News


Article on Decryption Orders Issued to Technology Companies

In July 2019, the Harvard Journal on Legislation published an article by Sher Tremonte associate Jennifer X. Luo. The article, titled “Decoding Pandora’s Box: All Writs Act and Decryption Orders” discusses decryption orders compelling technology companies to provide law enforcement with access to consumer devices.  A link to the article may be found here.

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Sher Tremonte Wins on Issue of First Impression in the Third Circuit, Board Observers Cleared of Liability under Section 11(a)(3) of the 1933 Act

On July 23, 2019, attorneys Michael Tremonte and Justin Gunnell secured a major victory in the U. S. Court of Appeals for the Third Circuit, which reversed a lower court ruling and directed the entry of summary judgment in favor of Sher Tremonte’s client in an important decision interpreting the scope of liability under Section 11(a)(3) of the Securities Act of 1933. Section 11(a)(3) of the 33 Act imposes near strict liability for false or misleading statements on “every person who, with his consent, is named in the registration statement as being or about to become a director, person performing similar functions, or partner.”  15 U.S. Code § 77k(a)(3) (emphasis added).  The shareholders of British Virgin Islands-based Tibet Pharmaceuticals, Inc. sued the company’s officers and directors for alleged material misrepresentations and omissions contained in Tibet’s IPO registration statement, and had sought to impose 11(a)(3) liability on Sher Tremonte’s client, Hayden Zou, who was listed as a “board observer” in the prospectus. Sher Tremonte successfully moved for an interlocutory appeal of the lower court’s decision allowing the case to proceed to trial against Mr. Zou (read the decision granting interlocutory review here), who faced potential joint and several liability for damages totaling $16.4 million — the full amount raised in Tibet’s IPO.  On appeal, the Third Circuit adopted Sher Tremonte’s lead arguments and held, as a matter of first impression, that a non-voting board observer cannot be subjected to liability under  Section 11(a)(3), and that determinations of liability under this provision must be decided as a matter of law (read the full opinion here). News reports about this case can be found here: Tibet’s Board Observers Not Liable for IPO Omission (Bloomberg Law) 3rd Circuit Finds Nonvoting Board Observers Not Liable in Shareholder Lawsuits (Law.com) 3rd Circ. Says Board Observers Not Same As Directors (Law360)

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Sher Tremonte Wins Appeal Upholding Dismissal of $8 Million Claim Against Private Equity Firm

On July 2, 2019, the New York State Supreme Court Appellate Division, First Department denied an appeal of an order dismissing all claims against Sher Tremonte’s client, a private equity firm. The plaintiff purchased a NYC-based organic juice business from Sher Tremonte’s client, the former majority owner of the business.  The purchaser filed a lawsuit against Sher Tremonte’s client, alleging that it breached the sale contract by failing to provide good title to all ownership interests in the business.  The lower court found that Sher Tremonte’s client did provide good title under the sale contract and dismissed the $8 million complaint against it.  The appellate court confirmed the lower court’s decision in its entirety.  The case was handled by Sher Tremonte partners, Michael Tremonte and Mark Cuccaro.  Read the opinion here.

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Sher Tremonte Secures Multiple Pro Bono Victories

Over the last month, Sher Tremonte LLP has notched three significant victories in pro bono cases. In May, associate and Pro Bono Coordinator Noam Biale won release of a lawful permanent resident who had been detained by Immigration and Customs Enforcement (“ICE”) for nearly a year-and-a-half and who was at risk for immediate deportation. Judge Pamela K. Chen of the Eastern District of New York appointed Sher Tremonte to represent the individual, who had filed a pro se coram nobis petition in her court. Working with state appellate lawyers and immigration counsel, Mr. Biale was able to help our client take advantage of a change in New York law that made his prior conviction no longer a deportable offense, and won his release from immigration custody. Also in May, counsel Erica Wolff, along with co-founding partner Michael Tremonte and associates Tasha Branford and Anna Estevao, represented a woman in a civil rights case in federal district court in White Plains. Our client had been the victim of excessive force by an officer in the Putnam County Sheriffs’ Office, who had used an inappropriate maneuver to tackle her to the ground causing her to sustain serious injuries to her face. The firm was again appointed by the court, in this case to take the matter to trial. Ms. Wolff and the Sher Tremonte team prepared the case in an extremely short period of time, and, on the eve of trial, obtained a very favorable settlement. Finally, on June 18, Sher Tremonte won a pro bono victory in the United States Court of Appeals for the Second Circuit, obtaining a rare reversal of the district court in a summary order. Our client, Kevin Jefferson, had pursued a civil rights claim in the Eastern District of New York, but the district court dismissed his case for failure to prosecute because he missed one court deadline and then failed to pay a monetary sanction the court had imposed on him, which he could not afford. On appeal, associate Amanda Ravich (with Noam Biale) argued that delays in the district court were caused by both parties and the court itself, and that the monetary sanction violated due process. The Second Circuit agreed, holding that the dismissal of Mr. Jefferson’s case was an abuse of discretion, and imposition of a monetary sanction he could not afford was plain error. Sher Tremonte maintains an active pro bono docket, reflecting the firm’s substantial commitment to litigating on behalf of clients in the public interest. The firm has appeared as pro bono counsel at all levels of the state and federal courts, including the U.S. Supreme Court, and its reputation for “punch[ing] above [its] weight” in the public interest arena was profiled last year in Law360.

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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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