The Problem. After spending millions of dollars in licensing and implementation fees for a new warehouse system, Jewelry Television’s software implementation project was a failure. IBM’s unit Sterling had promised millions of dollars in savings and increased profits – none of it was true. And, to make matters worse, IBM was threatening to sue for monies owed under the contracts.

The Response. David, after having worked on failed software implementation cases against SAP, Accenture and others, lead the investigation. He worked with the company’s chief information officer, interviewed relevant witnesses, reviewed the contracts and communications with the vendor and drafted the complaint, a copy of which can be found here.

The Motion to Dismiss. IBM was represented by the international law firm of Kilpatrick Townsend & Stockton LLP, which moved to dismiss all tort claims against the vendor. David wrote the briefs opposing the motion to dismiss and won: the trial judge refused to dismiss any of the claims.

Discovery. David was in charge of the discovery, which was contentious and vigorous. He forced IBM to produce documents from other projects and won. He oversaw a massive document production and deposed the vendor’s key witnesses, including the lead salesman from the services arm of the company.

A Key Witness Flips. After his deposition, the lead salesman told the company’s former CIO that David’s questions had left him shaken and he wanted the company to know that the vendor had, in fact, committed fraud. Based on that disclosure, the discovery was re-opened and counsel for IBM was disqualified from representing the witness. The salesman later explained that it was because of David’s examination that he realized that the company had been misled by the software vendor and he provided a statement under oath to that effect. David also deposed the CIO of a competitor whose company asserted that it too had been damaged by the vendor’s products and services. Following an unsuccessful motion in limine, this CIO’s testimony was shown to the jury.

Summary Judgment. In March 2015, David separated from Kasowitz, Benson and the client asked him if he would start his own law firm and quarterback the litigation going forward. In a conference with the judge, David argued the company’s opposition to the vendor’s motion for summary judgment. The judge refused to dismiss the tort claims. Shapiro Litigation Group opposed a motion by the vendor to inspect the client’s systems and won. David also worked with the liability, damages, software and implementation methodology experts.

The Problem: A Vicious Attack at a Resort. A guest at a Bahamian resort (a young girl) alleged that she had been physically and sexually assaulted by a resort employee with a broken beer bottle and left for dead on the beach with multiple lacerations, a fractured skull, and a punctured lung.

The Response: Move to Dismiss. Representing two corporations who owned the license for the resort, the Shapiro Litigation Group adopted an aggressive position. We moved to dismiss based on “documentary evidence,” demonstrating that the employee had no criminal record and that the attack took place off-site, on the beach, which is owned by the government. Much was at stake if the case proceeded, including, the wrenching prospect of having to examine the young victim during discovery and at trial. David argued the motion to dismiss.

The Result: Case Dismissed. In an almost unprecedented decision for a commercial tort action of this nature, the complaint was dismissed in its entirety. The court wrote that the firm’s papers “conclusively establish beyond a substantial question both that the events complained of did not take place on the resort premises and that [the corporations] were not in possession of any information that would have caused a reasonably prudent person to further investigate [the attacker] as a prospective employee.”

The court noted that, given the materials brought to its attention by the firm, it had no choice but to dismiss: “There can be no doubt that this was a horrific, vicious attack. But, under the circumstances presented and on the instant paper submitted, this Court is constrained to determine that the law of this State does not provide recompense for the child’s injuries as against [the corporate] defendants”

The Problem: A Subordination Agreement Blocks Repayment. The client had loaned a significant sum to a pair of business financing firms; the promissory note gave the client the right to accelerate the note and demand repayment, which it did; but there was a subordination agreement: until the borrowers’ senior lender had been paid in full, the client could not “directly or indirectly ask, demand, sue for, take or receive payment of all or any part of” the monies owed under the promissory note.

The borrower refused to pay.

The Response: Motion for Summary Judgment in Lieu of Complaint. Using a provision of New York’s civil practice statute for situations where a sum certain is owed, the firm moved for “summary judgment in lieu of complaint.” The borrower opposed the motion and moved to dismiss.

The Result: Motion Granted. The Trial Judge granted the motion. David argued that, under New York law, the language of the subordination agreement was not a bar to bringing an action to recover the monies owed and obtaining a judgment. In what may be a case of first impression in New York State, the court found in favor of the client and, in a series of opinions, held that the subordination agreement did not bar the client’s lawsuit. The court granted the motion for summary judgment in lieu of complaint and held that the client had the right to reduce the defaulted debt to judgment.