Indeed, nearly every case CONCACAF cites addresses the remedy for a civil breach of contract under various state laws. See, e.g., British Am. & E. Co., Inc. v. Wirth Ltd., 592 F.2d 75 (2d Cir. 1979) (addressing the acceptance of a bribe as a breach of contract under New York law);ExcelHandbag Co., Inc. v. Edison Bros. Stores, Inc., 630 F.2d 379 (5th Cir. 1980) (recognizing a commercial bribery defense under Florida law in a breach of contract dispute). While CONCACAF does cite one case from the Ninth Circuit supporting the application of agency theory in federal criminal restitution proceedings with respect to bribe payments (Dkt. 1151, at 2-3 (citing United States v. Gaytan, 342 F.3d 1010 (9th Cir. 2003)), that theory is foreclosed here by the Second Circuit's more recent decision in United States v. Finazzo, 850 F.3d 94 (2d Cir. 2017).

Third, in order to prove that the arbitrator intentionally disregarded the law, the movant must prove that the arbitrator knew of the law and understood its applicability to the situation before him or her. Id; see also DiRussa v. Dean Witter Reynolds, Inc., 121 F.3d 818, 823 (2d Cir. 1997) (arbitrators knowledge of the law is presumed to be no more than that of the law presented to him or her by the parties). In an attempt to fulfill the first stage of the test, Webb proposes, citing British American Eastern Co., Inc. v. Wirth Ltd., 592 F.2d 75, 78 (2d Cir. 1979), that inherent in a breach of contract claim, the claim brought by RLR, is the movant's burden of proving performance. Webb asserts that "[i]t is black letter law that every breach of contract claim requires proof by the party claiming breach that it performed under the contract."

12. AEL bears the burden of proving facts which would establish any remedial rights. British American Eastern Co., Inc. v. Wirth Ltd., 592 F.2d 75, 78 (2d Cir. 1979) ("New York law . . . clearly places the burden of proof upon the plaintiff"). Therefore, to recover any damages, AEL must establish by a preponderance of the evidence that the contract did not require AEL to perform CDRL's A039 and A040.

Although the Funds raised the issue of their own performance in their Verified Amended Complaint and referred to a payment that had been escrowed (see App. to Opening Br. at A115), and although Patriarch denied that the Funds had performed and asserted that the Funds had breached by withholding payment, these issues were not identified in the pre-trial order as issues to be litigated. Thus, we believe that British Am. & E. Co. v. Wirth Ltd., 592 F.2d 75 (2d Cir. 1979) is distinguishable. There, the Court of Appeals for the Second Circuit concluded that "[t]he record provides no basis for supposing that [the defendant] ever conceded performance by [the plaintiff] or waived the defense raised by the answer."

"An employee owes his employer good faith and loyalty and cannot publicly downgrade his employer's reputation under New York law." British Am. & E. Co. v. Wirth Ltd., 592 F.2d 75, 80 (2d Cir. 1979); see also Ritasa Freight Servs., Inc. v. Zucchi, 161 A.D.2d 187, 188 (1st Dept 1990) ("The allegations that corporate officers...disparaged plaintiffs' reputation in the business community...sufficiently state a valid cause of action" sought by the plaintiff). Plaintiff alleges that Padawer "indisputably engaged in a stunning display of disloyalty" when he bad-mouthed JAKKS to OAA, thereby deliberately damaging JAKKS relationship and unlawfully putting his own interests above those of his employer.

There also appears to be a similar, albeit less developed, privilege covering a speaker's communications designed to protect the speaker's own legitimate interests. See British Am. E. Co. v. Wirth Ltd., 592 F.2d 75, 81 (2d Cir. 1979); Restatement (Second) of Torts § 594 (1977). The magistrate judge concluded that the Statements were covered by both of these privileges.

The principal argument of Canadian Land (SF) and HCL (SF) on appeal is that the district court erred in dismissing the "faithless agent" defense to foreclosure under New York law. That defense is an attempt to avoid the established rule of agency law that a principal is liable to third parties for the acts of an agent operating within the scope of the agent's real or apparent authority. See British American Eastern Co. v. Wirth Ltd., 592 F.2d 75, 80 (2d Cir. 1979). Appellants Canadian Land (SF) and HCL (SF) do not contest that appellee Security Pacific, the mortgagee of the properties involved here, was a third party.

First, on the issue of the Agreement's requirement for timing of payment for excess frees, Record Club, as the plaintiff seeking damages for United's alleged anticipatory repudiation, has the burden of proof. See British American Eastern Co. v. Wirth Ltd., 592 F.2d 75, 78 (2d Cir. 1979) ("New York law . . . clearly places the burden of proving performance in an ordinary contract action upon the plaintiff. . . ."); 3A Corbin on Contracts § 655, at 143. Record Club was required to, and did, plead that it "ha[d] complied with all of its obligations under the Agreement."

Nyland (SF)'s sole claim on appeal is that Nyland should not be held responsible for the mortgage defaults because, it contends, they were caused by New York Land's breach of fiduciary duty as managing agent for 40 Wall Street. This contention is at odds with the established rule that a principal is liable to third parties for the acts of an agent operating within the scope of his real or apparent authority. British American Eastern Co. v. Wirth, Ltd., 592 F.2d 75, 80 (2d Cir. 1979). Moreover, "a principal is liable for an agent's fraud though the agent acts solely to benefit himself, if the agent acts with apparent authority."

In several other jurisdictions, the value of the bribe is a minimum acceptable measure of damages. See, e.g., Williams Elecs. Games, Inc. v. Garrity, 366 F.3d 569, 576 (7th Cir. 2004); Brit. Am. & E. Co. v. Wirth Ltd., 592 F.2d 75, 80 (2d Cir. 1979). The bribes paid estimate the higher value that Atalian paid to Taj compared to what it would have paid another subcontractor or what it would have paid to perform the work itself.