Credit Suisse First Boston v. Intershop Commun

21 Citing cases

  1. Perry v. Duoyuan Printing, Inc.

    232 F. Supp. 3d 589 (S.D.N.Y. 2017)   Cited 2 times   1 Legal Analyses

    Globus has also been extended in this District "to prohibit indemnification of a party who settles securities law claims without admitting fault, unless that party actually demonstrates that it is without fault." Credit Suisse First Boston, LLC v. Intershop Comm'ns AG , 407 F.Supp.2d 541, 547 (S.D.N.Y. 2006) (citing Greenwald v. Am. Medcare Corp. , 666 F.Supp. 489, 493 (S.D.N.Y. 1987) (allowing a cross-claim for indemnification to continue where director settled, but only if he proved he was without fault and therefore so entitled)).Cross–Claimants maintain that Globus' holding is limited to circumstances where an underwriter is adjudicated as guilty of wrongful conduct.

  2. In re Colonial Bancgroup, Inc. Securities Litigation

    CIVIL ACTION NO. 2:09cv104-MHT (WO) (M.D. Ala. Jan. 7, 2010)   Cited 7 times

    Underw. Defs.' Reply at 3 (Doc. No. 251) (citing Credit Suisse First Boston, LLC v. Intershop Communications AG, 407 F. Supp. 2d 541, 548 (S.D.N.Y. 2006) (Holwell, J.) ("[I]n the view of the SEC, the policies underlying the securities laws are not offended by indemnification by the issuer where the indemnitee has successfully defended itself on the merits."); Greenwald v. Am. Medcare Corp., 666 F. Supp. 489, 493 (S.D.N.Y. 1987) (Leisure, J.)). The underwriter defendants maintain that they fully expect to prevail in this suit and that the lead plaintiff has failed to explain why the indemnification agreement could not be upheld if all defendant do succeed.

  3. Children First Foundation, Inc. v. Martinez

    1:04-CV-0927 (NPM) (N.D.N.Y. Dec. 27, 2007)   Cited 23 times

    Here, Judge Treece analyzed the motion to amend on futility grounds under the standard for deciding a motion to strike pursuant to Federal Rule of Civil Procedure 12(f), noting that the differences between the standard for deciding a motion to strike under Rule 12(f) and a Rule 12(b)(6) motion to dismiss are "semantic" as they are "mirror images" of one another. See Credit Suisse First Boston, LLC v. Intersop Comm'n AG, 407 F.Supp.2d 541, 546 (S.D.N.Y. 2006). Therefore, Judge Treece decided whether or not Dunn's proposed affirmative defenses would be futile utilizing the Rule 12(b)(6) standard, which is that a claim or defense may not be dismissed so long as the pleading includes enough facts to state such a claim or defense "that is plausible on its face."

  4. Children First Foundation, Inc. v. Martinez

    631 F. Supp. 2d 159 (N.D.N.Y. 2007)   Cited 4 times

    When amending an answer to add defenses, however, futility should be raised in the context of a motion to strike pursuant to FED. R. CIV. P. 12(f).In re Silicon Graphics, Inc., 363 B.R. 690, 700 (Bankr. S.D.N.Y. 2007) (citing Credit Suisse First Boston, LLC v. Intershop Comm'n AG, 407 F.Supp.2d 541, 546 (S.D.N.Y. 2006) for the proposition that denying a motion to amend to add an affirmative defense is proper when such amendments are insufficient as a matter of law). The distinction between the standards set forth in Rule 12(b)(6) and 12(f) are "semantic[al]" insofar as they are "mirror image[s]" of each other. Credit Suisse First Boston, LLC v. Intershop Comm'n AG, 407 F.Supp.2d at 546.

  5. CREDIT SUISSE FIRST BOSTON v. INTERSHOP COMM AG

    04 Civ. 6854 (RJH) (S.D.N.Y. Sep. 25, 2006)

    BACKGROUND The Court assumes familiarity with its prior decision in this action, Credit Suisse First Boston, LLC v. Intershop Communications AG, 407 F. Supp. 2d 541 (S.D.N.Y. 2006), and in the interest of brevity will limit its background discussion to facts relevant to the present motion. In this action, plaintiff, Credit Suisse First Boston, LLC ("CSFB"), seeks to enforce the indemnification clause of its September 28, 2000 underwriting agreement for Intershop's initial public offering (the "IPO"), to collect fees incurred defending a securities class action lawsuit filed in connection with the IPO (the "Class Action").

