Dismissal of Claims Against Co-Founders of Australian Tech Company

On January 16, 2019, Sher Tremonte secured a dismissal on behalf of its clients, two co-founders of an Australian legal services technology business, in a lawsuit in New York County Supreme Court alleging that they had improperly interfered with their former business associate’s subsequent business endeavors.  The plaintiff, the CEO of a tech company headquartered in New York and brother of one of the defendants, alleged that the defendants made derogatory statements about how he had defrauded them out of their ownership interest in the business the three of them had co-founded, and that these statements interfered with his ability to engage in other transactions.  Defendants filed a motion to dismiss, arguing that the defendants, as residents of Australia with no significant connections to New York, are not subject to the jurisdiction of New York courts.  As a result of this motion, the plaintiff voluntarily agreed to withdraw the suit in New York, resulting in a court order dismissing the action.

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Appellate Court Upholds Rare Dismissal of Action to Confirm Arbitration Award

On December 27, 2018, the New York State Supreme Court Appellate Division, First Department denied an appeal seeking to reverse the dismissal of an action to confirm an unfavorable arbitration award against Sher Tremonte’s client, a real estate investor.  The lower court had dismissed the case on the ground that service had not been effected because the process server did not properly affix the legal papers to the defendant’s door.  The appellate court rejected the plaintiffs’ attempt to have this dismissal reversed and further denied plaintiffs’ request for additional time to effect service on Sher Tremonte’s client.  Read the opinion here.

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Sher Tremonte Promotes Justin Gunnell and Erica Wolff to Counsel

Sher Tremonte is pleased to announce that Justin J. Gunnell and Erica A. Wolff have been promoted to Counsel.  

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11 Sher Tremonte Attorneys Named 2018 Super Lawyers

Super Lawyers has identified eleven Sher Tremonte attorneys as 2018 New York Metro Super Lawyers or Rising Stars. Published annually, Super Lawyers selects leading professionals who have attained a high degree of peer recognition, as well as excellence in their practice area. Sher Tremonte is proud that two of its partners Justine Harris and Michael Tremonte were also included on the Top 100: 2018 New York - Metro Super Lawyers list. Ms. Harris was additionally recognized on the Top 50: 2018 Women New York - Metro Super Lawyers list. Attorneys selected to these lists are measured against 12 indicators of peer recognition and professional achievement. Here is the complete list of Sher Tremonte partners and associates named as 2018 Super Lawyers: Noam Biale, Associate Rising Star in Criminal Defense 2017-2018 Michael Gibaldi, Associate Rising Star in Criminal Defense: White Collar 2017-2018 Justin Gunnell, Associate Rising Star in Business Litigation 2015-2018 Justine Harris, Partner Super Lawyer in Criminal Defense: White Collar 2013-2018 Yonatan Jacobs, Associate Rising Star in Business Litigation 2014-2018 Robert Knuts, Partner Super Lawyer in Securities Litigation 2006-2010, 2013-2018 Kimo Peluso, Partner Super Lawyer in Business Litigation 2017-2018 Justin Sher, Partner Super Lawyer in Business Litigation 2014-2018 Michael Tremonte, Partner Super Lawyer in Business Litigation 2014-2018 Theresa Trzaskoma, Partner Super Lawyer in Criminal Defense: White Collar 2010-2018 Erica Wolff, Associate Rising Star in Civil Litigation 2016-2018

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In Rare Win by Shareholder Against Manhattan Co-Op Board, Court Rules “The Business Judgment Rule is not a Get-Out-of-Jail-Free Card”

On September 14, 2018, the New York Supreme Court granted a petition filed by Sher Tremonte on behalf of its client, a shareholder and tenant of a co-op apartment on Manhattan’s Upper West Side, against a co-op board.  After initially approving the shareholder’s application to purchase and combine an adjacent apartment, the board attempted to rescind its approval and impose new conditions.  Accepting Sher Tremonte’s argument that the board’s original approval constituted a binding commitment, the court held that the board was “estopped from setting conditions that were not already contained” in its prior resolution.  The Court ruled that the board’s decision to rescind its prior approval was not entitled to the protection of the business judgment rule, explaining “the Business Judgment Rule is not a get-out-of-jail-free card protecting any and all board activity.”  Read the court’s full opinion here.