  6. Residential Funding Co. v. HSBC Mortgage Corp. (USA) (In re Residential Capital, LLC)

    524 B.R. 563 (Bankr. S.D.N.Y. 2015)   Cited 15 times

    Indemnification for liability on securities claims is generally disfavored by courts, as indemnification may subvert the anti-fraud policies underlying federal securities laws. SeeCredit Suisse First Boston, LLC v. Intershop Commc'ns AG, 407 F.Supp.2d 541, 546 (S.D.N.Y.2006). In its landmark decision, Globus v. Law Research Service, Incorporated, 418 F.2d 1276 (2d Cir.1969), the Second Circuit held that indemnification is properly denied where an underwriter was determined to have actual knowledge of material misstatements in a registration statement.

  7. Residential Funding Co. v. HSBC Mortg. Corp. (In re Residential Capital, LLC)

    Adv. Proc. No. 14-01926 (MG) (Bankr. S.D.N.Y. Feb. 3, 2015)

    Indemnification for liability on securities claims is generally disfavored by courts, as indemnification may subvert the anti-fraud policies underlying federal securities laws. See Credit Suisse First Boston, LLC v. Intershop Commc'ns AG, 407 F. Supp. 2d 541, 546 (S.D.N.Y. 2006). In its landmark decision, Globus v. Law Research Service, Incorporated, 418 F.2d 1276 (2d Cir. 1969), the Second Circuit held that indemnification is properly denied where an underwriter was determined to have actual knowledge of material misstatements in a registration statement.

  8. In re Wells Fargo & Co. Stockholder Derivative Litig.

    20-cv-08750-MMC (N.D. Cal. Feb. 4, 2022)   Cited 1 times

    See Cohen v. Viray, 622 F.3d 188, 195 (2d Cir. 2010) (finding indemnification clause in settlement agreement impermissibly usurped SEC's “sole[]” statutory authority to both enforce, and grant exemption under, section 304 of the Sarbanes-Oxley Act); Baker, Watts & Co. v. Miles & Stockbridge, 876 F.2d 1101, 1108 (4th Cir. 1989) (finding no implied right to indemnification under section 12(2) of the Securities Act of 1933; further finding indemnification against public policy where plaintiff's violation had been adjudicated in earlier action); Credit Suisse First Bos., LLC v. Intershop Commc'ns AG, 407 F.Supp.2d 541, 546-49 (S.D.N.Y. 2006) (discussing cases where indemnification found to violate public policy under differing circumstances and statutes). Moreover, numerous courts, in considering federal securities claims, including claims brought under section 14(a), have upheld application of exculpation clauses adopted pursuant to section 102(b)(7), and, although that statute was enacted over 35 years ago, see S.B. 533, 133d Gen. Assemb. (Del. 1986), there are, to the Court's knowledge, no cases holding to the contrary.

  9. Pristine Jewelers NY, Inc. v. Broner

    492 F. Supp. 3d 130 (S.D.N.Y. 2020)   Cited 14 times

    "In the case of an amendment to add a new defense, futility ought technically [to] turn on the proposed defense's legal sufficiency and whether it is subject to a motion to strike under Fed. R. Civ. P. 12(f)," though the distinction is "largely semantic" since the standard by which "12(f) and 12(b)(6) motions are evaluated are mirror images." Credit Suisse First Boston, LLC v. Intershop Commc'ns AG , 407 F. Supp. 2d 541, 546 (S.D.N.Y. 2006) (quotation marks and internal citations omitted). The plausibility standard of Twombly applies to determining the sufficiency of an affirmative defense, such that a party must "support [its] defenses with some factual allegations to make them plausible."

  10. Amley v. Sumitomo Mitsui Banking Corp.

    No. 1:19-cv-3777-CM (S.D.N.Y. Sep. 23, 2020)

    Courts will not grant amendments that are "obviously insufficient" for the purpose being offered. See Gorman, No. 13 CIV. 6486 (KPF), 2014 WL 7404071, at *3 (S.D.N.Y. Dec. 31, 2014) (citing Suisse First Bos., LLC v. Intershop Commc'ns AG, 407 F.Supp.2d 541, 546 (S.D.N.Y. 2006). Defendant may not claim to have "been motivated by knowledge it did not have and it cannot now claim that the employee was fired for the nondiscriminatory reason."