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Sher Tremonte Wins Landmark Expansion of Prisoners’ Free Speech Rights

On May 9, 2018, Sher Tremonte won a precedent-setting victory for prisoners’ constitutional rights in the U.S. Court of Appeals for the Second Circuit. Prison guards at a New York State prison placed Sher Tremonte’s client, Mark Burns, in segregated confinement for nearly nine months because he refused their demands to provide information about other prisoners on an ongoing basis. Mr. Burns filed suit pro se in the U.S. District Court for the Northern District of New York alleging retaliation for the exercise of his constitutional rights. The district judge held that Mr. Burns had no right to refuse to become an informant for the guards. On appeal, the Second Circuit appointed Sher Tremonte as pro bono counsel to brief a novel legal issue: whether an incarcerated individual has a constitutional right to refuse to become a prison informant. Although no appellate court in the country had previously recognized such a “right not to snitch,” Sher Tremonte attorneys Noam Biale and Michael Gibaldi successfully argued that the First Amendment’s “right not to speak” protected Mr. Burns’s refusal to provide information. In an opinion by Circuit Judge Pooler, the Second Circuit adopted Sher Tremonte’s First Amendment theory and, breaking new legal ground, held that “the First Amendment protects both a prisoner’s right not to serve as an informant, and to refuse to provide false information to prison officials.” In reaching that conclusion, the court drew on authorities from John Adams to Justice Gorsuch, reasoning that “compelled speech presents a unique affront to personal dignity” and that “forcing an inmate to serve as an informant on an ongoing basis is not reasonably related to a legitimate penological purpose.” The court held that the guards’ “arbitrary incursion” on Mr. Burns’s “strong First Amendment interest . . . cannot be countenanced under our constitutional system.” Read the full decision here and Sher Tremonte’s opening brief here. Read press coverage on Sher Tremonte’s victory here and here, and listen to NPR’s The Takeaway discuss the decision here.

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Sher Tremonte Wins Rare Petition for Interlocutory Appeal before the Third Circuit in IPO Class-Action Fraud Suit

On February 21, 2018, Sher Tremonte LLP won a motion for interlocutory appeal before Judge Michael Vazquez of the United States District Court for the District of New Jersey allowing its client to petition the Third Circuit for immediate relief.  Class-action Plaintiffs, shareholders of a publicly-traded company specializing in Tibetan medicine, seek to hold the Company’s non-director, non-voting, board observers (including Sher Tremonte’s client who was appointed as an observer to the Board of Directors) strictly liable for alleged misrepresentations in the Company’s IPO registration documents.  Sher Tremonte lawyers Michael Tremonte, Justin Gunnell and Scott Cargill requested the District Court’s permission to present to the Third Circuit the question of whether a non-voting board observer can be held strictly liable under Section 11(a)(3) of the Securities Act of 1933 as a person “named in the registration statement” as “performing similar functions” to a director.  In granting Sher Tremonte’s motion, Judge Vazquez found that the “Third Circuit’s resolution of what the correct legal standard is regarding liability of nondirectors under Section 11 would help facilitate the development of law.”  Read the District Court’s full opinion here. On April 4, 2018, over Plaintiff’s opposition, the Third Circuit granted Sher Tremonte’s petition, permitting it to file the interlocutory appeal. Read the Third Circuit order granting the petition here.

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Sher Tremonte Files Second Circuit Amicus Brief on Behalf of Public Health Advocacy Groups

On Wednesday, February 28, 2018, Sher Tremonte LLP filed an amicus curiae brief in the United States Court of Appeals for the Second Circuit on behalf of six of the nation’s leading public health advocacy groups, including the Campaign for Tobacco-Free Kids (the lead amicus), the American Cancer Society Cancer Action Network American, the American Lung Association, New York State American Academy of Pediatrics, Chapters 2 & 3, the Public Health Law Center at the Mitchell Hamline School of Law, and Truth Initiative Foundation. The amicus brief was filed in State of New York v. United Parcel Service, Inc., in support of plaintiffs and appellees, i.e. the State and City of New York, who were awarded, among other remedies, a total of $157.1 million in statutory civil penalties against the nation’s leading courier for violating various state and federal tobacco-control laws in transporting and delivering unstamped cigarettes (i.e., cigarettes that evade taxes).  On appeal, the defendant is challenging the penalty award, including the statutory penalties, as excessive. In its amicus brief, Sher Tremonte argues that the statutory penalties assessed are proportional and constitutionally permissible in light of the devastating nature and scope of the smoking epidemic and the vital public health interest in reducing smoking through cigarette taxation. The amicus brief was authored by partner Kimo S. Peluso and associate Heather Y. Han with substantial contributions from Dennis Henigan and Mark Greenwold of the Campaign for Tobacco-Free Kids.

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